U.S. Environmental Protection Agency
Region 9
November 1995
EPA Region 9 Employees'
Indian Program Resource Manual
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EPA Region 9 Employee rs
Indian Program Resource Manual
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Preface
This Manual provides a reference of EPA documents and other useful
materials that is designed to help EPA Region 9 managers and staff work
more effectively with Tribal governments. A compilation of materials is
presented that follows the growth of EPA's relationship with Tribal
entities, with some basic legal and cultural background. The Manual is
organized into six sections that highlight key developments in the
national and regional Indian Programs, and contains selected legal
history and cultural readings from literature collected by the Region 9
Indian Program Team.
The first section, National Policy, begins with the 1994 "Government to
Government Relations with Native American Tribal Governments" memorandum
from President Clinton followed by the original 1984 Indian Policy. Key
EPA supporting policy documents and the list of Federally Recognized
Tribes are included. This section also contains the "Draft Policy
Guidance on EPA Civil and Administrative Enforcement Against American
Indian Tribes." Although the Guidance does not represent official
agency policy, it captures the intent of EPA's enforcement approach on
tribal lands to assist Tribes in meeting compliance with environmental
reguirements. Ongoing review and discussions may lead to a final policy
in the near future.
The second section. Tribal Eligibility and Funding-, contains an overview
of funding availability and Federal Register announcements granting EPA
authority to provide financial assistance to tribes.
The third section, Region 9, provides Regional Indian Program
developments including the Draft Regional Strategy for Environmental
Protection on Indian Lands, the Regional Indian Program Committee and
Regional Tribal Operations Committee charters, information on Tribal EPA
agreements, and other Region specific information.
The fourth section, Legal History, contains a brief overview of Indian
legal history, readings on Indian sovereignty, jurisdiction, Public Law
280, and important definitions.
The fifth section, Cultural/Genex-al, contains information to promote
cross-cultural understanding. It is important to note that the reading,
"Preparing Presentations for an American Indian Audience", includes some
stereotypical information which the reader may wish to analyze for group
discussion or personal reflection.
The final section contains a list of frequently used phone numbers.
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Acknowledgements
"Indian Law and Policy" and "Preparing Presentations for an American
Indian Audience" are excerpts from Working Effectively With Indian Tribes
and are reprinted with the permission of Native American Technologies,
Inc. The Institute for the Development of Indian Law gave permission to
include the following sections: "What is Sovereignty" taken from Indian
Sovereignty; "An Overview of Indian Jurisdiction" and "Public Law 280"
taken from Indian Jurisdiction. "Indian Values, Attitudes, and
Behaviors, Together with Educational Considerations" is an excerpt from
The American Indian: Yesterday, Today, and Tomorrow and is reprinted with
the permission of California Department of Education.
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Table of Content*
Section X: Rational Policy
1) MEMORANDUM: Government-to<-Government Relations
with Native American Tribal Governments from President
Clinton, April 29, 1994 ............................................... 1-1
EPA Policy for the Administration of Environmental Programs on
Indian Reservations from Administrator William D.
Ruckelshaus, November 8, 1984 ....................................... 1~J
3) MEMORANDUM: Indian Policy Implementation Guidance from Deputy
Administrator Alvin L. Aim, November 8, 1984 .....
4) MEMORANDUM: EPA Indian Policy from Administrator Carol
Browner, March 14, 1994
5) MEMORANDUM: Announcement of Actions for Strengthening EPA's
Tribal Operations from Administrator Carol Browner, July 14,
1994 [[[ I'17
6) MEMORANDUM: EPA/State/Tribal Relations from Administrator
William K. Reilly, July 10, 1991 ...... . ............................. 1-23
7) Draft: Policy Guidance on EPA Civil and Administrative
Enforcement Against American Indian Tribes, March 8, 1994 ........... 1-31
8) MEMORANDUM: EPA Statutes Regarding the Role of Indian
Tribes in Managing Reservation Environments from David
Coursen, Oct 25, 1991 ............................................... 1-4"
9) Federal Register, List of Recognized Tribes, February 16,
1995 [[[ .......... 1-59
Section II: Tribal Elifiribility mad Funding
1) Overview: Categorical (Program) and Project Financial
Assistance from EPA, July, 1995 II-l
2) MEMORANDUM: Publication of Regulation Simplifying EPA's
Process for Qualifying Indian Tribes for Program Approval
from Richard E. Sanderson, December 16, 1994 Il-B
4) Federal Register; EPA 40 CFR Parts 123, 124, 131, 142, 144, 145,
233, and 501; Indian Tribes: Eligibility for Program
Authorization; Final Rule, December 14, 1994 11-15
5) Federal Register; EPA 40 CFR Parts 35 and 130;
Indian Tribes: Eligibility of Indian Tribes for Financial
Assistance; Final Rule, March 23, 1994 11-23
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Section III: Jteffioa 9
1) MEMORANDUM: A Reminder: Assuring Compliance with EPA's
Indian Policy from Deanna Wieman, Director, Office of External
Affairs, May 23, 1994 III-l
2) Regional Order 1000.2: Regional Indian Programs Steering
Committee, Felicia Marcus, Regional Administrator,
August 10, 1995 III-3
3) Draft Regional Strategy for Environmental Protection on
Region 9 Indian Lands, November 1995 III-5
4) EPA Region 9 Indian Program Steering Committee. Charter, May,
1995 III-ll
5) Regional Tribal Operations Committee Charter, July 27, 1995 111-13
6) Tribal EPA Agreements (TEA1s> 111-17
7) Draft: Sample Language for a TEA 111-19
8) Overview: Region 9 Indian Program 111-25
9) Federally Recognized Tribal Entities: Nevada, Arizona, and
California 111-29
Section IV: Loyml History
1) Overview of Indian Law Issues IV-1
2) Land Term Definitions, Bureau of Indian Affairs Navajo Area
Office, November 1, 1984 IV-3
3) Indian Law and Policy—an Historical Overview from Colonial
Times Forward IV-5
4; What is Sovereignty? IV-21
5) An Overview of Indian Jurisdiction IV-35
6) Public Law 280 IV-49
section V: CuZtuz-al/Gvacral
1) Preparing Presentations for an American Indian Audience,
Erasing Stereotypes, and a Comparison of Lifestyles V-l
2) Indian Values, Attitudes, and Behaviors, Together with
Educational Considerations V-5
3) American Indians Today: Answers to Your Questions V-17
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Section VI: Phone Numbers and Address Lists
1) Regional EPA Contacts VI-1
2) American Indian Environmental Office VI-6
3) Bureau of Indian Affairs Area and Field Offices VI-7
4) National Indian Organizations VI-9
5) Regional Indian Organizations VI-10
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THE WHITE HOUSE
WASH INGTON
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 agency
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
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(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 12B66 ("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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EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it will work directly with Tribal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued 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-governmeht" 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 intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and docs not articulate policy for other
Agencies in the conduct of their respective responsibilities.
It is important to emphasize that the implementation of regulatory
programs which will realize these princfples 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 will require changes in applicable statutory authorities and regulations.
It will be necessary to proceed in a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing in the 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 special consideration to Tribal interests in making Agency policy,
and to insure the close involvement of Tribal Governments tn 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 THf AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-GOVERNMENT" RELATIONSHIP). RATHER
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
EPA recognizes 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 as political subdivisiwis 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 RESERVATIONS. CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-Federal parties .for
making decisions and carrying out program responsibilities affecting
Indian reservations, their environments, and the health and welfare of
the reservation populace. Just as EPA's deliberations and activities have
traditionally, involved the interests and/or participation "of State Govern-
ments. EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY -AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing
programs and in preparing to assume regulatory and program management
responsibilities for reservation lands. Within the constraints of EPA's
authority and resources, this aid will include providing grants and other
assistance to Tribes siailar to that we provide State Governments. The
Agency will encourage Tribes to assume delegate responsibilities, (i.e.
responsibilities which the Agency has traditionally delegated to State
Governments for non-reservation lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility*
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency
will encourage the Tribe to participate 1n policy-making and to assume
appropriate lesser or partial roles 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 serious constraints and uncertainties In 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
this 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 EPA'S
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 treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental interests of Indian Tribes when carrying out its-
responsjbilities 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
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 and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK UITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES OK INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM 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 for
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 statutes, EPA will work
cooperatively with Tribal leadership to develop means to achieve compliance,
providing technical support and consultation as necessary to enable Tribal
facilities to comply. Because of the distinct status of Indian Tribes and the
complex legal issues involved, direct EPA action through the judicial or
administrative process will be considered where the Agency determines, in 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 1n cooperation with the-affected
Tribal Government, but will otherwise respond to noncompliance by private
parties on Indian reservations as the Agency would to noncompliance by the
private sector elsewhere in the country. Where 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 AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET. OPERATING GUIDANCE. LEGISLA-
TIVE INITIATIVES. MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles
of this Policy are effectively institutionaliied by incorporating them into
the Agency's ongoing and long-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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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
HOY S 04
•met or
MEMORANDUM T"c
SUBJECT: Indian Policy Implementation Guidance
FROM: Alvln L. Aim 6-^^-C, ^__
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This
document sets forth the broad principles that will guide the Agency 1n
Its relations with American Indian Tribal Governments and 1n the adminis-
tration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized
Tribal Governments and the environment of a geographical area that 1s
larger than the combined area of the States of Maryland. New Jersey.
Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It 1s an
Important sector of the country, and constitutes the remaining lands of
America's first stewards of the environment, the American Indian Tribes.
The Policy places a strong emphasis on Incorporating Tribal Govern-
ments Into the operation and management of EPA's delegable programs.
This concept 1s based on the President's Federal Indian Policy published
on January 24, 1983 and the analysis, recommendations and Agency Input
to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1983).
TIMING AND SCOPE
Because of the Importance of the reservation environments, we must
begin Immediately to Incorporate the principles of EPA's Indian Policy
Into the conduct of our everyday business. Our established operating
procedures (Including long-range budgetary and operational planning acti-
vities) have not consistently focused on the proper role of Tribal Govern-
ments or the special legal and political problems of program management
on Indian lands. As a result, 1t will require a phased and sustained
effort over time to fully Implement the principles of the Policy and «o
take the steps outlined 1n this Guidance. -
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Some Regions and Program Offices have already made Individual starts
along the lines of the Policy and fiuidance. I believe that a clear
Agency-wide policy will enable all programs to build on these efforts so
that, within the limits of our legal and budgetary constraints, the Agency
ts a whole can make respectable progress In the next year.
As we begin the first year of operations under the Indian Policy, we
cannot expect to solve all of the problems we will face In administering
programs under the unique legal and political circumstances presented by
Indian reservations. Ue can, however, concentrate on specific priority
problems and Issues and proceed to address these systematically and care-
fully in the first year. With this general emphasis, I believe that we
can make respectable progress and establish good precedents for working
effectively with Tribes. By working within a manageable scope and pace,
we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this Guidance in
the conduct of our everyday business, the first year's Implementation effort
will emphasize concentrated work on a discrete number of representative
problems through cooperative programs or pilot projects. In the Regions.
this effort should include the Identification and Initiation of work on
priority Tribal projects. At Headquarters, 1t should Involve the resolution
of the legal, policy and procedural problems which hamper our ability to
Implement the kinds of projects identified by the Regions.
The Indian Work Group (IWG), which 1s chaired by the Director of the
Office of Federal Activities and composed of representatives of key regional
and headquarters offices, will facilitate and coordinate these efforts.
The IWG will begin immediately to help identify the specific projects
wnicn may be ripe for implementation and the problems needing resolution
in the first year.
Because we are starting in "mid-stream." the implementation effort
will necessarily require some contribution of personnel time and funds.
-•lie no one program will be affected 1n a major fashion, almost all Agency
; Tgrams are affected to some degree. I do not expect the Investment in
projects on Indian Lands to cause any serious restriction in the States'
funding support or in their ability to function effectively. To preserve
the flexibility of each Region and each program, we have not set a target
for allocation of FT 85 funds. I am confident, however, that Regions and
program offices can, through readjustment of existing resources, demonstrate
significant and credible progress In the implementation of EPA's Policy In
the next year.
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Subject to these constraints. Regions and program Managers should now
Initiate actions to implement the principles of the Indian Policy. The
eight categories set forth below will direct our initial Implementation
activities. Further guidance will be provided by the Assistant Adminis-
trator for External Affairs as experience Indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS
LEAD A6ENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY NATTERS.
This responsibility will Include coordinating the development of
appropriate Agency guidelines pertaining to Indian Issues, the
implementation of the Indian Policy and this Guidance. In this effort
the Assistant Administrator for External Affairs will rely upon the
assistance and support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) HILL ASSIST AND SUPPORT THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND RECOMMENDING DETAILED
GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT
ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD
DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE IWG'S
RESPONSIBILITIES UNDER THE DIRECTION OF- THE ASSISTANT ADMINISTRATOR FOR
EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of
Federal Activities, will be an important entity for consolidating the
experience and advice of the key Assistant and Regional Administrators on
Indian Policy natters. It will perform the following functions: identify
specific legal, policy, and procedural impediments to working directly
toien Tribes on reservation problems; help develop appropriate guidance
for overcoming such Impediments; recommend opportunities for implementation
of appropriate programs or pilot projects; and perform other services in
support of Agency managers in implementing the Indian Policy.
The initial task of the IWG will be to develop recommendations and
suggest priorities for specific opportunities for program Implementation
in the first year of operations'under the Indian Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant
Administrator must be actively represented on the IWG by a staff member
authorized to speak for his or her office. Further, the designated
representative^) should be afforded the time and resources, including
travel, needed to provide significant staff support to the work of the
IWG.
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3. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND
LIAISON WITH TRIBES, PROVIDING ADEQUATE INFORMATION TO ALLOW THEM TO WORK
WITH US IN AN INFORMED KAY.
In the first thirteen years of the Agency's existence, we have worked
hard to establish working relationships with State Governments, providing
background Information and sufficient Interpretation and explanations to
enable them to work effectively with us in the development of cooperative
State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (preferably on the
reservation) with Tribal Government officials. This liaison Is essential to
understanding Tribal needs, perspectives and priorities. It will also foster
Tribal understanding of EPA's programs and procedures needed to deal effec-
tively with us.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET
TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY COMPETING PRIORITIES AND BY
OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA
or State Governments, -an appropriate block of funds must be set aside to
support reservation abatement, control and compliance activities.
Because we want to begin to Implement the Indian Policy now. we cannot
wait until FY 87 to formally budget for programs on Indian lands. Accordingly,
for many programs, funds for Initial Indian projects in FY 85 and FY 86
will need to come from resources currently planned for support to EPA-and
State-managed programs meeting similar objectives. As I stated earlier, we
do not expect to resolve all problems and address all environmental needs on
reservations Immediately. However, we can make a significant beginning
witnout unduly restricting our ability to fund ongoing programs.
I am asking eacn Assistant Administrator and Regional Administrator to
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As the Agency begins to deal with Tribal Governments as partners 1n
reservation environmental programing, we will find a stallar need for EPA
assistance. Many Regional and program personnel have extensive experience
1n working with States on program design and development; their expertise
should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL
COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED INPUT
INTO EPA'S DECISION-MAKING AND PROGRAM MANAGEMENT ACTIVITIES WHICH AFFECT
RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions relating
directly or Indirectly to reservation environments, full consideration and
weight should be given to the public policies, priorities and concerns of the
affected Indian Tribes as expressed through their Tribal Governments.* Agency
managers should make a special effort to Inform Tribes of EPA decisions and
activities which can affect their reservations and solicit their Input as we
have done with State Governments, where necessary, this should Include provid-
ing the necessary Information, explanation and/or briefings needed to foster
the Informed participation of Tribal Governments In the Agency's standard-
setting and policy-making activities.
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7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE MAXIMUM FEASIBLE
EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND PREFERENCES INTO EPA'S POLICY
DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration
to local Interests and concerns, within the limits allowed by our statutory
mandate and nationally established criteria and standards. Consistent with
tne Federal and Agency policy to recognize Tribal Governments as the primary
voice for expressing public policy on reservations, EPA managers should, within
the limits of their flexibility, seek, and utilize Tribal Input and preferences
in those situations where we have traditionally utilized'State or local Input.
We recognize that conflicts 1n policy, priority or preference may arise
between States and Tribes as It does between neighboring States. As in the
case of conflicts between neighboring States, EPA will encourage early communi-
cation and cooperation between Tribal and State Governments to avoid and resolve
such issues. This Is not Intended to lend Federal support to any one party in
its dealings with the other. Rather, It recognizes that 1n the field of environ-
mental regulation, problems are often shared and the principle of comity between
equals often serves the Interests of both.
Several of the environmental statutes include a conflict resolution mechan-
ism which enables EPA to use Its good offices to balance and resolve the con-
flict. These procedures can be applied to conflicts between Tribal and State
Governments that cannot otherwise be resolved. EPA can play a moderating role
by following the conflict resolution principles set by the statute, the Federal
trust responsibility and the EPA Indian Policy.
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8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNMENTS TO ACHIEVE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT
UITH THE PRINCIPLE OF INDIAN SELF-GOVERNMENT.
•
The EPA Indian Policy recognizes Tribal Governments as the key
governments having responsibility for utters affecting the health ana
welfare of the Tribe. Accordingly, where trlbally owned or Managed
facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to
achieve compliance. Where reservation facilities are clearly owned or
managed by private parties and there 1s no substantial Tribal Interest
or control Involved, the Agency will endeavor to act 1n cooperation with the
affected Tribal Government, but will otherwise respond to noncompllance by
private parties on Indian reservations-as we do to noncompllance by the
private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with
Federal statutes and regulations Include providing consultation and
technical support to Tribal leaders and Managers concerning the Impacts
of noncompllance on Tribal health and the reservation environment
and steps needed to achieve such compliance. As appropriate, EPA may
also develop compliance agreements with Tribal Governments and work
cooperatively with other Federal agencies to assist Tribes In meeting
Federal standards.
Because of the unique legal and political status of Indian Tribes
1n the Federal System, direct EPA actions against Tribal facilities
through the judicial or administrative process will be considered where
tne 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 ether alternatives to correct the problem 1n a
timely fashion. Regional Administrators proposing to Initiate such action
should first obtain concurrence from the Assistant Administrator for Enforce-
ment and Compliance Monitoring, who will act 1n consultation with the Assis-
tant Administrator for External Affairs and the General Counsel. In emergency
situations, the Regional Administrator may Issue emergency Temporary Restrain-
ing Orders, provided that the appropriate procedures set forth In Agency
delegations for such actions are followed.
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-7-
9. ASSISTANT ADMINISTRATORS. REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE PLANNING AND
PROGRAM MANAGEMENT ACTIVITIES, INCLUDING BUDGET. OPERATING GUIDANCE. MANAGEMENT
ACCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the principles of the EPA Indian Policy and work
effectively with Tribal Governments on a long-range basis. It will be necessary
to Institutionalize the Agency's policy goals In the Management systems that
regulate Agency behavior. Where we have systematically Incorporated State needs,
concerns and cooperative roles Into our budget. Operating Guidance, management
accountability systems and performance standards, we must now begin to factor the
Agency's Indian Policy goals Into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes
when conducting routine planning and management activities or carrying out
special policy analysis activities. In addition, the IWG, operating under the
direction of the Assistant Administrator for External Affairs and with
assistance from the Assistant Administrator for Policy. Planning and Evaluation,
will Identify and recommend specific steps to be taken to ensure that Indian
Policy goals are effectively Incorporated and Institutionalized 1n the Agency's
procedures and operations.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 1 4 19%
MEMORANDUM
SUBJECT: EPA Indian Policy THE ADMINISTRATOR
TO: All Employees
In 1984, EPA became the first Federal agency to adopt a formal Indian Policy (copy
attached). EPA is proud of that Policy, which has provided the framework for our
developing partnership with Tribes. Since 1984 Agency programs have changed and several
of our statutes have been amended to address Tribal needs. Nevertheless, the core principle
of the Policy, a commitment to working with Federally recognized tribes on a government-
to-government basis to enhance environmental protection, has been reaffirmed by President
Clinton and remains the cornerstone of EPA's Indian program. Accordingly, therefore, I
formally reaffirm the EPA Indian Policy.
The challenge for EPA today is to implement its 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 7, Martha Prothro, formerly Deputy Assistant Administrator for Water,
joined my staff to assist in developing our Tribal Programs. I have asked Martha and Bill
Yellowtail, Regional Administrator, EPA Region VTH, 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 for implementing the goals of the Policy. The team will work with Tribal
representatives, including the Tribal Operations Committee and others, in drafting new
implementation guidance. This guidance will provide a blueprint for transforming the
Policy's vision into a reality for federally recognized Indian Tribes, including Alaskan
Tribes.
This is an exciting opportunity for us to develop a stronger partnership with Tribal
governments in protecting the environment. I ask all of you to help make this effort a great
success.
Carol M. Browner
Attachment
PrinMtfon paper th«tcort»ns
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RA FOR REGION 9
UNITED STATES ENVIRON
WASHING! UN, U.U. 20460
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MEMORANDUM
SUBJECT: Announcement of Actions for Strengthening EPA's
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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 our 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
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1-18
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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 TOC, on ways to strengthen EPA's Tribal environmental programs and
daily operations, pursuant to the implementation of the 1984 Indian Policy. This team of EPA
managers has worked on a variety of issues over the last five months.
On May 26,1994, at the Second National Tribal Conference on 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 h to begin operations.
Although this Office will have the lead for coordinating certain activities, most of the
responsibility for developing and implementing Tribal environmental protection programs will
remain with the Regions and Headquarters Program Offices. Therefore, we need not wait until
the establishment of the Office to promptly begin the implementation of the following actions.
The following action items are intended to strengthen EPA's Indian program by
supplementing current activities. 'Although a Federal Register notice will invite public review and
comment on the functions of the new Office of Indian Affairs (some of which are similar to the
actions described below), EPA need not delay hs 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
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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I) 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 wiD 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 dose consultation with the Tribal plans, so as to ensure the completion of
Regional and National Program plans prior to the FY1997 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,
. tural resources and environments. Although EPA retains final authority over and
res; onsibility for its actions, the EPA Indian Policy recognizes Tribal governments as the
most appropriate authority for managing Tribal environments and the Agency should
accord great deference to Tribal priorities and environmental goals when carrying out
these activities.
4) Program and Regional Organization: To strengthen the Indian program within the
Regions and Headquarters Program Offices and to ensure greater consistency in the work
performed by those offices, each Assistant and Regional Administrator should begin to
review and, where necessary, modify the organization and/or management of the Indian
program within his/her office. Each Region and Program Office has different
responsibilities and/or workloads for Tribal operations and, therefore, some may require
more resources than others. However, at a minimum, each Assistant and Regional
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Administrator with responsibilities for Tribal activities should consider assigning a
professional, full-time, to serve as Indian Coordinator, and report back to the new Office
on status of this position. The Indian Coordinators must have the necessary procedures
and support to assure full and effective communication with program staff throughout the
organization. In addition, each Assistant and Regional Administrator should begin to
address any need for additional staff to cany 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
thf» intprim Accictant anri Rpoirtnal AHrmnictratnrc arA Anr>rnir9am4 to nrnui>4«t i-raintnn tVia
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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 12875,
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
1-21
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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 development.1
9) Resource Investment in Tribal Operations: Some encouraging first steps have already
been taken to increase resources for Tribal operations in the FY 1996 budget. High
priority was established for increasing support for Tribal operations at the Annual Planning
meeting in April. However, to begin immediately strengthening the Indian program and to
implement the new activities outlined in this memorandum, resources must be invested in
FY 1994 and FY 1995 for. 1) staff assistance in the development of Tribal environmental
workplans (FTE and travel); 2) Tribal capacity building, environmental program
development, authorization and management (primarily grant funding); 3) EPA
implementation and management activities (FTE, travel and AC&C support); and 4)
technical assistance and related support, as needed by the Tribes (FTE, travel and AC&C
support). These additional investments, will require a shift in Headquarters Program and
Regional priorities to place greater emphasis on Tribal operations. Recognizing that we
cannot immediately resolve all problems or address all Tribal environmental needs, each
Assistant and Regional Administrator should allocate resources within their discretion and
authority to constitute a significant commitment to strengthening Tribal environmental
protection.
1 While recognizing that the primary objective of the General Assistance Program (GAP)
is to develop Tribal environmental capacity, the new Office of Indian Affairs will be asked to
consider using, to the extent allowed by law, any flexibility in the current GAP for program
implementation, where funding such implementation would be impractical on a program by
program basis. In consultation with Assistant and Regional Administrators, the Office will
consider whether EPA should support statutory changes in granting authorities to create more
opportunities for Tribal block grants and to explicitly allow for the use of GAP, where practical,
for program implementation. However, even if the use of GAP is expanded, program-specific
funding and responsibility for technical assistance, implementation, management or other related
activities would still need to continue and also expand.
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UNITED STATES BiVIROHMEHTAL PROTECTION AGBer that was coordinated by Region
Vizi on EPA/State/Tribal Relations.
This paper was prepared to formalize the Agency's role in
strengthening tribal governments' management of environmental
progress on reservations. The paper notes that the differences
between the interests of tribal and state governments can be very
sensitive and sometimes extend veil 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, making every effort to
support cooperation and coordination between tribal and state
governments, while -maintaining our commitaent to environmental
quality.
I encourage you to promote tribal management of
environmental programs and work toward that goal.
Please distribute this document to states and tribes in your
region.
Willian K.
Attachment
cc. Eeadipjarters Program Offic«
Regional Office Directors
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FEDERAL, TRIBAL AMD 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 1984 EPA Indian Policy and its implicit promise to
protect the environment of Indian reservations as effectively as
the Agency protects the environment of the rest of the country.
The EPA Indian Policy is premised on tribal self-determination,
the principle that has been set forth as federal policy by •
Presidents Nixon, Reagan, and Bush. Self-determination is the
principle recognizing the primary role of tribal governments in
determining the future course of reservation affairs. Applied to
the environmental arena in the EPA Indian Policy, this principle
looks to tribal governments to manage programs to protect human
health and the environment on Indian reservations.
II. TRIBAL, STATE AND FEDERAL EXPECTATIONS
The Agency is sensitive to the fact that tribal and state
governments have serious and legitimate interests in the
effective control and regulation of pollution sources on Indian
reservations. EPA shares these concerns and, moreover, has a
responsibility to Congress under the environmental statutes to
assure that effective and enforceable environmental programs are
developed to protect human health and the environment throughout
the nation, including Indian reservations.
Indian tribes, for 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 to
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
Ao«»ncy supports the principle of Indian self-government:
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"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 weltare of the
reservation populace. Just as EFA'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 ACTION
EPA program managers will be guided by the following
principles and procedures regarding tribal and state roles in the
management of programs to protect reservation environments.
i. 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 will view
Indian reservations as single administrative units for regulatory
purposes. Hence, as a general rule, the Agency will authorize a
tribal or state government to manage reservation programs only
where that government can demonstrate adequate jurisdiction over
pollution sources throughout the reservation. Where, however, a
tribe cannot demonstrate jurisdiction over one or more
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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
vill carry out its duties in accordance with the principles set
forth in the EPA Indian Policy.
3. Under both authorized and EPA-administered programs for
reservations, the Agency .encourages cooperation between tribes
and states, acting in the spirit of neighbors with a mutual self-
interest in protecting the environmental and the health and
welfare of the reservation populace. Such cooperation can take
many forms, including notification, consultation, sharing of
technical information, expertise and personnel, and joint
tribal/state programming. While EPA will in all cases be guided
by federal Indian law, EPA Indian Policy and its broad
responsibility to assure effective protection of human health and
the environment, the Agency believes that this framework allows
flexibility-for a wide variety of cooperative agreements and
activities, provided that such arrangements are freely negotiated
and mutually agreeable to both tribe and state. The Agency will
not act in such a manner as to force such agreements.
4. The Agency urges states to assist tribes in developing
environmental expertise and program capability. The Agency has
assisted in funding state environmental programs for two
decades, with the result that, today, state governments have a
very capable and sophisticated institutional infrastructure to
set and enforce environmental standards consistent with 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 serve as a model of mutually beneficial cooperation for other
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 process. 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
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significantly to public acceptance and therefore the
effectiveness of regulatory programs. The Agency encourages all
tribes to follow the example of those tribes that have already
enacted an APA.
6. Where tribal and State governments, managing regulatory
programs for reservation and state areas, respectively, may
encounter transboundary problems arising from inconsistent
standards, policies, or enforcement activities, EPA encourages
the tribal and state governments to resolve their differences
through negotiation at the local level. EPA, in such cases, is
prepared to act as a moderator for such discussions, if
requested. Where a statute such as the Clean Water Act
designates a conflict-resolution role for EPA in helping to
resolve tribal/state differences, EPA will act in accordance with
the statute. Otherwise, EPA will respond generally to such
differences in the same manner that EPA responds to differences
between states.
V. CONCLUSION
The Agency believes that where an ecosystem crosses
political boundaries, effective regulation calls for coordination
and cooperation among all governments having a regulatory role
impacting the ecosystem. Many differences among tribes and
states, like differences among states, are a natural outgrowth of
decentralized regulatory programs; these differences are best
resolved locally by tribes and states acting out of mutual
concern for the environment and the health of the affected
populace. EPA actions and decisions made in carrying out its
role and responsibilities 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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1-30
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™YP*. This is a draft policy and does not represent official
^Srv Dolicv Ongoing review and discussions may lead to a final
JSlicy in tnTnea? future. Please, do not cite as agency policy.
JRAFT COPY AS OF 03/08/94
POLICY GUIDANCE ON EPA CIVIL AND ADMINISTRATIVE ENFORCEMENT
AGAINST AMERICAN INDIAN TRIBES
The following is the Office of Enforcement's (OE) guidance on
civil and administrative enforcement actions taken by or on
behalf of the Environmental Protection Agency (EPA) against
American Indian tribal governments and facilities. This guidance
clarifies and expands upon the procedures outlined in the
November 8, 1984 "EPA Policy for the Administration of
Environmental Programs on Indian Reservations" (Indian Policy)
and its accompanying Implementation Guidance.
I. Conditions Necessary for Enforcement Action
The Indian Policy limits the instances when the Agency will take
enforcement action against a tribe, providing:
In those cases where facilities owned or managed by Tribal
Governments are not in compliance with Federal environmental
statutes1, EPA will work cooperatively with Tribal
leadership to develop means to achieve compliance, providing
technical support and consultation as necessary to enable
Tribal facilities to comply. Because of the distinct status
of Indian Tribes and the complex legal issues involved,
direct EPA action through the judicial or administrative
process will be considered where the Agency determines, in
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.
A. "... owned or managed by Tribal Governments ... "
As set forth above, the Indian Policy requires EPA to ensure that
certain conditions have been met before taking enforcement action
against facilities owned or managed by "Tribal Governments."
Such facilities include those that are wholly owned or directly
managed by a tribal government whether or not the facilities are
1 This guidance deals solely with violations of EPA's civil
regulatory programs. It does not apply to criminal conduct,
criminal investigations or enforcement under criminal provisions
of laws or regulations which protect lives, health or environment
and are enforced by this Agency.
DRAFT COPY AS OF 03/08/93
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DRAFT COPY AS OF 03/08/94 2
located in Indian country2. In cases of facilities that are
wholly owned and directly managed by parties other than a tribal
government (including individual members of the tribe) and
located in Indian country, EPA will respond to noncompliance in
the same way that it does to noncompliance at facilities located
outside Indian country but will coordinate with the tribal
government in the same way that it otherwise would with the
affected state government.
In determining whether a facility partially owned by a tribal
government should be treated as if wholly owned by a tribal
government, EPA will consider the extent of the tribal
government's ownership of the facility. Generally, a facility in
which a tribal government has a controlling ownership interest
will be treated as if owned by that government, whereas a
facility with only minor tribal ownership will not. Similarly,
EPA will examine the degree of a tribe's involvement in the daily
operations of a facility in determining whether the facility is
managed by the tribal government. When there is no substantial
tribal ownership interest in or management of a facility located.
in Indian country, the Agency shall respond to noncompliance at
the facility in the manner described above for facilities wholly'
owned and managed by parties other than a tribal government.
B. "... EPA will work cooperatively with Tribal leadership to
develop means to achieve compliance, providing technical support
and consultation as necessary ... "
EPA will contact the tribal leadership and the manager of a
noncompliant facility and attempt to cooperatively develop a
means to achieve compliance before taking any enforcement action.
This condition applies to the issuance of notices of violation,
administrative and judicial complaints, proposed and final orders
and all other documents that implicate injunctive relief or the
assessment of penalties. It does not apply to the issuance of
information requests. The initial contact with the tribe should
2 This guidance incorporates the definition of "Indian
country" found at 18 U.S.C. § 1151: 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 c) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running
through the same.
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include an offer by EPA to provide consultation and technical
support appropriate under the circumstances and consistent with
the availability of resources. This support could include
training of tribal personnel, visits by EPA personnel to the
facility or other measures. For the sake of preserving an
adequate record, such communication should be by certified letter
or, when oral, memorialized in writing. At times it will be more
effective for EPA to deal primarily with the manager of the
facility. In this circumstance, the tribal leadership should
still be informed of the alleged violation by EPA in writing,
even if only by copy of correspondence with the facility manager.
If this initial contact does not result in timely compliance, EPA
should consider further cooperative means of assisting the
facility to resolve the violations. Such efforts could include
follow-up letters, direct correspondence with the tribal
leadership, grants assistance or an informal compliance agreement
that does not provide for penalties nor constitute a consent
order.
If EPA determines that cooperative means are not likely to
achieve timely compliance, or if such means have been
unsuccessful, the Agency should proceed with whatever enforcement
action it would take at a non-tribal facility under similar
circumstances, such as the issuance of a notice of violation
followed, if necessary, by a proposed order or administrative
complaint. Factors to consider in making this determination
include the potential for harm to human health, the environment
or the regulatory program, any relevant history of noncompliance
with EPA programs, and the degree of willfulness pertaining to
the violation.
C. "... a significant threat to human health or the
environment exists ... "
EPA should take enforcement action against a tribal government
only if it determines that a significant threat to human health
or the environment exists because of the noncompliance. The
existence of such a threat should- be referred to in the
appropriate enforcement documents. Threats to human health and
the environment include not only such direct threats as a release
of contaminants into the environment and exposure of humans to
pollutants but also indirect threats such as failure to operate
with a permit, failure to monitor and failure to maintain proper
operational records. The "significant threat" standard is not
intended to, and should not, result in a lesser degree of
environmental protection in Indian country. It is a means of
confirming EPA's government-to-government relationship with
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tribes by assuring that minor or solely punitive actions will be
avoided whenever possible.
D. "... such action would reasonably be expected to achieve
effective results in a timely manner ..."
As a general matter, enforcement proceedings seeking injunctive
relief are reasonably expected to achieve effective results in a
timely manner when the relief requested is specific and
appropriate to the violations and includes a time frame for
attaining compliance. EPA should seek penalties from a tribal
government or include stipulated penalties in consent orders and
decrees only when they are necessary to secure effective, timely
results. The Agency should generally avoid actions which seek
penalties without injunctive relief.
E. "... the Federal government cannot utilize other
alternatives to correct the problem in a timely fashion ... "
EPA should consider -all reasonable ways to assist a tribal
facility to come into compliance before considering enforcement
action. The extent to which EPA should include other federal
agencies in its efforts to cooperatively resolve violations with
a tribal government will vary from case to case. EPA should
involve federal agencies generally charged with American Indian
affairs (e.g., the Bureau of Indian Affairs or the Indian Health
Service) or other federal agencies with an interest in the
particular matter (e.g., the Army Corps of Engineers regarding
dredge and fill permits) whenever such involvement is reasonably
expected to facilitate tribal compliance in an acceptable zime
frame. EPA should also consider utilizingjion-federal agencies
or private entities as appropriate to the circumstances; for =?
example, a state agency or private company with an interest in
the tribal facility may be able to provide technical assistance
or other resources to the tribe. To maximize the effectiveness
of involving other agencies and entities, EPA should generally
involve them in compliance efforts as early as is reasonable
under the circumstances. EPA should provide the Bureau of Indian
Affairs with copies of notices of violation and other enforcement
documents unless this practice would impede the particular
enforcement action.
II. Coordination within the Agency
The Indian Policy Implementation Guidance provides that
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Regional Administrators proposing to initiate such
(enforcement) action should first obtain concurrence from
the Assistant Administrator for Enforcement and Compliance
Monitoring, who will act in consultation with the Assistant
Administrator for External Affairs and the General Counsel.
In light of the reorganization of EPA Headquarters offices since
the issuance of the Implementation Guidance, the Acting Deputy
Assistant Administrator for Federal Facilities Enforcement by
memorandum of October 21, 1992 directed all EPA enforcement
actions against tribal facilities, except in emergency
situations, to be submitted to the Assistant Administrator for
Enforcement, who will act in consultation with the Office of
Federal Activities, including its Senior Legal Advisor, and the
General Counsel.
Provided that the conditions necessary for enforcement action
described above have been met, a Region need not obtain
concurrence from the Assistant Administrator for Enforcement for
the issuance of a notice of violation or a consent order to a
tribal facility, unless the case otherwise involves issues of
national significance. Issues of national significance include '
actions which could be construed as setting precedent for other
Regions or the Agency as a whole, first-impression
interpretations of laws, and actions which are inconsistent with
the practice of other Regions or national policy. In the event
of uncertainty regarding the national significance of issues
presented by the case, the Region should consult with the Office
of Enforcement. To ensure that those conditions have been met
and that no issue of national significance is implicated, the
Regional program office must obtain the concurrence of the
Regional Indian Program Coordinator and the Office of Regional
Counsel before issuing a notice of violation, consent order or
any other document that implicates injunctive relief or the
assessment of penalties. The Region must obtain the concurrence
of the Assistant Administrator for Enforcement before taking any
enforcement action of greater magnitude than a notice of
violation, such as issuing an administrative complaint or
proposed order, against a tribal facility. Informal consultation
with the Office of Federal Activities' Senior Legal Advisor by
the Offices of Regional Counsel and the National Indian Program
Coordinator is encouraged for all enforcement matters related to
American Indian tribes.
Whenever the concurrence of the Assistant Administrator for
Enforcement is necessary for an enforcement action against a
tribal facility, the Office of Regional Counsel should submit to
the Assistant Administrator the following information: 1)
identification of the facility, person or other entity against
whom the action is proposed; 2) the nature of the alleged
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violation (i.e., statutory/regulatory requirement violated;
place, time and date of violation; names of actors; action giving
rise to violation); 3) the type of action proposed (e.g.,
compliance order, criminal prosecution); 4) a description of how
the case meets the conditions necessary for enforcement action
set forth above, including a description of all relevant
communications with tribe; and 5) copies of the proposed
enforcement document and relevant supporting documents. The
Region should allow two weeks for review by the Office of
Enforcement, unless an expedited review is requested and granted.
In emergency situations, the Regional Administrators may issue
emergency temporary restraining orders against a tribal
government without obtaining the advance concurrence of the
Assistant Administrator for Enforcement, provided that the
appropriate procedures set forth in Agency delegations for such
action are followed.
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RESPONSE TO COMMENTS RECEIVED TO 8/25/93 DRAFT OF POLICY
GUIDANCE ON EPA ENFORCEMENT ON AMERICAN INDIAN LANDS
Comments were received from: Regions 4, 6, 8, 9 and 10; the
National Indian Program Coordinator; the Office of Water; the
Organizational Management and Integrity Staff, Office of Solid
Waste and Emergency Response; and the Criminal Enforcement
Counsel Division.
Note: Many comments were similar; your comment may have been
consolidated into someone else's.
lit Document should use "Indian country" instead of
"American Indian lands." A new term would be confusing and
without the benefit of precedent. "Indian country" emphasizes
the land's connection with Federal jurisdiction and
administration, which is usually the basis for tribal
jurisdiction.
Response: Agreed. The subcommittee originally decided against
using "Indian country," as that term is. on its face, broader
than terms used in some of our statutes
Comment #1; Change "verbal" to "oral" on p. 2.
Response: Agreed.
Comment #3; Guidance should extend (as it currently does) beyond
Indian country to activities of a tribal government that may not
be on Indian lands.
Response: Agreed. This recognizes the sovereignty of tribes and
EPA's commitment to dealing with them on a government-to-
government basis. In most cases, tribal facilities outside
Indian country will be under state jurisdiction and actions
against such facilities will be taken by a state. This policy
guidance does not affect the assertion or validity of state
jurisdiction over such facilities or imply U.S. EPA enforcement
primacy over states for such facilities. Extending this guidance
to facilities outside Indian country means only that when and if
U.S. EPA takes an enforcement action against such a facility, the
Agency will comply with this policy guidance. The guidance
provides sufficient flexibility regarding facilities partially
owned by non-tribal entities to allow EPA to follow normal
enforcenent procedures in actions against companies that are
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trying to shield themselves from enforcement by becoming business
partners with tribes.
14: Regions should not need OE concurrence on
enforcement actions greater than an NOV.
Response: Given the political sensitivity of such an action and
the existence of some sort of EPA trust responsibility toward
tribes, any actual enforcement action is by nature a matter of
national significance. Since actual enforcement actions will be
rare and OE has committed to review enforcement requests in a
timely manner, obtaining concurrence of OE should not be
burdensome on the Regions.
Comment #5; The terms "in a timely manner" and "timely
compliance" are vague.
Response: The timeliness of an action will depend upon the
individual Regulatory program, type of action, etc. Rather than
expound an exhaustive and potentially exclusive-through-
incompleteness list of time frames, we allow the Region to
determine on a case-by-case when an action is timely. Use of
these terms is common in other EPA guidance.
Comment #6: You should insert an example of EPA utilizing non-
federal agencies or private entities to facilitate tribal
compliance on p. 4.
Response: Agreed.
Comment #1 : Would Regions have to copy BIA on simple notices,
which do not refer to possible enforcement actions or assessment
of penalties?
Response: The guidance does not require copies of non-
enforcement notices to be sent to BIA.
Comment #8; Item 4 of the information necessary to send to OE to
obtain concurrence on an enforcement action (p. 5) should appear
earlier in the guidance document.
Response: We believe that all 5 items of information necessary
to forward to OE should be kept together and that they best
appear in their current location.
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comment #9: The guidance seems to imply that EPA will not take
enforcement action Against non-Indian facilities in Indian
country.
Response: Page 2 of the guidance provides "When there is no
substantial tribal interest in or management of a facility
located in Indian country, the Agency shall respond to
noncompliance at the facility in the manner described above for
facilities wholly owned and managed by parties other than a
tribal government."
Comment #10; We should provide enforcement training to tribal
governments and the reservation population.
Response: Providing training to tribes is outside the purview of
this task force. Such a request should be directed to the
Regional or national program offices.
Comment #11; The statement on p. 5 that Regions must obtain OE
concurrence "before taking any enforcement action of greater
magnitude than a notice of violation" appears to conflict with
the statement on p. 4 that Regions do not need OE concurrence for
"issuance of a notice of violation or consent order."
Response: Neither statement requires OE approval for issuance of
an NOV. The work group does not believe that consent orders,
which resolve noncompliance cooperatively, are enforcemnt actions
of greater magnitude than an NOV. Please note that an
administrative complaint does need OE concurrence and that in
some programs administrative complaints must be filed before or
along with consent orders.
Comment #12; Regional program offices should not have to obtain
the concurrence of the Regional Indian Program Coordinators or
Regional Counsels before issuing NOVs.
Response: Due to the extreme political sensitivity of taking
enforcement actions against tribes and the existence of an EPA
trust responsibility to tribes, even NOVs warrant concurrence by
the RIPCs and RCs. Some Regions have developed procedures
whereby a program office may issue a generic, RC/RIPC-approved
"pre-NOV" notice of potential noncompliance to a tribe without
advance concurrence, provided that the RIPC and RC are sent
copies of the notice. If the pre-NOV does not result in
compliance, RC/RIPC concurrence is sought before issuing an
actual NOV. Such procedures are acceptable under the new
guidance.
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flag Allowing an extended period of time to assist a
non-compliant tribaj facility in returning to compliance may mean
that Indians do not receive the same degree of public health
protection as non-Indians. OE will have to revise its Timely and
Appropriate guidance to accommodate this new principle.
Response: The guidance allows enough flexibility to assure that
neither the public health nor the environment is jeopardized by
efforts to assist a tribal facility in coming into compliance.
The guidance provides that cooperative approcahs to achieving
compliance must correct compliance problems in a timely fashion
and that, in emergency situations, Regional Administrators may
issue temporary restraining orders against tribal governments
without advance concurrence by OE. Thus, this guidance does not
generally contradict the principle of timely and appropriate
enforcement found in other Agency guidance. Specific
contradictions between this and other guidance will be resolved
as they arise.
Comment #14: Allowing EPA to take enforcement action against a
tribe only when a significant threat to human health or the
environment exists is too restrictive.
Response: As explained in the guidance, the significant threat
standard is a means of confirming EPA's government-to-government
relationship with tribes by assuring that minor or solely
punitive actions will be avoided whenever possible. It is not
intended to, and should not, result in a lesser degree of
environmental protection in Indian country. As a general matter,
EPA seldom takes enforcement action against any entity unless a
significant threat to human health or the environment exists.
Comment #15; How will tribal corporations formed under Section
17 of the Indian Reorganization Act (25 U.S.C. § 477) be dealt
with?
Response: Section 17 of the Indian Reorganization Act allows the
Secretary of -the Interior to approve the incorporation of certain
tribes. For the most part, these corporations are tribal
governmental entities and will be dealt with as any other tribal
governmental agency. That is, it is the extent of the tribal
government's involvement at a facility which determines the
applicability of the guidance; such involvement may be manifest
by a tribal council, corporation, agency or other entity.
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DRAFT COPY AS OF 03/08/94 5
#16; EPA should not provide the Bureau of Indian Affairs
with copies of notices of violation or other enforcement
documents, as EPA could not assure their confidentiality.
Response: Enforcement documents such as NOVs, administrative
complaints and orders are public information. Also, since the
Department of Interior holds most tribal lands in trust, it is an
interested party in any enforcement proceeding. Providing BIA
with copies of these documents will in no way jeopardize any
civil enforcement action. This guidance does not apply to
criminal actions.
Comment #17; The guidance requires the Regional program offices
to obtain the concurrence of the Regional Indian Program
Coordinator and the Office of Regional Counsel before issuing a
notice of violation, consent order or any other document that
implicates injunctive relief or the assessment of penalties.
Must the program offices also obtain RIPC/ORC concurrence taking
any enforcement action of greater magnitude than a notice of
violation?
Response: Yes. enforcement actions of greater magnitude than
NOVs are "other documents that implicate injunctive relief or the
assessment of penalties."
Comment #18; Would Underground Storage Tank Program field
citations be eligible to be used at a tribally owned facility?
Response: No. These citations are essentially administrative
complaints and require OE concurrence. Regional UST programs may
want to develop a generic field "notice of potential non-
compliance" approved by ORC and the Regional Indian Program
Coordinator for tribal facilities.
Comment #19; This policy is in direct disagreement with
President Clinton's directive to reduce by 50% the number of
internal regulations under which we operate.
Response: At this time, most Agencies construe President
Clinton's directive to apply only to operational and
administrative regulations. Should it be made clear that program
and enforcement guidance must also be cut, we shall consider not
finalizing this guidance.
i*9n? Each of the Regions should be trusted to take the
enforcement actions as appropriate on a case-by-case basis.
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Response: The guidance attempts to maintain a proper balance
between Headquarters and Regional involvement. The guidance
provides greater autonomy to the Regions than is the current
practice, yet reserves to Headquarters concurrence on issues of
national importance.
pgmnnenfc )f2ii Section I., line 11: "judicial or administrative
process" should be changed to "administrative or judicial
process."
Response: The cited text is a direct (and accurate) quote from
the EPA policy, as indicated by its indentation. As such, it
cannot be changed.
Comment if22; There should be an exemption for working
cooperatively with a tribe for significant non-compliers,
falsification of data and imminent and substantial endangerment.
Response: Page three of the policy guidance provides conditions
when the Agency need not attempt to work cooperatively with a
tribe before taking enforcement action. These conditions would
accommodate your concerns and include: failure of such an effort
to achieve timely compliance (imminent and substantial
endangerment); history of non-compliance (SNCs); and degree of
willfulness (falsification of data).
Comment #23; The issuance of certified letters for every written
communication is extremely burdensome.
Response: The policy guidance requires only the initial contact
with a tribe regarding a violation and offer to work
cooperatively to be sent by certified mail. This is necessary to
preserve an adequate record of the basis for enforcement action.
Comment #24: Seeking penalties against a tribe only when
necessary to secure effective, timely results is too strict. It
should not-be more profitable to violate environmental laws than
to comply with them or to operate in non-compliance on a
reservation than off. EPA could recognize the limited financial
resources of tribes by providing that penalties will be sought
only when a tribe has the ability to pay. Seeking penalties
should be allowed whenever tribes have abused the Federal
Government's trust relationship to the detriment of the
environment.
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Response: The "effective results" standard would allow the
Agency to seek penalties to off-set profits gained through non-
compliance when appropriate. Don't forget that the policy
guidance applies to tribal governments, not to private
enterprises operating on reservations. The presumption against
seeking penalties from tribes is not related to their financial
conditions, which vary widely, but to their status as sovereigns
and as beneficiaries of the Federal Government's trust
relationship with them. A tribe's ability to pay.should be
assessed in calculating penalties through the same procedures
that any other alleged violator's ability to pay is. Tribes have
not been found by the courts or Congress to have any
responsibility to the Federal Government as a result of the trust
relationship. Until such a responsibility is expressly found to
exist and EPA is authorized to regulate it, the Agency should not
penalize tribes for abusing it.
Comment #25; Providing copies of NOVs and other enforcement
documents to the Bureau of Indian Affairs makes no sense at the
local level.
Response: As the agency with primary responsibility for American
Indian affairs and potential owner/lessor of the land involved,
the BIA has a strong interest in enforcement proceedings against
tribes. Since EPA and tribes will often look to the BIA for the
resources to correct violations, it is in EPA's interest to keep
the BIA informed of enforcement proceedings. This contact is
most effective at the Regional level and should not be
burdensome.
Comment #26: "the Regional Administrator may issue emergency
temporary restraining orders" should be changed to "the Regional
Administrator may use applicable emergency enforcement
authorities" because only a judge can issue a TRO.
Response: Some statutes which EPA administers allow the
Administrator (and, by delegation, the Regional Administrators)
to issue administrative orders to stop situations which present
an immediate danger to the environment. It is to these orders
that the policy guidance language (a direct quote from the 1984
implementation guidance) refers. The policy guidance does not
authorize the Regional Administrators to seek judicial temporary
restraining orders through the Department of Justice without the
concurrence of the Office of Enforcement.
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The term "substantial tribal interest" on page 2 is
unclear. It could refer to ownership interest or another type of
interest, such as major employment of Indian workers.
Response: We have changed the language to read "ownership
interest," as that is the only type on interest intended to be
considered.
In order to achieve compliance, EPA may need to
provide funds, such as LUST funds, for clean-up in the event that
an enforcement action or an agreement does not result in clean-
up.
Response: Agreed. The policy guidance encourages such funding
in Section I. B.
Comment #29; There will be many violations which never get
addressed by the Agency, as a tribe may not be able to afford to
come into compliance and, accordingly, an enforcement action
would not achieve timely results.
Response: Enforcement actions are not the primary way in which
the Agency should respond to non-compliance at tribal facilities.
The policy guidance encourages EPA to consider other
alternatives, such as seeking other sources of funding, before
taking enforcement action against tribes. A tribe's inability to
afford to come into compliance is all the more reason that EPA
should help it look for alternative sources of funding and not
take an enforcement action.
Comment #30; EPA should not commit to provide technical support
and consultation as necessary to enable tribal facilities to
comply.
Response: The language referred to is quoted directly from the
EPA Indian Policy. The policy guidance clarifies in Section I.
B. that this support must be "appropriate under the circumstances
and consistent with the availability of resources."
comment #31; The indented paragraph on page 1 should be
rewritten to clarify that enforcement action will be considered
only under certain circumstances.
Response: The indented paragraph is a direct quotation of the
existing Indian policy and cannot be modified by this guidance.
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This guidance interprets and clarifies that language in a manner
which, we hope, addresses your concern.
comment #3 2; Does the policy guidance require EPA to
cooperatively develop a means to achieve compliance before
issuing an information request? It shouldn't. This should be
explicitly stated in the guidance.
Response: The guidance is not intended to require such efforts
before the issuance of an information request. We have added
language to make this clear.
)f33: EPA should involve other agencies and organizations
immediately upon the discovery of the violation, whether such
involvement would facilitate compliance or not as such
involvement would not only facilitate compliance [sic] but could
have a significant impact on the resources EPA would need to
commit.
Response: We have added language to Section I. E. to encourage
early involvement of other agencies and organizations.
Comment #34; The guidance requires the concurrence of the Office
of Enforcement for issues of national significance. It should
define or give examples of such issues.
Response. We have added some examples in Section II to address
your concern.
Comment #35; The guidance should explicitly state that it does
not apply to criminal conduct, criminal investigations or
enforcement under criminal provisions of laws or regulations
which protect lives, health or environment and are enforced by
this Agency.
Response: We have amended what is now footnote 1 to address this
concern.
Comment #36i The guidance ought to be retitled to reflect that
it deals more with civil/administrative enforcement against
tribal governmental entities than with all enforcement within
Indian country.
Response: Agreed. We have changed the title and introductory
paragraph to incorporate this idea.
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jf37» The guidance should specify at what level contact
between EPA and tri-bal leadership should occur. Contact with
tribal councils or chairpersons means that Headquarters should
represent EPA. The guidance seems to contradict itself by
requiring EPA to contact tribal leadership about possible
violations then later saying that it's enough to copy the
leadership on correspondence with the facility's manager.
Response: EPA Regional offices routinely correspond with tribal
councils and chairpersons, just as they do with governors and the
heads of state agencies. There is no reason to alter this
practice for the type of correspondence provided for in the
guidance. Similarly, it is the Region that should determine on a
case-by-case basis exactly what level of leadership within EPA
and the tribe need be involved. Some tribes have established
environmental agencies, whereas others have only a part-time
employee assigned to environmental matters. In the former case,
correspondence with the director of the tribal agency may be
appropriate; the latter may require contact with the tribal
chairperson or council. We assume that the Regional program
offices will work closely with the Regional Indian Coordinators
to determine how the contact should be made . Work group members
believe that in cases when more effective results can be obtained
by dealing directly with the manager of the facility, sending a
copy of the correspondence to tribal leadership will be
sufficient contact with the tribe. We have clarified the
relevant language somewhat.
Comment #38: If EPA bases this guidance on its government-to-
government relationship with tribes, EPA should treat tribes the
same as other governments. Since this guidance treats tribes
differently than state/municipal/local governments, it should
state the reason for doing so (presumably the trust
relationship. )
Response: This guidance interprets the EPA Indian policy's
enforcement provisions. It is not intended to modify the basis
for those provisions.
Comment ^39: The last paragraph should delineate which
delegations are referred to and where they can be found.
Response: EPA delegations are too numerous to cite in the
guidance. EPA legal offices will be able to determine which
delegations are relevant and where they can be found. (Most EPA
libraries have copies of the EPA delegations manuals.)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 2 5 1991
OFFICE OF
GENE RAL COUNSEL
MEMORANDUM
SUBJECT: EPA Statutes Regarding the Role of Indian Tribes in
Managing Reservation Environments
FROM: David Coursen
Attorney-Advisor
TO: Howard Corcoran
Acting Deputy Associate General Counsel
Environmental regulation is a complex process in which EPA
often shares responsibilities with state or tribal governments;
further, it involves activities that can have serious impacts on
human health. Consequently, a clear understanding of EPA's
statutory authorities regarding environmental management on
Indian reservations,, as well as a general understanding of
federal Indian law, is essential to the rational administration
of environmental programs on and affecting Indians and their
lands.
I. Specific Statutes
The Agency's principal focus is the management, on
reservations and elsewhere, of the environmental programs for
which the Agency bears statutory responsibility. Generally, the
environmental statutes under which the Agency operates define a
federal, or a joint state and federal role (often with the state
having a lead role) in environmental management.
The environmental" statutes are not all equally clear in
defining the environmental role of Indian tribes on reservations.
Several of the environmental statutes are completely or partially
silent concerning the role of tribes in the management of
reservation environments. Four statutes explicitly authorize the
Agency to treat Indian tribes in a manner similar to that in
which it treats states: the Clean Water Act (CWA), the Safe
Drinking Water Act (SDWA),, the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA or Superfund),
and the Clean Air Act (CAA); Agency regulations define how tribes
are treated as states under the Water Acts and CERCLA, and the
Agency is currently developing CAA regulations. (The Agency is
also developing regulations defining a tribal role under various
provisions of RCRA).
V-EPA-69
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A. The Water Acts
Under the SDWA, the Agency may treat Indian Tribes as states
and develop regulations specifying those provisions for which a
tribe may be-given such treatment. 42 U.S.C. § 300j-ll(b)(l). A
tribe treated as a state may apply for delegation of primary
enforcement responsibility for public water systems (PWS) and for
underground injection control (UIC), and for grant and contract
assistance.* 42 U.S.C. § 300J-11 (a). Where it* is not
appropriate to treat tribes identically to states, Agency
regulations may provide alternative means for achieving the
purposes of such treatment. 42 U.S.C. S 300j-ll(b)(2). A tribe
need not have criminal enforcement jurisdiction to obtain
treatment as a state. Id.
The CWA authorizes EPA to treat tribes as states and to
develop regulations that specify how tribes will receive such
treatment. 33 U.S.C. S 1377(e). The Agency's regulations should
"provide a mechanism for the resolution of any unreasonable
consequences that may arise as a result of differing water
quality standards that may be set by States and Indian tribes
located on common bodies of .water." Id.
Tribes may be treated as states "to the degree necessary to
carry out the purposes" of the Act. Id. The Act expressly
authorizes such treatment for purposes of Title II of the Act
(grants for waste management treatment works), and for Sections
1254 (research and training program), 1256 (program of grants for
pollution control) 1313, 1315, 1318, and 1319 (relating,
respectively, to the establishment and operation of a state Water
Quality Standards Program, and to reporting, record-keeping and
inspection, and enforcement under such a program); 1324 (Clean
Lakes program); 1329 (Nonpoint Source Management), 1341
(Permits),1342 (National Pollutant Discharge Elimination System
(NPDES)), and 1344 (Permits for dredged or fill material). The
Agency has not treated the Act's list as exhaustive.1
In addition, under both Acts there are grant programs for
which tribal groups not treated as states appear to be eligible.
See e.g. 42 U.S.C. S 300J-1 (b)(3) (SDWA provision authorizing
grants to "any organization."); 33 U.S.C. §§ 1254, 1377 (c) (CWA
provisions authorizing, respectively, grants to wide range of
entities, including "institutions, organizations, and
individuals," and grants for waste management treatment works to
serve certain Indian areas, under Title II). Tribes can assume a
1 For example, the Agency treats tribes as states for purposes
of administering sewage sludge management programs under Section
1355, which is not explicitly mentioned in Section 1377(e). See
54 Fed. Pag. 18782.
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role under, or benefit from, those provisions without receiving
treatment as a state.1
1. The Requirements for Treatment as a State
To qualify for treatment as a state under either Act, a
tribe must demonstrate that it is federally recognized, possesses
"a governing body carrying out substantial duties and powers,"
33 U.S.C. § 1377(e)(l); 42 U.S.C. § 300J-11(b)(1)(A), and is
capable of carrying out the functions it proposes to exercise. 33
U.S.C. 5 1377(e)(3); 42 U.S.C..S 300j-ll(b)(1)(C). Under the
SDWA, a tribe must also show that "the functions to be exercised
are within the area of the Tribal Government's jurisdiction." 42
U.S.C. § 300j-ll(b)(1)(B). Under the CWA, a tribe must show that
the functions "pertain to the management and protection of water
resources ... within the borders of an Indian reservation." 33
U.S.C. § 1377(e)(3) .
The treatment as a state approval processes under the Water
Act regulations promulgated to date are relatively formal and
virtually identical. 40 CFR Parts 35, 124, 141, 142, 143, 144,
145, and 146, 53 Fed. Reg. 37396-414 (September 26, 1988)(SDWA
PWS and UIC regulations); 40 CFR Parts 35 and 150, 54 Fed. Reg.
14354-60 (April 11, 1989)(CWA grant regulations). A tribe
seeking treatment as a state must submit an application which EPA
reviews to ensure that the tribe meets the applicable
requirements. 40 CFR §§ 130.15, 142.76, 145.56.
a) Recognition
SDWA regulations require submission of a "statement that the
tribe is recognized by the Secretary of the Interior." 40 C.F.R.
§§ 142.76 (a) (PWS), 145.56 (a) (UIC). The CWA regulation
requires "documentation that [the Tribe] is recognized by the
Secretary of the Interior." 54 Fed. Reg. at 14355, which can
ordinarily be met by showing the applicant's inclusion on a list
of federally recognized Tribes published by the Secretary of the
Interior. Id.
b) Functioning Government
Under SDWA, the tribe must submit "[a] descriptive statement
demonstrating that the tribal governing body is currently
carrying out substantial governmental duties and powers over a
defined area." 40 C.F.R. -S 142.76 (b)(PWS); § 145.56 (b) (UIC).
This statement must describe the form of the tribal government
and the types of governmental functions it performs'and identify
2 A comprehensive list of grant programs for which tribes may
be eligible, developed in conjunction with guidance on multi-media
grants, is attached as Appendix A.
1-49
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the sources of the authorities to perform those functions.
The CWA regulations do not prescribe the submission of
specific materials, but a tribal submission must include "a
narrative statement (1) Describing the form of Tribal ••
government; (2) describing the types of essential governmental
functions currently performed; and (3) identifying the sources of
authorities to perform those functions (e.g. Tribal
constitutions, codes, etc.)." 54 Fed. Reg. at 14355.
In all its regulations, the Agency has expressed the view
that tribes should generally be able to meet this requirement
"with relative ease [without much difficulty]" 53 Fed. Reg. at
37399 (SDWA) ; [54 Fed^- Reg. at 14355 (CWA)]. This requirement is
intended to "minimize the burdens to a Tribe in demonstrating
that it is carrying out substantial governmental duties and
powers." 54 Fed. Reg. at 14355.
c) Authority
Under the SDWA, a tribe must submit various documents to
support its jurisdictional assertion, including: a map or legal
description of the area over which the tribe has authority; a
statement by a tribal legal official describing the basis,
nature, and subject matter of the tribe's jurisdictional
authority; a copy of-all documents supporting the jurisdictional
assertions (e.g. tribal constitutions, codes, by-laws, charters,
etc.); and a description of the locations of the systems or
sources the tribe proposes to.regulate. 40 C.F.R. §§ 142.76 (c)
(PWS); 145.56 (c) (UIC).
Although the CWA regulations do not list any specific
requirements,, the preamble to the regulation directs submission
of "a statement signed by the Tribal Attorney General or an
equivalent official explaining the legal basis for the Tribe's
regulatory authority over its water resources." 54 Fed. Reg. at
14355.
Before approving" an application for treatment as a state,
EPA notifies "appropriate governmental entities" such as states,
other tribes, and federal land management agencies, as to the
substance of the tribe's jurisdictional assertions and invites
them to comment on those assertions, but not on any other aspect
of the application. 53 Fed. Reg. at 37400; 54 Fed. Reg. at
14355. Where another government raises a competing or
conflicting jurisdictional^ claim, the Agency, after consulting
with the Department of the Interior, will make a final decision
on the tribe's jurisdiction for the particular function in
question. Jd. This is not a determination of the tribe's
general regulatory authority. Id.
d) Capability
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V-EPA-72
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The SDWA regulations require that a tribe submit a narrative
statement describing tribal capability to administer an effective
program. 40 C.F.R. § 142.76(d), 145.56(d). Although the
regulations provide an expansive and detailed list of materials
the tribe roust provide in support of this statement, capability
is primarily a technical rather than a legal question.
Neither the CWA regulation nor the preamble identifies any
specific showings a Tribe must make in order to meet the
capability requirement. See 54 Fed. Reg. 14356. However, the
requirement of section 106 of the Act that the Tribe have
injunctive relief-type authority comparable to that in section
504 of the Act is relevant to the capability requirement for
treatment as a State, although it is identified as a grant
limitation in both the regulation and the preamble. See 40
C.F.R. § 35.260, 54 Fed. Reg. at 14357.
The Water Act regulations require a separate treatment as a
state application for each program for which the tribe seeks such
treatment; however, after an initial approval, the regulations
require a tribe to submit only that additional information unique
to the additional program. 40 CFR SS142.76 (f), 145.56 (f). 54
Fed. Reg. 14356.
2. The Effects of Treatment as a State
The Agency has clearly stated in the preamble to its SDWA
regulation that it "fully intends that once Tribes ... meet the
regulatory requirements for 'treatment as a State' that they will
be treated in the same manner as States except where noted in
this rule (i.e. grant match requirements, developmental grant
tine frames, primary enforcement responsibility requirements,
etc.)." 53 Fed. Reg. at 37403. Thus a tribal application for
primary enforcement responsibility will be subject to the same
requirements as a state application. See 40 C.F.R. §§ 142 10-11
(PWS); 145.21-25, 145.31. (UIC). Similarly, under the existing
Clean Water Act regulations, tribes approved for TAS are treated
in the same manner as states to the extent practical.
• •
B. CERCLA
CERCLA authorizes the Agency to afford "[t]he governing body
of [a federally recognized] Indian tribe ... substantially the
same treatment as a State" with respect to various provisions of
the Act, including 42 U.S..C. §§ 9603 . (a) (regarding notification
of releases), 9604(c) (2) (regarding consultation on remedial
actions), 9604(e) (regarding access to information), 9604(i)
(regarding health authorities) and 9605 ("regarding roles and
responsibilities under the national contingency plan [(NCP) the
regulation that implements CERCLA] and submittal of priorities
for remedial action"). However, tribes, unlike states, are not
V-EPA-73 1-51
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assured of the inclusion of at least one site on the National
Priorities List of sites for remedial action. 42 U.S.C. SS 9601
(36), 9626. Section 9604(c)(3) also treats tribes differently
than states by waiving, for responses on tribal lands, .
requirements CERCLA imposes on states for cost share, assurance
of future maintenance of response actions, and assurance of
availability of a suitable disposal site.
Other provisions of CERCLA that are not referenced in S 9626
also provide roles for tribes that are equivalent to those
available for states. See e.g. 5 9604(d) (authorizing
cooperative agreements with tribes); S 9607(f)(1)(authorizing
tribes to seek recovery.for damages to tribal natural resources).
The Agency has not yet formally decided whether the list of
purposes in S 126 and the express references to tribes elsewhere
in CERCLA limit the Agency's ability to treat tribes as states in
any other context.
The NCP defines the term "state" to include Indian tribes
"except where specifically noted" to the contrary. 40 CFR S
300.5. To qualify for treatment similar to that afforded a state
under CERCLA § 104, which defines Superfund cleanup ("response")
roles and authorities, a tribe must be recognized, have a
governing body carrying out substantial duties and powers, and
have jurisdiction over a Superfund site. 40 CFR S 300.515(b)3.
The tribe need not undergo any formal process to qualify for
"treatment as a state."
If a tribe is treated as a state, EPA will act to ensure
meaningful tribal involvement in the response process, whether •
the cleanup is conducted by a governmental entity or the person
responsible for the site. 40 CFR § 300.500(a). A tribe will be
given the opportunity to review site documents, consult with EPA
at least annually, concur in various decisions relating to the
response 'process, and be formally involved in the selection of
the cleanup. §§ 300.515 (C), (d),(e) (h); 300.525. CERCLA
response actions must attain (or waive) legally applicable, or
relevant and appropriate requirements (ARARs) of tribal law that
are promulgated, more-stringent than federal requirements, and
identified in a timely manner. See 42 U.S.C. § 9621(d). A key
element in the EPA-tribal partnership will be the communication
of potential ARARs and other pertinent advisories, criteria, or
guidance to be considered in selection of the remedy (TBCs). §
300.515(d), 300.525. Tribes have the opportunity to comment on
ARAR waivers. §§ 300.515 (e), 300.525.
Tribes are also treated as states for purposes of the §
9604(j)(2) property acquisition assurance. Thus before EPA
3 The definition of "tribe" in CERCLA does not refer to
jurisdiction. § 9601 (36).
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acquires an interest in real property on a reservation as part of
a remedial action, the tribe must assure, to the extent of its
authority, that it will accept transfer of the property interest
on or before completion of the remedial action. 40 CFR §§
300.510(f); 300.6110(b)(2). However, the Agency has not yet
"address[ed] whether tribes are states for purposes" of providing
the CERCLA § 104(c)(9) assurance regarding capacity to process
hazardous waste expected to be generated in the next twenty
years. S 300.510(e)(2).
The Superfund Administrative Regulation, 40 CFR Part 35,
Subpart O, describes the administrative roles which states,
tribes, and local governments play under Superfund. To assume
such a role, a tribe must meet the requirements established in
the NCP. 40 CFR § 35.6010. Under Subpart O, tribes are
eligible to enter a wide range of agreements with EPA regarding
participation in various types of response activities, as the
lead or support agency. §§ 35.6050-. 6205; 35.6240-62-50. They
are also eligible for core program cooperative agreements to
support their general ability to participate in the response
program. §§ 35.6240-.6255.
C. The Clean Air Act
The recently-amended Clean Air Act (CAA) contain new
provisions authorizing EPA "to treat Indian tribes as States" for
those purposes that EPA, through rule-making, determines
appropriate, and to provide grant and contract assistance "to
such tribes." 42 U.S.C. § 7601 (d)(1). Although a tribal role
under the Act must generally await the development of
implementing regulations, EPA is expressly authorized to
continue making grants to tribes in the absence of such
regulations. 42 U.S.C. § 7601(d)(5).
"Indian tribe" is defined as any Federally recognized
"tribe, band, nation, or other organized group or community." 42
U.S.C. § 7602 (r). The statutory criteria for treatment as a
state are similar to those set forth in the CWA. 42 U.S.C. §§
7601(d)i(2) (recognition, a government, and authority). EPA may
determine that treatment as a state is inappropriate or
administratively infeasible for certain provisions, and directly
administer those provisions, providing the means for such direct
administration through regulation. 42 U.S.C. § 7601(d)(4).
The Act specifies that "[i]f an Indian tribe submits an
implementation plan" to EPA, pursuant to regulations to be
developed by EPA, for attainment and maintenance of the national
ambient air quality standards (NAAQS), such a plan will be
reviewed by EPA under the provisions governing review of State
Implementation Plans (SIPs), unless EPA promulgates regulations
establishing different requirements and review procedures for
1-53
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TIPs. 42 U.S.C. §§ 7410(0) and 7601(d)(3). When EPA approves a
TIP, under regulations to be developed, and it becomes effective
it "shall become applicable to all areas located within the
exterior boundaries of the reservation, notwithstanding the
issuance of any patent." 42 U.S.C. S 7410(o). •
The Act expressly provides for a tribal role in prevention
of significant deterioration (PSD) of air quality on
reservations: "Lands within the exterior boundaries of
reservations of federally recognized Indian tribes may be
redesignated only by the appropriate Indian governing body." 42
U.S.C. S 7474(c). The Agency is charged with resolving disputes
between tribes and states arising from redesignations or permits.
42 U.S.C. S 7474(e). . . -
D. Acts not Expressly Authorizing Treatment of Tribes as States
1. RCRA
The Resource Conservation and Recovery Act, (RCRA), 42
U.S.C. §§ 6901 to 6991i currently refers to Indian tribes only
once, when it defines "municipality" to include Indian tribal
governments. 42 U.S.C. § 6903(13). There is no explicit
provision authorizing EPA to treat tribes as states.
Nonetheless, the Agency has recently decided to issue rules that
permit eligible Indian Tribes to administer the Subtitle C and D
hazardous and solid waste programs under, respectively, 42 U.S.C.
§§ 6926 and 6947, in the same manner as States. Cf. Nance v.
EPA. 645 F.2d 701 (9th Cir. 1981), (upholding treatment of Tribes
in same manner as States under the Clean Air Act absent specific
statutory authorization). The Agency is also considering the
status of tribes as states in other contexts under RCRA on a
case-by-case' basis.
2. FIFRA
The Federal Insecticide, Fungicide, and Rodenticide Act,
(FIFRA), 7 U.S.C. §§ 136 to 136y, refers to Indian tribes only in
§ 136u. That provision authorizes EPA to enter cooperative
agreements with Indian tribes delegating to them authority to
cooperate in enforcement actions as well as to develop and
administer applicator training and certification programs.
EPA regulations under FIFRA authorize tribes to certify
applicators on reservation lands. 40 C.F.R. § 171.10. The
regulations categorize reservations as either subject or not
subject to state jurisdiction. Id. If a reservation is subject
to state jurisdiction "under other federal laws," pesticide users
or supervisors must be certified under the appropriate state
certification plan. 40 C.F.R. § I7l.i0(b). If a reservation is
not subject to state jurisdiction, the tribe has the option of
1-54
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adopting either a tribal certification plan or using one
previously adopted by the state. 40 C.F.R. § 171.10(a). The
regulations recognize that some tribes will neither develop
tribal certification plans nor use existing state plans. 40
C.F.R. S 171.11. In this instance, EPA will implement a plan for
federal certification of applicators or restricted use
pesticides. Id. The regulations describe the types of persons
subject to the rules; applicable standards; record-keeping
requirements; recognition of other certificates; procedures for
denial, suspension, modification, or revocation of certificates;
and pesticide dealer requirements.
This is the sole reference to tribes in FIFRA, and the
statute's definition of state does not include Indian tribes.
Further, Indian tribes have not been carrying out those
activities which FIFRA authorizes states to do, such as issuing
special local need registrations.
3. TSCA
The Toxic Substances Control Act, (TSCA), 15 U.S.C. §§ 2601
to 2654, allows tribes to assume a local regulatory role. Under
Title II, tribes that run their own schools are treated as Local
Education Authorities and assume responsibility to inspect their
schools for asbestos and to develop plans for managing asbestos
problems.
4. Title III
The Emergency Planning and Community Right to Know Act
(EPCRA or Title III), 42 U.S.C. §§ 11001 to 11050 does not
mention Indian tribes. Nevertheless, the Agency concluded that
the .purposes of Title III were best served by a tribal role,
comparable to the role a state assumes in planning and
information-gathering. EPA utilized its authority to fill
statutory gaps to define this role. Moreover, the Agency further
found that tribes should assume this role on a reservation-wide
basis. In announcing its decision, the Agency used the following
reasoning:
The requirements of an effective Title III program indicate
that Congress intended that only one governing authority
implement the program within a given area. Implementation
of Title III by more than one governing authority would be
unwieldy and contrary to the dictates of local emergency
response planning. ... In summary, because Congress
envisioned effective and comprehensive emergency response
planning under Title III it is reasonable to interpret the
statute ... as contemplating only one governing authority
implementing the Act within a single geographic area.
54 Fed. Reg. 12992, 13001 (March 29, 1989).
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II. The Indian Policy
EPA's implementation of its various statutory authorities on
Indian Land is governed by the Agency's 1984 Indian Policy. Based
on President Reagan's 1983 Indian Policy (twice reaffirmed'by
President Bush, most recently on June 14, 1991) the thrust of the
EPA Policy is to encourage tribal self-determination. The Policy
states that the Agency will "work directly with Indian Tribal
Governments on a one-to-one basis (the 'Gover.nment-to-Government'
relationship)." It also "recognizes Tribal Governments as
sovereign entities with primary authority and responsibility for
the reservation populace." It commits the Agency to "encourage
and assist tribes in assuming regulatory and program management
responsibilities for reservation lands."
The Policy has most recently been reaffirmed by the
Administrator's July 10, 1991 endorsement of "Federal, Tribal
and State Roles in the Protection and Regulation of Reservation
Environments: A Concept Paper." The Paper also reiterates that
on a reservation, "[u]ntil 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."
1-57
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ATTACHMENT 1
, •
MULTI-MEDIA ASSISTANCE AGREEMENTS FOR INDIAN TRIBES
SUMMARY OF EPA GRANT PROGRAMS
MEDIA PROGRAM OFFICE
GRANT
Office of Air and Radiation
Office of Air and Radiation
Office of Water
Office of Hater
Office of Water
xffice of Water
Office of Water
Office of Water
Office of Water
Office of Water
§105, Clean Air Act
•
§306, Indoor Radon
Abatement Act
§106, Clean Hater Act,
Surface Hater Grant Program
§140(b)(3), Clean Water Act,
Wetlands Grant Program
§104(b)(3). Clean Water Act,
Hater Quality Management
§205(»), Clean Water Act,
State Revolving Loan Program
§320(g) and §205(1), Clean
Hater Act, National Estuary
Program
§§319(h), 205(j)(5), and
201(g)(l)(b), Clean Water Act,
Non-point Source Grant Program
§314, Clean Water Act,
Clean Lakes Program
§1443(b) Safe Drinking Water
Act, UIC Grant Program
§1428(a),(b) Safe Drinking
Water Act, Public Water
Systems Supervision (PWSS)
Grant Program
1-58
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9250
r>f><0fa- g.O
Federal Register / Vol. 60, No. 32 / Thursday, February 16. 1995 / Notices
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Indian Entities Recognized and Eligible
To Receive Services From The United
States Bureau of Indian Affairs
AGENCY: Bureau of Indian Affairs.
Interior. «
ACTION: Notice.
SUMMARY: Notice is hereby given of the
current list of tribal entities recognized
and eligible for funding and services
from the Bureau of Indian Affairs by
virtue of their status as Indian tribes.
This notice is published pursuant to
Section 104 "of the Act of November 2.
1994 (Pub. L. 103-454; 108 Stat. 4791.
4792).
FOR FURTHER INFORMATION CONTACT:
Patricia Simmons. Bureau of Indian
Affairs, Division of Tribal Government
Services. 1849 C Street N. W.,
Washington, DC 20240. Telephone
number. (202) 208-7445.
SUPPLEMENTARY INFORMATION: This
notice is published in exercise of
authority delegated to the Assistant
Secretary—Indian Affairs under 25
U.S.C. 2 and 9 and 209 DM 8.
Published below are lists of federally
acknowledged tribes in the contiguous
48 states and in Alaska. The list is
updated from the last such list
published October 21.1993 (58 FR
54364) to include tribes acknowledged
through the Federal acknowledgment
process and legislation. We have
continued the practice of listing the
Alaska Native entities separately solely
for the purpose of facilitating
identification of them and reference to
them given the large number of unusual
and complex Native names.
In October 1993, the Department
published its most recent list in an effort
to bring the-list up to date as required •
by 25 CFR Part 83 and in an effort to
clarify the legal status of Alaska Native
villages. As described in the preamble to
the October 1993 list, the first list of
acknowledged tribes was published in
1979. 44 FR 7235 (Feb. 6.1979). The list
used the term "entities" in the preamble
and elsewhere to refer to and include all
the various anthropological
organizations, such as bands, pueblos
and villages, acknowledged by the
Federal Government to constitute tribes
with a govemment-to-govemment
relationship with the United Stales. A
footnote defined "entities" to include
"Indian tribes, bands, villages, groups
and pueblos as well as Eskimos and
Aleuts." 44 FR 7235 n.l. The 1979 list
did not, however, contain the names of
any Alaska Native entities. The
preamble stated that: "Itlhe list of
eligible Alaskan entities will be
published at a later date." 44 FR 7235.
Under the Department's
acknowledgement regulations,
publication of the list serves at least two
functions. First, it gives notice as to
which entities the Department of the
Interior deals with as "Indian tribes"
pursuant to Congress's general
delegation of authority to the Secretary
of the Interior to manage all public
business relating to Indians under 43
U.S.C. 1457. Second, it identifies those
entities which are considered "Indian
tribes" as a matter of law by virtue of •
past practices and which, therefore,;
need not petition the Secretary for a
determination that they now exist as
Indian tribes-See 25 CFR 83.3 (a), (b)
and 83.6(a) (1993 ed.); 25 CFR 83.3(a).
(b) (1994 ed.). Because the Department
did not include any Alaska entities' in
its initial publication and characterized
its publication in 1982 of the Alaska :
entities as a "preliminary list" (47 FR
53133). the intended functions of the
publication of the list were not fully • .
' implemented for Alaska until October .
1993.
The entities listed on the 1982
"preliminary list" parallel the kinds of
entities included on theiist for the
contiguous 48 states. The regional.'
village and urban corporations
organized under state law in accordance
with the Alaska Native Claims
Settlement Act (ANCSA) (43 U.S.C
1601 et seq.) were not listed although' -
they had been designated as "tribes" for
the purposes of some Federal laws.
primarily the Indian Self-Determination
and Education Assistance Act (ISOA),
25 U.S.C. 450b(b). In addition, between
1982 and 1986. a number of Alaska
Native entities complained that they
had been wrongly omitted from the lists
that were published in those years. .
Some groups in the contiguous 48 states
have also complained that they had '
been wrongly left-off the lists and •
should not have to go through the
burdensome process of petitioning.
While the Department had conceded' •
that its 1982 list for Alaska was • '
"preliminary." it had made no such
concession with regard to groups in the
contiguous 48 states. Therefore, the •
Department required all groups from the
contiguous 48 states to petition in order
to be placed on the list.
In 1988, in an effort to resolve all
pending questions as to the Native
entities to be listed and the eligibility of
entities described as "tribes" by .
Congress in post-ANCSA legislation but
not otherwise thought of as "Indian
tribes," i.e., the state-chartered ANCSA
Native corporations, the Department
published a new list of Alaska entities.
The preamble to the list stated that the
revised list responded to a "demand by
the Bureau and other Federal agencies
* * * for a list of organizations which
are eligible for their funding and
services based on their inclusion in
categories frequently mentioned in.
statutes concerning Federal programs
for Indians." 53 FR 52832.
Unfortunately, the 1988 revisions of
the Alaska Native entities list appeared
to create more questions than it
resolved. The omission from the 1988 .
preamble of all references
acknowledging the tribal status of the
listed villages, and the inclusion of .-
ANCSA corporations (which are
formally, state-chartered corporations
rather than tribes in the conventional
legal or political sense) generated
questions as to the status of all the listed
entities. Numerous Native villages,
. regional tribes and other Native
. organizations objected to the 1988 list
on the grounds that it failed to
' distinguish between Native corporations
• and Native tribes and failed to
unequivocally recognize the tribal status t
of the listed villages and regional tribes.":
That the Department had'considered
Alaska Native villages to possess tribal .
status is evident from the Solicitor's
1993 historical review of this matter.
In January 1993 the Solicitor of the
Department of the Interior issued a
comprehensive opinion analyzing the
status of Alaska Native villages as
"Indian tribes." as that term is
commonly used to refer to Indian
entities in the contiguous 48 states.
After a lengthy historical review and
legal analysis, the Solid tor concluded
that:
For the last half century. Congress arid the
Department have dealt with Alaska Natives
as though there were tribes in Alaska.The;
fact that the Congress and the Department
may not have dealt with all Alaska Natives.
as tribes at all times prior to the 1930's did
not preclude it from dealing with them as
tribes subsequently..
Sol. Op. M-36975. at 46,47-48 (Jan. 11.
1993).
Although the Solicitor found it
unnecessary for the purposes of his
opinion to identify specifically which .
villages were tribes, he observed that
. Congress* listing of specific villages in
ANCSA and the repeated inclusion of
such villages within the definition of
"tribes" in post-ANCSA legislation
. -arguably constituted a congressional
determination that the villages found
eligible for benefits under ANCSA.
referred to as the "modified ANCSA
list." were Indian tribes for purposes of
Federal law. M-36975'at 5B-59
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Federal Register / Vol. 60. No. 32 / Thursday. February 16, 1995 / Notices
9251
In response to the guidance in the •
Solicitor's Opinion, the Bureau of
Indian Affairs reviewed the "'modified
ANCSA list" of villages and the list of
those villages and'regional tribes
previously listed or dealt with by the
Federal Government as governments. ;
The result of that review was the list of *
tribal entities published on October 21.
1993. The October 1993 list represents
a list only of those villages and regional-
tribes which the Department believesto
have functioned as political entities,
exercising governmental authority. The
listed entities are. therefore.
[ Ak Chin Indian Community ofPapagp
Indians of the Maricopa. Ak Chin
Reservation. Arizona
Alabama and Coushatta Tribes of Texas
Alabama-Quassarte TnbalTown of the
Creek Nation-of Oklahoma
} Alturas Indian Rancheria-ofJBilJUMer.
Indians ot (Jalitomia
Apache Tribe of Oklahoma
Arapahoe Tribe of the Wind River
Reservation. Wyoming
Aroostookfiand of Micmac Indians of
Maine
Assiniboine and Sioux Tribesof the Fort.
Peck Indian Reservation. Montana
acknowledged to have "the immunities jf. Augustine Band-of Cahuilla Mission
and privilegesavdUblew.*uthain« been
wii hd« wn or modiTiad.
Jnoiansot Uie-Campo Jndian
Reservation. Califomia '
Barona Group of iCanltnh'fitandft Band
of Mission Indians of ahe'fiaiona
Reservation. California
VieiasfBargnijong'XkpupoTCapitan'
Grande Band of Mission Indians «T
CoeurD'AleneTribe of theCoeur
D'Alene;ReservaQ on. Idaho .
Cold SpnngsSancheria ofMeno Indians
of California r~~ - _ •"•"
Colorado "River Indian 'Keservation.
Arizona and California
Comanche Indian Tribe of Oklahoma
Confederated SaTish A KootenaiTnbes
of (heTlathead Reservatioa.-Montana
Confederated Tribes of the Chehalis •
Reservation, Washington
Confederated Tribes of\theŁolville
Reservation. Washington-
Confederated Tribesof•rheCoos.lnwer
Umpqua-and-'SiuclaWindianseT
'Oregon
.Confederated Tribes of.the-Coshute Jj
Reservation. Nevada andtitah
Confederated Tribes of T
Califomia -
Crow Tribe o'f Montana
1-60
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9252 Federal Register / Vol. 60, No. 32 / Thursday, February 16. 1995 / Notices
Crow Creek Sioux Tribe of the Crow
Creek Reservation, South Dakota
Jjj. Cuyapaipe Community of Diegueno
Mission Indians of tn
e Cuyapaipe
Reservation, California
Death Valley Timbi-Sha Shoshone Bario
or California
Houlton Band of Maliseet Indians of
Maine
jWtLualapaiJadian Tribe of the Hualapaj
Indian Reservation. Arizona
Band of Diegueno Mission Indians
d Cc
Lower Sioux Indian Community of
Minnesota Mdewakanton Sioux .
Indians of the Lower Sioux
Reservation in Minnesota *
Lummi Tribe of the Lummi Reservation,
Washington
Delaware Tribe of Western Oklahoma ^7Ione Band of Miwok Indians of
Devils Lake Sioux Tribe of the Devils California
/.o Lyttpn Rancheria of California
v Mi
3 f
of the Inaja and Cosmit Reservation,
California
lakah Indian Tribe of the Makah Indian
Reservation, Washington
Lake Sioux Reservation, North Dakota Iowa Tribe of Kansas and Nebraska &y Manchester Band of Porno Indians of the -
Dry Creek Rancheria of Pomo Indians of rowa Tribe of Oklahoma • "Manchester-Point Arena Rancheria -
California —— ^nf Jackson Rancheria of Me-Wuk Indians of ' Caijfomja
California " ' . :''*t'Manzanita Band of Pieguenn Mi«inn
Jamestown Klallam Tribe of Washingtor^ todiam 0] the Manzanita Reservation.
lamul Indian Village of California r_alifnmia
icarmaApacne Tribe o«he Jicarilla ^S*« Pequot Tribe of ,.
• 5?hn^}innp Trih*» of thf*
Duckwater Reservation, Nevada
Eastern Band of Cherokefe Indians'of
North Carolina
Eastern Shawnee Tribe of Oklahoma
' Elem Indian Colon v of Pomo. Indians of
*7fg
Apache Indian Reservation, New
Mexico
the Sulphur Bank Rancheria,
California .
.-?y Elk Valley Rancheria of California
f,p ftCajbab Band of Paiule Indi
r;jc.iv Shoshone TpBe of N
naofl
fcnteroriSR Ranrhpri
• of California
Flandreau Santee Sioux Tribe of South
Dakota
Forest County Potawatomi Community
of Wisconsin Potawatomie Indians.
Wisconsin
Fort Belknap Indian Community of the
• Fort Belknap Reservation of Montana
*t-Z Fort Bidwell Indian Community of
I'aiute Indians of the Fort Bidwell
.-. , c Reservation..Califomia
•7.3 Łprt Independence Indian Community
01 Kaiute Indians of the Fort
Independence Reservation, California
if ŁPJLMcDermitt Paiute and Shoshone
Woes of the Fort McDerrnitt Indian
Reservation, Nevada
VF iGTlMcDpweJl Mohave-Apache Indian
Community of the Fort McDowell
an Reservation, Arizona
*? b tutLMojave. Indian Tribe of Arizona
Fort Sill Apache Tribe of Oklahoma
Kaibab Indian Reservation. Arizona
Kalispel Indian Community of the .
>da Kalispel Reservation, Washington
Maidu Indians /L/Karuk Tribe of California . .
Band of Pomo Indians of the
Stewarts Point Ranchena, Calilornia
Kaw Indian Tribe of Oklahoma
Keweenaw Bay Indian Community of
L'Anse and Ontonagon Bands of
Chippewa Indians of the L'Anse
Reservation, Michigan
Kialegee Tribal Town of the Creek
Indian Nation of Oklahoma
Kickapoo Tribe of Indians of the
Kickapoo Reservation in Kansas
Kickapoo Tribe of Oklahoma
Kickapoo Traditional Tribe of Texas
Kiowa Indian Tribe of Oklahoma
Klamath Indian Tribe of Oregon
Kootenai Tribe of Idaho y . Moap?
Connecticut
•j f Mechoopda Indian Tribe of Chico
Rancheria. California
' Menominee Indian Tribe of Wisconsin
-y2 Mesa Grande Band of Diegueno Mission'
Indians of the Mesa Grande ~' •""
Reservation, California
Mescalero Apache Tribe of the
Mescalero Reservation. New Mexico
Miami Tribe of Oklahoma '..'.-.
Miccosukee Tribe of Indians of Florida •
-jŁ Middletown Rancheria of Pomo Indians
of California ' '
Minnesota Chippewa Tribe. Minnesota
(Six component reservations:
Bois Forte Band (Nett Lake); Fond du
Lac Band; Grand Portage Band;
Leech Lake Band; Mille Lac Band;
White Earth Band)
Mississippi Band of Choctaw Indians.
Mississippi
Me Indians of the
_
Community of the Gila River Indian
Reservation of Arizona
brand Traverse Band of Ottawa &
r ^-nippewa Indians of Michigan
frf ireenvil e Rancheria otMaidu Indians
1 *-a»'omia ;r~ : :
Rancheria of Wintun
Indians of California
ancherin nf ralif^i.
.... Indian.Community of
Wisconsin Potawatomie Indians of
Michigan
Indians of the La Jolla Reservation
California
loULa Posla Band of Djegueno Mission
Indians of the La Posta Indian
Reservation, California
Lac Courte Oreilles Band of Lake
Superior Chippewa Indians of the La
Courte Oreilles Reservation of
Wisconsin
Lac du Flambeau Band of Lake Superior
Chippewa Indians of the Lac du
Flambeau Reservation of Wisconsin .
Lac Vieux Desert Band of Lake Superior
Chippewa Indians of Michigan
/gLas Vegas Tribe of Paiute Indians of the'
Las ve
an Reservation,
Moapal
Nevada
Modoc Tribe of Oklahoma
Mohegan Indian Tribe of Connecticut
j?j{ Mooretown Rancheria of Maidu Indians
of California
iorongo Band of Cahuilla I
Indians of the Morongo Reservation,
California
Muckleshoot Indian Tribe of the
Muckleshoot Reservation, Washington
Muskogee (Creek) Nation of Oklahoma
Narragansett Indian Tribe of Rhode
Island
H 1' Arizona
"o-Chunk Nation of Wisconsin
formerly known as the Wisconsin
- .•
ian Tribe of the Hoh Indian
Sa°n'Washi
Utah
NezPerce Tribe of Idaho
Nisqually Indian Tribe of the NisquaHy
-Reservation, Washington
Nooksack Indian Tribe of Washington
Northern Cheyenne Tribe of the
Northern Cheyenne Indian
Reservation, Montana V--:
/•y Lovelock Paiute Tribe of the Lovelock "7^North fork Rancheria of Mono Indians of
. Indian Colony. Nevada «• • California
/egas Indian Colony, Nevada
Little River Band of Ottawa Indians of
Michigan
Little Traverse Bay Bands of Odawa .
Indians of Michigan
Ł{.Los Coyotes Band of Cahuilla Mission
Indians of the Los Coyotes " • •--
Reservation, California
, California
[Band of Pomo Indians.of the
~ servation, California
i Colony.
Lower Brule Sioux Tribe of the Lower
Brule Reservation, South Dakota
Lower Elwha Tribal Community of the
Lower Elwha Reservation,
Washington • *'.
California .
North western Band of the Shoshoni •
Nation of Utah (Washakie)
Oglala Sioux Tribe of the Pine Ridge
Reservation. South Dakota
Omaha Tribe of Nebraska'
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.Federal Register / Vol 60. No. 32 / Thursday. February 16. 1995 / Notices
9253
Oneida Nation of New York
Oneida Tribe of Wisconsin
Onondaga Nation'of New York
Osage Nation of Oklahoma
Ottawa Tribe of Oklahoma
Otoe-Missouria Tribe of Oklahoma
Paiute Indian Tribe of Utah
Paiute-Shoshone Indians of the Bishop
Community of the Bishop Colony.
California
Paiute-Shoshone Tribe of the.Fallon
Keservation and Colony. Nevada
Paiute-Shoshone Indians of the Lone
Pueblo of Taos. New Mexico
Pueblo of Tesuque, New Mexico
Pueblo of Zia. New Mexico •
Puyallup Tribe of the Puyallup .
Reservation. Washington
a 1 Pyramid Lake Paiute Tribe of the
Pyramid Lake Reservation,
Washington
Quapaw Tribe of Oklahoma
Ł> iQuartz Valley Indian Community of .the
7<< I
nne Community of the Lone Pine
Reservation, California
ff-j. Pala Band of Luiseno Mission Indians o
the fata Reservation, California
g"3 Jfocua Yaqui Trihe of Ari^nn.
* o Faskenta BanTof Nomlaki inHS.n. »f
i California r^ -
Passamaquoddy Tribe of Maine
Quartz Valley Reservation of
California
Tribe i
Reservation. Caiaomia"
.
Quileute Tribe of the Quileute
R.e»™t»°n. Washington
^umault Tnbe of the Quinault
. Reservation. Washington .
^/Ramona Band or Village of Cahuilh.
' Mission Indians of California
Red Cliff Band of Lake Superior
nn-.^
- il "J'i-u r», • • Ł/ fRincpn
inarlcs Inrfinn f!n1rm
D» w—"."Ł •!_ r». . • ^ piMiiupn band of Luiseno Mission
PenobscotTnbeo Maine ^ * Indians of the Rincon ReservatiSn.
Peona Tnbe of Oklahoma California
* 7 Pifayune Rancheria of Chukchansi ?O Robinson Rancheria of Pomo Indian, bf
Indians ol California ' California" -
.9$ Pin°leville Rancheria of Pomo Indians Rosebud Sioux Tribe of the Rosebud
ol California Indian Reservation. South Dakota
9
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9254
Federal Register / Vol. 60, No. 32 / Thursday, February 10, 1995 / Notices
J3.Q Table Bluff Rancheria of Wivot Indians
. of California •
IT I Table Mountain Rancheria of California
^ *-k'--'- Yribes of Western Shoshone
Indians of Nevada .
Thloplhlocco Tribal Town of the Creek
Nation of Oklahoma
Three Affiliated Tribes of the Fort
Berthold Reservation, North Dakota
Tohono O'odham Nation of Arizona
(formerlyTnown as the Papago Tribe
of the Sells, Gila Bend & San Xavier
Reservation, Arizona)
Tonawanda Band of Seneca Indians of
New York
Tonkawa Tribe of Indians of Oklahoma
2 ^Torres-MartinezBandI of Cahuilla
/ ~ . Mission Indians of California _
/ Lv Tule River Indian Tribe of the Tule '
River Reservation, California
Tulalip Tribes of the Tulalip *
Reservation, Washington
Tunica-Biloxi Indian Tribe'of Louisiana
y^2. 7 Tuplurnne Band of Me-Wuk Indians of
the Tuolumne Rancheria of California
Turtle Mountain Band of Chippewa .
Indians of North Dakota
Tuscarora Nation of New York'
• ttf Twenty-Nine Palms Band of Luiseno'
Mission Indians of California
f Ł,Q United Auburn Indian Community of
the Auburn Rancheria of California .
United Keetoowah Band of Cherokee
Indians of Oklahoma
/ Ł/•> Upper Lake Band of Porno Indians of
~* Upper Lake Rancheria of California
Upper Sioux Indian Community of the
Upper Sioux Reservation, Minnesota
I Ipper Stagit Indian Tribe of
Washington
lltw Indian Tribe of the Uintah & Ouray
Reservation, Utah
Ulc Mountain Tribe of the Ute Mountain
Reservation. Colorado. New Mexico &
Utah
/ 3 ( Ulu Utu Gwaitu Paiule Tribe of the
Bonton Paiute Reservation, California
/ .-3 Ł. Walker River Paiute Tribe of the Walky
River Reservation, Nevada
Wampanoag Tribe of Gay Head
(Aqumnah) of Massachusetts
t % q VVashop Tribe of Nevada A California
" Hoarsen Colony, Dresslerville A
Washoe Ranches)
jVhite Mountain Apache Tribe of the
Fort Apache Reservation, Arizona'
Wichita and Affiliated Tribes (Wichita,
Keechi. Waco & Tawakonie) of
Oklahoma
Winnebago Tribe of Nebraska
Winncmiicra IndUn Colony of Nevada
Wyandotle Tribe of Uklahoma
Yankton Sioux Tribe of South Dakota
/ $& IfiSflBftl Apache Nation of the Camp
Verde Reservation. Arizona
/ '
. reservation, Arizooo
t J- a Yerineton Paiute Tribe of the Yerinytnp
Colony & Campbell Ranch, Nevada
ShoshoneTrib _
Reservation, Nevada ."••""
fsleta Del Sur Pueblo of Texas .
Vurok Tribe of the Yurok Reservati
California ••...••..
Zuni Tribe of the Zuni Reservation, New
Mexico " .-'.
Native Entities Within the Stale of
Alaska Recognized and Eligible to
Receive Services Fran' the United .. -
States Bureau of Indian Affairs .-- •
Village of Afognak .". ..'..,...-..::.
Native Village of Akhiok. : • '•''•.
Akiachak Native Community-. . '••: • .
Akiak Native Community. ''....
Native Village of Akutan .•'..•- ' •••"."-"
Village of Alakanuk"
Alatna Village
Native Village of
Algaaciq Native Village (St Mary's)
Allakaket Village , , .1
Native Village of.Ambler •.; - : . • .
. Village of Anaktuvuk Pass "' -
Yupiit of Andreafski ' ' -"•
Angoon Community Association '
Village of Aniak ,.'''"""
Anvik Village , .' .-
Arctic Village (See Native Village of
Venetie Tribal Government) -'~ :
Native Village of Atka >
Atqasuk Village (Atkasook) •
Village of Atmautluak '
Native Village of Barrow ' '.
xBeaver Village • .
Native Village of BeJVofski
Village of Bill Moore's Slough. .
Birch Creek Village "":..","
Native Village of Brevig Mission
Native Village of Buckland
Native Village of Cant well
Native Village of Chanega (aka Chenega)
Chalkvitsik Village
Village of Cliefornak
Chevak Native Village
Chickaloon Native Village
Native Village of Chignik
Native Village of Chignik Lagoon
Chignik Lake Village
Chilkat Indian Village (Kluckwan)
Chitkoot Indian Association (Haines)
Chtntk Eskimo Community (Golovin)
Native Village of Chistochina
Native Village of Chitina .
Native Village of Chuatbaluk.. ... •' .
Native Village of Dillingham • - ~
Native Village of Diomede(«kalnalik)
Village of Dot Uke •••"-<- -
Douglas Indian Assodatibn
Native Village of Eagle ,•
Native Village of Eek- -'
Egegik Village
Eklutna Native Village
Native. Village of Ekuk "•'.'"•
EkwokVillage
Native Village of Elim
Emmonak-Village •
Evansville Village (aka Settles Field)
Native Village of Eyak (Cordova)
Native Village-of False Pass
Native Village of Fort Yukon
Native Village ofGakona
Galena Village (aka Louden Village)
Native Village of Gambell . / .
Native Village of Georgetown .
Native Village of Goodnews Bay-
Organized Village of Grayling (aka
Holikachuk).
Gulkana Village • .
Native Village of Hamilton .
Healy Lake Village
. Holy Cross Village ;
Hoonah Indian Association
Native-Village of Hooper Bay.
Hughes Village • •-•.-.
Huslia Village ••-••
• Hydaburg Cooperative Association '
Igiugig Village .
Village of Iliamna • .•
. Inupiat Community of the Arctic Slope
Ivanoff Bay Village
Kaguyak Village
Organized Village of Kake
Kaktovik Village (aka Barter Island)
Village of Kalskag
Village of Kaltag
Native Village of Kanatak
Native Village of.Karluk
Organized Village of Kasaan
Native Village of Kasigluk
Kenaitze Indian Tribe -
Ketchikan Indian Corporation
Native Village of Kiana
Agdaagux Tribe of King Cove
King Island Native Comrnunity
Native Village of Kipnuk
Native Village of Kivalina
Klawock Cooperative Association
Native Village of Kluti Kaah (aka Copper
Center)
. KnikTribe
Native Village of Kobuk
Kokhanok Village
Koliganek Village
Native Village of Kongiganak •
Village of Kotlik '
Native Village of Kotzebue
Native Village of Koyuk :
Koyukuk Native Village '
Organized Village of Kwetbluk
Native Village of Kwigfllingok ,
Native Village of Kwnhagak (oka
Quinhagak) ' •. , .• ". • .v :
Nati ve Village of Larsen Bay •:• •
Levelock Village :• .
Lesnoi Village (aka Woody Island)
• Lime Village '
.Village of Lower Kalskag ;
Manley Hoi Springs Village •
' Manokotak-Village
1-63
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Federal Register / Vol. 60, No. 32 / Thursday. February 16, 1995 / Notices
9255
Native Village of Marshall (aka Eortuna
Ledge)
Native Village of Mary's Igloo
McGrath Native Village
Native Village of Mekoryuk
Mentasta Lake Village
Mellakatla Indian Community. Annette
Island Reserve
Native Village of Minto
Native Village of Mountain Village
Naknek Native Village
Native Village of Nanwalek (aka English
" Bay)
Native Village of Napaimute
Native Village of Napakiak .
Native Village of Napaskiak
Native Village of Nelson Lagoon
Nenana Native Association .- . '
New Stuyahok Village. • '
Newhalen Village
Newtok Village
Native Village ol Nightmute
Nikolai Village
Native Village of Nikolski
Ninilchik Village
Native Village of Noatak
. Nome Eskimo Community
Nondalton Village
Noorvik Native Community
Northway Village
Native Village of Nuiqsut (aka Nooiksut)
Nulato Village
Native Village of Nunapitchuk
Village of Ohogamiut
Village of Old Harbor
Orutsararmuit Native Village (aka
Bethel)
Oscarville Traditional Village
Native Village of Ouzinkie
Native Village of Paimiut
Pauloff Harbor Village
Pedro Bay Village.
Native Village of Perryville
Petersburg Indian Association
Native Village of Pilot Point
Pilot Station Traditional Village
Native Village of Pitka's Point
Platinum Traditional Village
Native Village of Point Hope
Native Village of Point Lay
Native Village of Port Graham
Native Village of Port Heiden
Native Village of Port Lions
Portage Creek Village (aka Ohgsenakale)
Pribilof Islands Aleut Communities of
St. Paul & St. George Islands
Qagan Toyagungin Tribe of Sand Point
Village .
Rampart Village
Village of Red Devil . '
Native Village of Ruby
Native Village of Russion Mission
(Yukon)
Village of Salamatoff
Organized Village of Saxman
Native Village of Savoonga
' Saint George (See Pribtrof Islands Aleut
Communities of St. Paul & St. George
Islands) •
Native Village of Saint Michael
Saint Paul (See Pribilof Islands Aleut
Communities of St. Paul & St. George
Islands)
Native Village of Scammon Bay
Native Village of Selawik
Seldovia Village Tribe
Shageluk Native Village
Native Village of Shaktoolik
Native Village of Sheldon's Point
Native Village of Shishmaref.
Native Village of Shungnak
Sitka Tribe of Alaska
Skagway Village
Village of Sleetmute
Village of Solomon
South Naknek Village
Stebbins Community Association
Native Village of Stevens
Village of Stony River
Takotna Village .
Native Village of Tanacross
Native Village of Tanana
Native Village of Tatitlek'."
Native Village of Tazlina
Telida Village
Native Village of Teller
Native Village of Tetlin
Central Council of .the Tlingit & Haida
, -Indian Tribes
Traditional Village of Togiak '
Native Village of Toksook.Bay
Tuluksak Native Community "
Native Village of Tuntutuliak
Native-Village of Tununak
Twin Hills Village
Native Village of Tyonek
Ugashik Village , . . .
Umkumiute Native Village
Native Village of Unalakleet.
Qawalingin Tribe of Unalaska
Native Village of Unga
Village of Venetie (See Native Village of
Venetie Tribal Government)
Native Village of Venetie Tribal
• Government (Arctic Village and
Village of Venetie)
' Village of Wainwright
Native Village of Wales
Native Village of White Mountain
Wrangell Cooperative Association
Yakutat Tlingit Tribe
Ada E. Deer.
Assistant Secretary—Indian Affairs.
IFR Doc. 9S-3B39 Filed 2-15-95; 8:45 am)
BtWJNG CODE 4)10-Ol-4>
1-64
-------
Tribal Elgribility and Funding
-------
OVERVIEW
CATEGORICAL (PROGRAM) and PROJECT
FINANCIAL
ASSISTANCE FROM
EPA
July 1995
ii-i
-------
CLEAN AIR ACT
(CAA)
Major Objective: To Protect public health and welfare from
harmful effects of air pollution.
Grants:
* Section 105 Air Quality Program Development and
Implementation
Section 103 R & D, Pilot Projects and Special Studies
* Requires EPA approval of Tribal eligibility application for
financial assistance
CLEAN WATER ACT
(CWA)
Major Objective: To restore and maintain the "chemical,
physical and biological integrity of the nation's
waters", primarily through eliminating or
controlling the discharge of pollutants into water
systems (oceans, rivers, streams, lakes, estuaries,
aquifers, wetlands).
GRANTS:
* Section 106 Water Quality Assessment and Planning
* Section 314 Clean Lakes
* Section 319(h) Non-Point Source Program
* Section 205 State Revolving Loan Program/Construction
Wastewater Facilities
Section 104(b)(3) R & D, Pilot Projects & Special
Studies
Wetlands
Non-Point Source
Water Quality Management (Sludge
& Wastewater Discharge
Management)
*Requires EPA approval of Tribal eligibility application for
financial assistance
-------
SAFE DRINKING WATER ACT
(SDWA)
Major Objective: To assure that the Nation's drinking water
supply is safe for human consumption by regulating both
public water supply systems and ground water supplies.
Grants:
* Section 1443(a) Drinking Water Programs - Public
Water Supply Supervision (PWSS)
Program Development and
Implementation
* Section 1443(b) Underground Injection Control Program
Development and Implementation
Section 1442(b)(3) R & D, Pilot Projects & Special
Studies
PWSS
Wellhead Protection
*Requires EPA approval of Tribal eligibility application for
financial assistance
TOXIC SUBSTANCE CONTROL ACT
(TSCA)
Major Objective: To identify and control reasonable risks
posed by commercial chemicals that are not
regulated as drugs, food additives, cosmetics or
pesticides to control chemicals whose presence can
cause severe health and environmental damage.
Grants:
* Section 28 Toxic Substance Enforcement Program
Section 10 R & D, Pilot Projects & Special
Studies
Indian Radon Program Development
SARA Title III Innovative Technical
Assistance for Chemical Emergency
Planning
Section 404(g) Lead (Pb) Model State Program
Development
* Pertains only to states (does not inc
II-3
-------
INDOOR RADON ABATEMENT ACT
(IRRA) :
(An Amendment to TSCA)
Major Objective: To render the air within buildings in the
U.S. as free of radon as the ambient air outside of
buildings.
Grants:
* section 306 State Radon Program
Development and Implementation
TSCA Section 10 R & D, Pilot Projects & Special Studies
Indian Radon Programs
*Pertains only to states.
FEDERAL INSECTICIDE, FUNGICIDE, AND
(FIFRA)
RODENTICIDE ACT
Major Objective: To regulate the sale and use of pesticides
to ensure the least risk possible to human health and
the environment from pesticides.
Grants:
Section 23 (a) (1)
Section 20
Pesticide Enforcement Program
Development and Implementation
including:
Endangered Species
Pesticides in Groundwater
Worker Protection & Safety
R & D, Pilot Projects & Special
Studies
Tl-4
-------
RESOURCE CONSERVATION AND
RECOVERY ACT
(RCRA)
Major Objective: To protect human health and the environment
from pollution resulting from the disposal of solid and
hazardous waste and the leaking of underground storage tanks.
Grants:
* Section 3011 Hazardous Waste Management Program
Development and Implementation
* Section 9004 Underground Storage Tank Program
Development and Implementation
Section 8001 R & D, Pilot Projects & Special
Studies
Solid Waste
Hazardous Waste
Underground Storage Tanks
* Not currently available to Tribes.
COMPREHENSIVE ENVIRONMENTAL
RESPONSE COMPENSATION AND
LIABILITY ACT
(CERCLA - SUPERFUND)
Major Objective: To create a tax on the chemical and
petroleum industries to support a trust fund to clean up
abandoned or uncontrolled hazardous waste sites.
Grants:
* Section 104(d) Core Superfund Program and Response
Activity
Section 311 R & D, Pilot Projects & Special
Studies
*Requires EPA approval of Tribal eligibility application for
financial assistance
II-5
-------
SUPERFUND AMENDMENTS AND
REAUTHORIZATION ACT (SARA)
TITLE III: EMERGENCY PLANNING AND
THE COMMUNITY RIGHT-TO-KNOW ACT
Major Objectives: To prepare local communities for
emergencies arising from spills and releases of hazardous
materials.
Grants:
Section 305(a) Training Grants for Chemical Emergency
Planning & Response
TSCA Section 10 SARA Tile III Innovative Technical
Assistance Grants for Chemical Emergency
Planning
Funding available on a limited basis through Federal Emergency
Management Agency (FEMA)
INDIAN ENVIRONMENTAL GENERAL
ASSISTANCE ACT
Major Objective: To provide funding for tribes to build
tribal capacity to plan, develop and establish environmental
protection programs.
GRANTS AWARDED UNDER THIS ACT WILL BE SIMILAR TO THE
MULTI-MEDIA ASSISTANCE WHICH EPA AWARDED IN FY91-93.
REGULATIONS FOR IMPLEMENTING THIS ACT WERE PUBLISHED IN
DECEMBER 1993.
THIS ACT ALLOWS FOR:
Congress can appropriate up to $15M per year.
- No assistance granted shall be for less than $75,000.
Eligible recipients are Federally recognized tribes or
consortia of two or more eligible tribes.
II-6
-------
POLLUTION PREVENTION ACT
Major Objective: To prevent or reduce pollution at the source
whenever possible (i.e. source reduction, recycling, treatment
to minimize human and environmental exposure).
Grants:
Section 6005
Pollution Prevention Incentives for States
(PPIS) (includes state universities and
all federally recognized Indian Tribes)
Also CWA-Section 104(b)(3); SDWA-Section 1442(b)(3); RCRA-
Section 8001; CAA-Section 103(b)(3); TSCA-
Section 10(a); FIFRA-Section 20(a);
CERCLA-Section 111(c)(10)
NATIONAL ENVIRONMENTAL EDUCATION ACT
Major Objective: To support the design and implementation
environmental education programs that enhance critical
thinking and problem solving skills to ensure informed
responsible decisions are made to protect the environment.
of
Grants:
Section 6 Environmental Education Grant Program
II-7
-------
ENVIRONMENTAL JUSTICE THROUGH POLLUTION PREVENTION (EJP2)
Major Objective: To provide financial assistance to community
groups and tribal governments for projects that address
environmental justice and use pollution prevention
activities as the proposed solution.
Grants:
Multi statutes can fund these efforts [i.e. CWA-Section
104(b)(3); SDWA- Section 1442(b)(3); RCRA-Section 8001(a);
CAA-Section 103(b)(3); TSCA-Section 10(a); FIFRA-Section
20(a); CERCLA-Section 111(c)(10)]
ENVIRONMENTAL JUSTICE SMALL GRANTS PROGRAM.
Major Objective: To provide financial assistance to small
community groups and tribal governments to support
projects to design, demonstrate and disseminate practices,
methods or techniques related to environmental justice.
Grants:
Multi statutes can fund these efforts [i.e. CWA-Section
104(b)(3); SDWA-Section 1442(b)(3); RCRA-Section 8001(a); CAA-
Section 103(b)(3); TSCA-Section 10(a); FIFRA-Section 20(a);
CERCLA-Section lll(c)(10)]
II-8
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC I 6 1994
OFFICE OF
ENFORCEMENTAND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Publication of Regulation Simplifying EPA's
Process for Qualifying Indian/Tribes for Program
Approval
FROM: Richard E. Sandersq
Director
Office of Federal
TO: Addressees
iviti
The regulation designed to simplify EPA's process for
qualifying Indian tribes for program approval (the so-called
"treatment-as-a-state" or TAS regulation) was published in the
Federal Register on December 14, 1994. Copies of the regulation
and a summary thereof are attached. We request that the Regional
Indian Program Coordinators transmit copies to the tribes in
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 the culmination of an effort which began in 1992
when an intra-agency workgroup determined that the process for
qualifying Indian tribes for financial assistance and program
authorization was burdensome and unnecessarily complex. This new
process should make it .easier for tribes to obtain EPA approval
to assume the 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 now
been transferred to the American Indian Environmental Office
within the Office of Water. It also fulfills our commitment to
Bob Perciasepe, 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.
IT-9
-------
' My sincere appreciation to Marshall Cain, who led the
effort, and to all of you who worked so diligently on these
regulations over an extended period of tine.
Addressees:
Workgroup Representatives
Agency steering Committee Representatives
Regional Indian Program Coordinators
Regional Indian Law Attorneys Workgroup
Headquarters Indian Program Coordinators
Federal Inter-Agency Indian Discussion Group
American Indian Environmental Office
Tribal operations Committee
Office of Congressional and Legislative Affairs (Martha Wofford)
Attachments
TI-10
-------
SUMMARY
"Treataent-as-a-state" Regulation
U.S. Environmental Protection Agency
The Final Rule under the Clean Water and Safe Drinking Water
Acts is designed to simplify EPA's process for qualifying Indian
tribes 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 to be burdensome and
offensive to tribes.
Background
The Clean Water, Safe Drinking Water, and Clean Air Acts
authorize EPA to treat Indian tribes as states for purposes of
certain types of grant awards and program authorization. The
only statutory requirements are that a tribe be federally
recognized, have a governing body carrying out substantial duties
and powers, and have adequate jurisdiction and capability to
carry out the proposed activities. The Agency has promulgated
regulations for implementing this authority under the Water Acts
and has proposed regulations under the Air Acts.
Changes to Existing Process
i
A. Elimination of separate "TAS" approval
None of the statutes compel the use of a formal TAS or other
prequalification process separate from approval of the request
for a grant or program approval. However, the Agency initially
chose to implement provisions of the Clean Water and Safe
Drinking Water Acts by establishing a formal pregualification
process under which tribes can seek eligibility under these
statutes. Under the regulation, current regulations would be
amended to eliminate TAS review as a separate step in the
processing of a tribal application for program approval. Under
the new, simplified process, the Agency will ensure compliance
with statutory requirements as an integral part of the process of
reviewing program approval applications.
B. Minimize use of the term "treatment-as-a-state"
The term "treatment-as-a-state" is somewhat misleading and
may be offensive to tribes. To the extent possible, the rule
amends existing regulations so as to discontinue use of the term
"treatment as a state;" however, since this phrase is included
in several statutes, its continued use is sometimes necessary.
n-ll
-------
Establish uniform requirements for "r ecooniti on" and
requirements under each statute
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
shoving under each statute. Moreover, the fact that a tribe has
met the "recognition" or "governmental functions" requirements
under the Clean Air Act or either of the Water Acts will
establish that it meets those requirements under all three
statutes.
p. Eliminate unnecessary and/or duolicative requirements
and expedite the nrocess regarding the establishment of tribal
•jurisdiction
Because a tribe may have jurisdiction over; and capability
to carry out, certain activities fe.a. . protection of the quality
of a particular lake for the Clean Lakes program under the Clean
Water Act) , but not others fe.a.. waste management on a portion
of the reservation far removed from any lakes) , the new process
does not foreclose the Agency from making a specific
determination that a tribe has adequate jurisdictional authority
and administrative and programmatic capability before it approves
each tribal program.
The portion of existing regulations on jurisdictional
determination under which governments comment 'on tribal
jurisdiction will be altered under the regulation:
(l) for approvals of all Drinking Water regulatory programs
and most Clean Water programs under existing regulations, EPA
will not authorize a state to operate a program without
determining that the state has adequate authority to carry out
those actions required to run the program. This applies also to
a tribe seeking approval, and ensures that a close analysis of
the legal basis of a tribe's jurisdiction will occur before
program authorization. Accordingly, a separate TAS
jurisdictional review is not needed to verify that a tribe meets
the statutory requirement, and is therefore 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;
(2) for the Water Quality Standards program, there is no
review of tribal authority as part of the program approval
process. Accordingly, for that program, a comment process will
be retained. However, the Agency emphasizes that comments must
be offered in a timely manner and specifies that where no timely
comments are offered, the Agency will conclude that there is no
objection to the tribal applicant's jurisdictional assertion.
11-12
-------
EPA will no longer be required, by regulation, to consult
with' the Department of the Interior although it 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 decision as to tribal
jurisdictional authority.
To encourage the expeditious resolution of tribal
jurisdictional matters, the rule notes that once the Agency 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. 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.
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 the application addressing
those land areas where tribal authority has not been
satisfactorily established.
E. Establish consistency among programs and flexibility in
requirements for establishing tribal capability
EPA will continue to make a. separate determination of tribal
capability for each program for which it approves a tribe.
However, the Safe Drinking Water Act and Clean Water Act
regulations will 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.
11-13
-------
11-14
-------
Federal Register / Vol. 59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations 64339
Intergovernmental relations. Nitrogen
Dioxide, Ozone, Reporting and
. recorflceeping requirements,' Volatile •
(Hjsnic compounds. Note: Incorporation
by reference of the State Implementation
Plan for toe- State of California was
approved by the director of the Federal
Register on July 1,1982.
Dried: November 28. 1994.
Acting Regional Administrator
Put 52, chapter I. title 40 of the Code
oJFaderahReguUtions is amended as
fellows:'
P ART S2-{ AMENDED]
Lite authority citation fox part 52
continues to teed as fallows:
Subpart r California
i Section 52J20 is amended by
adding paragraphs (c) (188)(iJ{DJU)
(lM)(i)tAM2) to read as follows:
Itt&O kteMMcaOonofptaa
(e) •• • •
(188) • « •
0) • ' •
(DP • • - .....
(2) Rule 103. adopted on June 4. 1981.
(194) ' • •
(!)*••
(A) •> • -
(2) Rule 58. adopted on September IS.
1992.
IfHDoc. 04-30742 Filed 12-13-W; 8*5 am)
mm coon
40 CFR Parts 123, 124, 131, 142, 144,
145,233, and 601
[FW.-511MJ
MN2020-AA20 • '
Mian Tribes; Eligibility far Program
Authorization
MttCY: Environmental Protection
Agency (EPA).
KM*; Final rule. .
Drinking Water Act (SDWA). and the
Clean Air Act (CAA). All three statutes
specify that in order to receive such
treatment, a tribe must be federally
recognized and pomess a governing
body carrying out substantial duties and
powers, m addition, each requires that
a tribe possess civil regulatory
jurisdiction to carry out the functions it
seeks to exercise. Finally, all three
require that a tribe be reasonably
expected to be capable of carrying out
The Agency initially chose to ..
implanmnf provisions of the dean
Water and Safe Drinking Water Acts
which tribes can seek
these statutes. This ptvpHiuMuw
' process has hi the past bean refcnad to
as approval for "treatment a* a state"
(TASTl, Tribes that obtain sodi .
approval then become eligible to apply
for certain gnats and program approvals
available to states.
The Agency's TAS" pnqualVIcation
process has proven to be burdensome.
time-cmvniming and oflgggj veto tribes.
Accordingly. EPA has adopted a new
policy to improve and simplify the
process and this regulation implements
the new policy. To the extern possible.
the Agency plans to use the same
process la future regular!oos mmn&ng
*- of tribal "'
As of the effective date of Otis'
regulation, it is the intent of EPA to
follow the new process in' making
determinations on tribal eligibility far
program authorization. With respect to
pending "FAS" applications for
program authorization, the Agency will
utioB the information contained hi
such applications to determine tribes*
eligfbJHty and tribes win be requested to
supplement such applications only to
the extant nttuMtarf to determine
i eligibility
B7ECT1VE DATE: December 14.1994. .
KM RimHEn MFOmiATON CONTACT: C
Marshall Cain. Office of Federal
Activities (2251). Environmental
Protection Agency, 401M Street SWn
Washington, DC 20460. (2JJ2J 280-8792.
: This action amends -
addressing the role of Indian
tribes so as to nuke it easier for tribes
to obtain EPA approval to assume the
nla Congress envisioned for them under
certain environmental statutes. Three
EPA regulatory statutes address the
tribal rale specifically by authorizing
EPA to treat tribes in a manner """i'flr
to that in wbicb.it treats states: The
Clean Water Act (CWA). the Safe
lackgr
id
In order to simpUfy and streamline
the process of assessing tribal eligibility
for program authorization while still
ensuring full compliance with all
applicable statutes, on March 23.1994.
EPA published in the Federal Register
(59 PR 13819) a notice of proposed
rulemaking to amend regulations
governing the process whereby Indian
tribes become eligible to assume a rale
in implamenting the environmental
statutes on tribal land comparable U
rolestates play on state land.
oni
omparable to the
EP A r
ixes that tribes are
sovereign nations with* unique legal
status and a relationship to the federal
government that is significantly
difiarent than that of states. EPA
believes that Congress did not intend to
altar this when it authorized treatment
of tribes "as States;- rather, the purpose
was to reflect an intent that. Insofar as
possible, tribes should assume a role in
implementing-the environmental'.
buui ramnangble to the
role states play on state Una. .
The proposals set foxth in the
proposed rule involved the following:
1. EBmrnation of TAS" review aTt
separate step in the process. No statute
compels tiw use of a formal *TASn or
other prequaHflcation process separate
Bom approval of the underlying request
for program approval. The only
no^dremenU imposed by statute are
-that, to be eligible far program
authorization, a tribe must be federally
rnnognfTed. have a governing body '
carrying out-substantial duties and
powers, and have adequate jurisdiction
and capability to cany oat the proposed
activities. Thus, EPA may authorize a
designating the tribe as "SjgflSe far
TAS.-so long as the Agency establishes
thnt the tribn meats fti* a dtaenta. formal
pra^^^^TrAŁl25t?ovl1'
regulations to eUmtnate "TAS" review
„ Under the new. simpMed
process, the Agency wfll ensure
conpUanee with statutory raoujnmanta'
•senfattagralI part of the process of
reviewing program approval
applications. To the extant that tins rule
' Octswttlftfaa]
or
nWe
of previous rub
language herein shall be controlling.
2. Discontinuanoe of oaa of tfw term
*%ealmentasastata.MTomeextant
possible, the rule amends existing
JBjIpmBtOP^ atO tt8 tO QlatOOOiUOQ0 Qftfr OI
tiia toon "treatment ass>state"; ••*-.
however, since the phrase la indudad in
several statutes, to continued use may
''••HI....,, fit M , '
WCQIfl^XQflUii-
tribe typically estabS
showing its Bhutan on the list of •-.
federally tBwyit^j Tribes pofalished
by. me Secretary of the mtarior in the'
Federal Register. A tribe estabuV
-------
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 Conn 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. Sate Drinking Water and dean
Air Acts. The new process will reflect
th<« by establishing identical
requirements for «""H"g 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.
• (e.g., protection of the quality of a
particular lake for the Clean Lakes
program under the Clean Water Act).
but not others (e&, 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
authority »"^ administrative and
programmatic capability before it
approves each tribal program. This will
ensure that tribes meet the stat
rqufe
its under both statutes.
To facilitate review of tribal
applications. EPA will request that • •
till M! applications i"f""" ERA'whether
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 beenrederaUy
recognized by simply «*•*$"»•<«» its - -
prognm.*uthorizatton application that
it appears on the list of federally
recognized tribes that the Secretary of
the Interior publishes periodically in the
Federal P^g****"" If the tribe notifies
EPA uiat it hasbeen recognised but ...
does not appear on this list because-the
list has not been updated. EPA win seek
to verify the tact of recognition with the
Department of the Interior. •
Atribe that has not yet made its
initial "governmental* showing can do
so by certifying that it has a government
tribe will be able to make the i
certification if it is currently performing
* PQ^ff^^^^y^"^ • Ill&CuQOft to BPOOottRft IDft •
public health, safety, and welfare of Us
population. Examples of such functions'
include, but are not limited to. levying -
taxes, acquiring land byjaxerdse of the
power of eminenroonaiD. aod •'
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 *i""ii *fyt 4oci"iM"1**
unless requested to da so by the Agency.
4. Simplified jmimMfOraaX «i«tytif, .
A tribe may have jurisdiction over, and
. capability to carry out. certain activities
iquir
.Congress!*
tablished
as prerequisites ttr tribal eligibility for
TKa nrotim frf
-. •••« jrw» *•!*•• ^*»
determinatioQ under which
flovemmeots cooBment ^BI tone*
jurisdiction will be substantially altered
under this Rule. Then changes an .
outlined below.
For approvals of all Drinking Water
regulatory programs and most-Clean
Water programs under •«t«'i"fl
regulations. EPA will not authorise a
state to oerate a proram without
state
tn'fffry rait thoa« mr+irwt*
required to run the program. See eg. 40
CFR 142.10 (PWS). 14&24 (UIQ. This
approval, and ensures that a i
analysis of the legal basis of a tribe's
jurisdiction will occur before program
•ittKjtrt im\ ton. •
Accordingly, a separate "TAS"
jurisdictional review is not needed to
verify that a tribe meeta the statutory
jurisdictional requirement and.
therefore, will be eliminated for all
; under the Safe Drinking Water
Act. and for the dean Water Act's 404
and Nioitss programs. This change will
!«•»• t\nt ttftfrt «mly of eliminating
ouoJicativo reouiremeots. In no case can
the Agency has received full and
adequate input nrmcnming the scope
mmA extent of the tribe's jurisdiction.
Moreover. EPA will expect each tribe
L approval to provioe a
""TT"m 1*"^'^*" approval vo piwu
precise aeeaiption 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 a* part
of the standards approval process under
section 303(c) of the dean Water Act,
Accordingly, far that jimgram, •
However, the Agency wishes.to cterify
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 then is no objection to
the tribal applicant's jurisdictional
assertion. Moreover, to raise a
fltr+ina rlaim »
comment must clearly explain the
substance, basis, and extent of its
objections. Finally, when questions are
raised a
smin
; 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 not
required to do so. Henceforth. EPA will
no longer be required, by regulation, to
consult with the Department of the
ulterior. •• • •*• • • .
Finally, the Agency notes that certain
disputes **""<^»"i
-------
Federal Register / Vol. 59. No. 239 / Wednesday, December 14. 1994 / Rules and Regulations 64341
(April lit 1989) (Clean Water Act -
Gnats): 54 FR 39097.39102 (September
12.1989) (Clean Water Act Water
Quality Standards); 58 FR8171.8176 .
February 11.1993) (Clean Water Act
action 404): 58 FR 67966.67972 (Clean
Water Act NPDES) (December 22.1993).
5. More flexible requirements to
Mt*H'«h capability. EPA must continue
to make a separate determination of
tribal capability for each program for
which it approves a tribe. However, the
Sib Drinking Water Act, WaterQuality
Standards, Section 404, and NPDES
nguktions will be amended to conform
to the CWA grant regulations, which do
not specifically prescribe the material a
tribe must submit to establish ,
• opability. Ordinarily, the inquiry EPA
will make into the capability of any , "
ipphcant. tribal or state, for a grant or
program approval will be sufficient to
Ida the Agency to determine whether
i tribe meets the statutory capability
requirement See. e.g.. 40 CFR part 31
(grant regulations apph'cable to states
md tribes); 40 CFR 142.3 (Public Water
System primary enforcement
mponsibitity requirements at parts 141.
142 apply to tribes); §145.1(h) '
(Underground Infection Control ' .
requirements of parts 124.144.145. and
146 that apply to states generally apply
to tribe*).
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
bethh programs administered by the
tribe:
(3) The mechanisms in ply* for
anying out the executive, legislative
nd judicial functions of the tribal
jowmnent; . . ..
(4) The relationship between
updated entities and the administrative
•gfflcy of the tribal government which
win be the regulator; and
• (5) The technical and "administrative
.c^ibmu-esofthestafftoadmihistBr;
ud manage the program.
'
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
su
stantial experience
•kkof such
will not
Anmnu
y, so long as it shows that it has
W necessary management and
ttdfflicaiand related skills or subedits a
m describing how.it will acquire
.
jn» notice of proposed rulemaking-
""fled public comments on the ' '
One commenter did not express support
or opposition but urged. EPAip continue
to stress that tribes should.en^ct water-
quality programs simile to current, state
water quanty 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 ffw ?* i"**1 * 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 alrenvironmental matters
within reservation boundaries, without
F0QtufliDft tzio0ft to o»nnopsf^r»tfB
inherent authority.
Aesponse.-EPA
the
con
-i.. V~ ~-~ ITTO^.1 ». . '-_^^.i~- —... •
u*A recognizes mat certain tribes may ca
assertions in.any ptograms.'in Biiness'-
B9US ]
be useful to the Agency
in
Continent: EPA could further, simplify
the TAS process"by providing that, --
when EPA reviews a new TAS _
application for a tribe that has already
obtained TAS approval for one program.
EPA wiU rely on the jurisdictions! •
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
.statement,- . .••-?•-•'. :y'-':. >
Aesponse: EPA agrees with the "-•-. .
conunenter-that this would simplify the •
process; However EPA believes that it
should kn^k in flu first instance to <**f'h
tribal applicant's views as to its own
jurisdi
.Thus a tribe tharbelieves It
i cuzn|m
management of reaervation
rnntrimr^m^nt^ Hammvar, EPA Anf* net
have the legal authority to expand the
scope of tribal jurisdiction.
Consequently. EPA must continue to
anarna each tribal claim of jurisdiction
in light of appropriate statutory and
the tribe mCacthu adequate muthority
to cany out the functions it proposes to
undertake..
Comment: EPA is to be commended
for eliminating the state opportunity to
•neerrlpni for aUSDWA programs mud ?
fortheQean Water Act Action 4O4 and:
' NPJKS'programs. However, since-tribes
is appropriate to provide more
information tugatntng jurisdiction on a
subsequent application than If provided
on a previous one should be able to do .
so directly, without waiting for EPA to
determine, after it begins processing en
application, that more information is •
needed. EPA believes that under the
current proposal, a tribe that wishes to
use the) proceei described by the -'
incorpoiating the earner jnrisdictional-
assertion into a subsequent application.
m addition, the jurisdictions! '--
approach the Agency has1 determined
the dean Air Act aflows it to follow
diffian substantially fan the approach
it followtnndaruM Water Acts. For this
reason. EPA does notlieneve it would
be apuiun late to estabHsfa a piocen
under which a tribe would assume that
unless advised to the contrary, a
^ader the Clean Air Act would
also be adequate under one of the Water.
Act... ••-.' •: .-•- - •• '
; States siwuld be able to
contained nttribal grant
nt.^A^ttatershouldntt be
*&^mfra?± •' fe -'. •'
niXy to comment on tribal -
jurisdictions! «««*iiinn« regarding Water
Quality Standards. . '- • •
Response: EPA continues to believe"
that it has the legal authority to approve
a tribal Water Quality Standards .
program1 only upon a determination that
the tribe-has adequate authority to
operate mat program,'and that state
tribes. EPA hi
nee
evaluating grant
adequate irlbal 1i
i to tribes, and has
that it is fair/capable of
jurisdiction without
ts irom states. EPA.
.
ft should obCtm-information
trom states i
ling tribal-
applicatfons'for program ay
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64342 Federal Register / VoL 59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations
thei proposed regulatory change* would.
ensure that thl« occurs.
,while
MftfcOaei
nter.
supporting tin intent of tha proposed
revisions, urged that (1) BPA regulations
relating to Section 401 Certification (40
CFR part 121) ViI amended to expressly
indudemdian tribes so as to facilitate •
tribal involvement in the section 401 >
process, to resolve disagreements
between tribes and states and to nsohre
disputes between tribes as well: (2) an
apparent inconsistency lathe definition
of "State" ln$ 12Z2 (which lefenoces
Indian tribes that haveobtatoed
approval of their NPDES program but
not their WQS program) be changed eb
thatwaterqualitystandardssetby • •
I tribes will be protected in .
alts under §5122.44,12CS3
d similar provislonsiand (3) me', .
regulation for to disptite resolution
' niam. 40 CFR 131.7, be revised to
In addition, the recent EPA giiidannB
rnno^ning EPA's implementation of the
NPDES •«"! sludge management
programs with respect to Federal Indian
Reservations (FIRs) spedfiesthat "In
situations where a State is the upstream
NPDES permitting authority ana
downstream FIR Tribal WQS have been
approved by EPA. die State will provide
notice of the preparation of a draft
permit to the affected Tribe pursuant to
CW A sections 401 and 402. Under CVYA
sections 402(bM3)and 40 CFRl24.12(a).
the upstream NPDES state must provide
expressly authorize the use of this
procBss for resolving disputes between-
two or more tribes that Jiave differing '
standards for common bodies of water.
Jtoponsa: (1) EPA believes it is
unMceatary to amend the 401 .
regulations in Part intfaroogbtne
prasent TAS revisions rule in order to
clarify that tribes have the authority to
provide 401 certifications once they
have approved water quality standards
(WQS). It is EPA's position that tribes
dearly have 401 authority ones they
receive approval of their WQS as
specified m 40 GFR 131.4(c).
(2) EPA also does not believe Oat
changes an necessary to tfrf definition
of "State" in 5122A The Intent of
EPA's nguletions was to require the
pennitting authority (whether EPA
authorised NPDES State) to issue
permits which comply with all
applicable water quality
(including WQS approved by EPA fcr SB
Indian tribe). EPA intarpntstts
regulations to requin that all NPDBS'
permits comply with applicable.
EPA approved tribal WQS n«nd
whether the tribe haajT ^m-J.l,
a permitting suthoritjr lor the NPDES
program. EPA'a new
provision in 40 CFR 124JH(c) supports
the tribes' 401 certification authority --
andnedsas follows: ^Aastsasdm40
~^CFR131^. an Indian ^Trrbe that is-:
quali5edfor Treatment asa Stan ibr
a
tificatia
the ActfQeen WateredJ and Suopert
-DofthiapartAThei "" "
• qualified)
- State &>r purposes-of Statac
of.WQS pursuant toseetian40t(a)tUof
final-WDES rule^t 98JR 679B7.
(December 10.1993) <
issuance of the
isstgrn^csntpubttcintenstmsodoittg.
Under CWA section 402(bXB). A0
aQscted Tribe may submit written
* TCO09DID0OfleMiOQeT vO 1B49 DflflDHuflC '"
• State and'EPA. and the Cdhue to accept
the no
Bndations and die
for doing so. EPA can object to the* •
upstream State permit when EPA-
believes that the reasons lor refecting
•the ncommendarions are inadequate."
Therefore, this guidance nflects EPA's
general view that applicable tribe! WQS
are to be reflected m ell-water quattt]
btiod NPDES permit !<"?**• 1
Part 122-124 regulations refer to WQS
of a "State," mis also refers to Indian
tribes with EPA approved WQS.
(3) EPA previously nsponded to
comments regarding the scope of the.
dis
on the
t niinHMi of prograrnsi it
would not appbr expressly to wellhead
aquifer demonstration prog
therSaM Drinking Wi
Agency should consid
Act The •
seriously the-
inrhision-of these importantpiogranis
under the new ngulatton as wett:'"- -
. AesponcK EPA does not believe that
• "it would ve appropriate tixexpand the
scope of the regulation at this stage of
its development However, as pointed
out previously hi the Summarvof this
regulation, to the extent possible, the -
Agency plans to use the new process in
future regulations regarding
rule allowmg-tribee to establish WQS
(56 FR 64876. December 12,1991). At
that time. OW commented tint the rule
was written hi this manner because
Section 518 of the Clean Water Act
specified that a dispute resolution
meehanlsm be enveloped toneolve
disputes arising between a tribe and a
state. OW further commented that EPA
i the requirements that the State
I pnWlQtt lOsT pCQtflCtlQfl Of
downstream standards in $ 131.10(b) of
the WQS Regulation, supported by a 25
ry of informal negotiation of
.provides
sufBcfsnt basis for resolving disputes
between two states or two tribes. SB FR
64866-64889. Further ronrnients on mis
iasa* an beyondthe ecopeofthfs rale
and. therefore. EPA declines to revisit ft
-Comment: Although the ]
detenninanonsof
Condesion
leliglbility.
. based on the
*Accoidin
repeived and the analysis of .those
comments as set forth above. EPA
believes that the proposed regulatory
fa tho :
Federal Registsr on March 23. 1994 (59
FR 13819) should be adopted as a final
rale as discussed above and set forth
below. --'-* ' "•; --.:
Execvnve Order 12SM. ...
Order 12666. 158 FR
51735 (October V1993H the Agency
miutdstenniriewhetherthe regulatory
action is MsfgnlficantM and therefore -
subject to OMB review and the .
requirements of the Executive Order.
The Order defines "significant - .
regulatory action" u.one'Qiat is likely
to result in a .rule that may:
(1) Have an *"""^ ^ffy! on *Ki* •
economy of S100 million or more or
adversely affect in a material way the
productivity, competition, tabs, me
environment, public health or safety, or
State. l«^tl or *rfMil governments or
commuouieei
(2) Craete a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency:
(3) Materiallvaberdie budgetary
&aDDflCa> Ol flOO3U0DflBHs)« ffs^BBtat* ttet8eT
or iott i programs or the rights and
oliligallmis of recipients thereor; or
(4) Raise novel legal
A^Mv *n^A
set forth in the Executive I
ft has been determined that this rule
is not a "significant ngulatory action"
12866 auUs thenfoce not aubject to
OMB review. - - .-..• - . • .
Punuant«psection«OS(b) of the-RFA.
rule wiH
menly nvises exfaong-ptocedural" -
requirements ferhidtairtrfhesJy •
malmg them suupkrand leas <-
burdensome; Indian tribes an not
aU^ntttiea under thra
-------
Federal Register / Vol. 59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations 64343
Paperwork Reduction Act
Hie proposed regulations contain no
now 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 etseq.
List of Subjects
40 CFK Part 123
Administrative practice and '
procedure. Confidential business
Information; Environmental protection,
Hazardous substances. Indian lands. *
Intergovernmental relations. Penalties.
Reporting and recordkeeping
requirements. Waste treatment and '
disposal Water pollution control. Water
wpply. •
4QCFR Part 124
'Administrative practice and
procedure. Air pollution control,
Environmental protection. Hazardous
, Indian lands. Reporting and
, .
'ncordkeeping requirements. Sewage
disposal. Waste treatment and disposal.
Water pollution control. Water supply
tOCFR Part 131
Environmental protection. Reporting
md ncordkeeping requirements. Water
pollution control.
10CFRPartl42
Environmental protection.
Administrative practice and procedure.
Chemicals, Indians— lands. Radiation
protection. Reporting and recordkeeping
requirements. Water supply
WCFR Part 144
'Environmental protection.
Administrative practice and procedure,
Confidential business information,
Hazardous waste. Indians— lands,
Importing and recordkeeping
requirements. Surety bonds. Water
wpply.
«CFR Port 145
Environmental protection. Indians—
loos. Intergovernmental relations.
Foirties, Reporting and recordkeeping
WfUrements. Water supply.
QCTR Part 233'
Environmental protection.'
Mmiuttlialive practice and procedure,
taagoveramental relations. Penalties.
Penalties, Reporting and recordkeeping
requirements. Sewage disposal.
Dated: November 18.1994.
FndHancea. •
ActingAdministrator
For the reasons set forth hi the
preamble. 40 CFR parts 123.124.131.
142.144.145.233. and 501 are
amended as follows:
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for pert 123
continues to read as follows:- .,
Attberity: Oefen Water Act; 33 U.&C. 1251
etas* • ';'"•'••:> ..
$123.1 [Amended].
2. Section 123.1(h) is amended by
removing the phrase "treated as a
State."
$12331 (Amended]
3. hi S 127.21 paragraph (aHD is
amended by revising the phrase
"eligible for treatment as a state hi
accordance with § 12333(e)" to read "hi
accordance with S 12333(b)".
4. In $123.21 paragraph (b)(2) is
amended by removing the phrase "tar
treatment as a State" both times they
appear and by revising the text
"S 12333(e)" to read "S 12333(b)~
5. hi §12332 paragraph (g)4s
amended by removing the phrase "for
treatment as a State" and "by revising the
text "S 12333(e)" to read ~$ 12333(b)".
$12331 (Amended]
6. The heading of $ 12331 is
by revising the phrase "for treatment of
Indian Tribes as States" to read "for
and recordkeeping
V Water pollution control
those documents" and by revising the"
phrase "support the Tribe's assertion" -
to rod "the Tribe believes are relevant
to its assertion."
13. hi § 123.32 paragraph (d)
introductory text is amended by revising
the .phrase "The statement shall •"
include" to read The statement should
include."-
14. hi $ 123.32 paragraph (d)(l) is
amended by revising the words
"including, but not limited to." to read
"which may include."
15. hi $ 12332 paragraph (e) is
amended by revising the phrase "a
Tribal request for treatment as a State"
tojead-aTribe'religibility.-
16. In § 12X32 paragraph (fj is revised
to read as follows: .' .
$12332 RequestbyanlmflanTrlbefora
i of eeoJoMty.
idad
eligibility of Indian Tribes."
7. In $123.31 paragraph (a) is
amended by removing the .phrase "a
State for purposes of making the Tribe."
8. In § 12331 paragraph (a)(4) is
amended by removing- all language
following "in a """Trrtmritti*"* with
the terms and purposes of the Act and
applicable regulations, of an effective
NPOES p**?*^* program." •
(0 If the Administrator or his or her
delegates has previously determined
that a Tribe has met the prerequisites
that make it eligible to assume^ role
similar to that of a state as provided by
statute under the Safe Drinking Water
Act. the dean Water Act. or the Clean
Air Act, then mat Tribe need provide.
only that information unique to *^M>
NPDES program which is requested by
the
Administrator.
$12333,[Amended] ' • '- -•
17. The beading of S12333-1S '•
amended by removing the phrase "for
treatmentes-eState.** • -•
18. hi $ 12333 paragraph (a) is
amended by removing the.phrase "for
treatment as e State." -. •
ia m $ 12333 paragraphs (b)4c). (d).
and (e)-are removed end paragraph (f) is
redesignated ea paragraph fb).
PART 124—PROCEDURES FOR
DECtStONMAMNG '
1. The authority citation for part 124
continues to'reed as follows
Racovery Act. 42 UAC 6901 at MO.; Safe
DrmUng Water Act. 42 U&C 300(0 •*«•«.,
CUu Water Act. 33 USŁ 1251
dean Air Act. 42 OAC 7401 etseo.
Administrative practice and >-:.^ =.- .
toOBdarJB,. Intergovernmental relations, '
S12132
9. The heading of § 123.32 is amended
by removing "for treatment as a State."
ia hi $123^2 the introductory text is
amended by removing the phrase "for •
treatment as a State."
11. hi § 12332 paragraph (b)
introductory text is amended'
the words "This statement shall" to i
"This statement should." . • * • •
12. In S 123.32 paragraph (c) is
amended by revising the phrase "a copy
of all documents" to read "copies of
(Amendeol
2. hi S 124i the definition of "State"
is amended i'v '•••MM* *V» phrase "an
mdian Tribe treated es e State" to read
"an uidian Tribe that meets the ..
statutory criteria which authorize EPA
to treat me Tribe ma manner similar to
that )n which it treats a State"
f 12441. '(Amended] - •
3. hi 5 124.51i>aragraph1c) is
amended by revUng the phrase "is
qualified for trtatnwntttta State" to
11-19
-------
«A344 Federal Register / VoL 59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations
read "meets the statutory criteria which
authorize EPA to treat the Tribe in a
manner similar to that IB which it treats
a State" and by revising the phrase
"likewise qualified fos treatment as a
State" to read "likewiMMpulified for
and/or resolutions which support -die-
Tribe's assertion of authority: and".
11. Section 131.8(bl(3)(iii) is removed;
12. In $ 131.8 paragAph (bX3Miv) is
redesigned as (bX3Hiii). '
13. In S1314 paragraph (bX4)
PART 131—WATER QUALITY
STANDARDS
1. The authority citation for part 131
continues to read as follows:
Aotfaoritr-.U UAC1251 etss*
2. In S1314 paragraph Q) to amended
by revising the phrase "qualify for
treatment as States for purposes of-water
introductory text is amended by revising
the word "shall" to reed "should".
14. In $ 1314 paragraph (bX4)G) to
amended by revismg the phrase . •
"including, but not limited to" to read
"which may include". - "- • .
15. In §W14 paragraph (bXS) is. -
amended by revising the phrase
•bequest for treatment as a State." to
read "application".
16. In $1314 paragraph (bX6) is
amended by revising the phrase- "
"qualified for treatment as a State" to
quality standards" to read*"tobe eligible reed "qualified for eligibility or .
for purposes of a water quality "treatment oa state'"and by lemoving
standards program". :•.'--. the second occurrence of the phrase
"treatment as a State".
17, m $ 1314 paragraphs (c)
introductory text (cKD md (cK2)
ifffr^oouctOiTy iffTfl uv UBflQOaKL o3r
removing the words "for treatment as a
State". "• • '
18. In $1314 paragraph (cX4) is
amended by revising the phrase "after
consultation wtdi the Secretary of the
Interior.'or his designee" to read "after
due consideration". ~ '
19. m $1314 paragraph: (cXS) is
amended by revMng the words "has
qualified to be treated as a State for
§ 142.72. Requlreroenteloe.Tilbal eligibility.
5. TheieadingofS 142.72 is revised
to wad as set forth above, "• ;"
, 6-7 Sectkai 142.72 is amended by
nvising the intraductoiy. text and.
paragranh(d) to read as Allows.: -
1142.72
The Administrator is authorized to
treat an Indian Tribe as eligible to apply
for primary enforcement responsibility
for the Public Water System Program if
it meets the following criteria: .
(d) The mdian Tribe is reasonably.
[Amended]
3. In 5131.4 paragraph (c) is amended
by revising the phrase "qualifies for
treatment as a State" in both places mat
it appears to read "is eligible to the
same extent as a State"
§131.7 [Amended]
4. In $ 131.7 paragraph 0>X2) is
amended by revising tie phrase-
"qualifies to be treated as a State" to
raad "is eligible to die same extent as a
Steto". - . -
of $142.76 is i
idlrf
[Amended]
5. The heading of $ 1314 to amended
by revising the phrase "to be treated a»
States for purposes of water quality
standards" to read "to administer a
water quality standards program".
6. fa $ 1314 paragraph (a)
introductory text is amended by revtomg
the phrase "treat an Indian TOos-asr*.
•State for purposes of the water <
standards program" to read "ao
approve a tribal application IK
purposes of administering a1
quality standards
that the Tribe may initiate that
formulation and adoption of i
quality standards approvable under thto
part" to read "is authorized to
eBective
|142Jt
8. The
by revising the phrase "of treatment as
a State" to read "of eligibility"
9, Section 14Z78 is amended by
. revismg in the introductory texttte.
phrase, "qualifies far treatment aa a State
pursuant to" to read "meats the criteria
of." . ' ' ." '•*
iam $142.70 paragraph (b)
introductory text is amended by revising
the word "shalT toreed "should"
11. nx$ 142.78 pangiapb:(c) U
amended by revising the word "aU~ to
resd-thoea" and by revising the phrase
"snpport die Tribe's asserted
jurisdiction" to read "the Tribe believes
are relevant to to assertions regarding
PART142-4MTONALPmUARY
OIHNMMO WATER REGULATIONS
FATON
12. la $ 142.78 paragraph (d)
mtrodudonr textis amended by revismg
the word "shair to read."should"
13i IB $ 14Z78 paragraph (dXl) is
7, In $ 1314 paragjaphM^ .
introductory text to ejnendedby revising
the phrase "for treataatot as states far
purposes of water qoatfty standards" to
read "for
t.The authority citation far part 142
continues to read as follows: • .
Asclerirjr:42U&C30ag,aoOrl.30aft-z.'
aoorx^onx^ 3oo«4. soora. 300K sad
30OKO.
quality standards program^ -.
8. In $ 131.8 paragraph (bX2>- .
introductory text is •mended by revising
the weird "soaU" to reed "should** •
9. In $ 1314 paragraph M3) -> .
intinyfactpfy tffKt If •maiiA^jr
the word "shall" to reaoVaho
ia m^ 131.8 paragraph (bXaXiQ jb
2. m S 142i the definition, of "State"
is aniended by revising the phrase "or .
an Indian Tribe treated as a State/* to
rfflli "ffT TIB •l«fl«M* |milMi trfha"
14. m $14Z7ttpangnph (e) to -
AfHBma^al(MlV •••ieAfjej HMi •A»a» **** <«••» ,
Drmkin. Water Act. me (3ean Water
Act.or.the Clean. Air Act, tfaea that
^^Jfc— '-: JT ^.—M^J^X^ ~*,1M §1 .
inoa neao.provuiB.ODiy mai •
infonnation^miqiMV-tothe Public Water
System jtrognm
-------
Federal Register / VoL 59. No. 239 / Wednesday. December 14. 1994 / Rates and Regulations 64345
16, The beading of $ 142^8 i*
•neaded by removing thephase "far -
tnetmeDias«Siata". "'- ~
.
loendedb^ removing the>wonis "for
treatment ac a State cuhinHtflft puroiant
to §142.76"
18. In $ 142.78 paragraphs ffi). (c) and
(d) are removed and paragraph (e) Is
(h) mnA
n*ismgthelanguage-~ffm«
AifanndttratnrdetemdnesihalaTribe
meats the nqabanents of S J42L72. the
bdi*n Tribe is then eugtbie to
nqoinments of § 142.72 faefegible to
'"' ":
•UECTiOM CONTROL PROGRAM
l.Tfle authority citation Ear part 144
oontiniiea to read as JbDows:
Artkerftr: Łafa Driatiag Water Act «
•U5.C300f atoq; aaaomca CaeiervetinB
nd Raowanr Aft. 42 ULSX1 0902 «t sag.
2. Section 144J is amended by
iddiag the definttioa of" eHgfble bdiaa
tribe" m alphabetical order to read a*
follows:
JMO
Eligible Indian Tribe is a Tribe that
maeu (be statutory requirements
•UUisaad at 42 UAC.
PART 145— STATE 0»CPBOG«C is revised to reed «• eat forA above
1 The heading of { MS^2 is nriaaoV
«>nad«set forth ebove.
5* Saotioa 14S.52 is anMBded by
"»afflgmeintrodoctorytexJend
Pxignph (d) to nad«siaUowa:
't*«t«n Indian Tribe j»eUg1bie 10
Program if it meets the fiaUowing
criteria:
• •• • » *
(dl The Indian Tribe MiMwiaHy
eoopected to be capebk. fai the
mAmiimi * II JIMj. (l'l I 8 I
widi the terms aadporpotes of the Act
aodaliapplicabieregnietians)ea
eflecti ve Uhdeiground lajapliom Gaatmi'
Program. • •
I14&S8 [Anendad] •
7 .The heedTag oT.S 145 J»fat
fay revieng the phraee "of
a State" to read "^of
dedbv revisteg
-«ko«kr .
"mm § 145J6paragraphic)fa
amended by revising ue word "att" to"
teed ^oae." and by Tevisii^ fee phase
"support the Tribe's asserted
turisdiction- to read Ib* Tribe believes
are relevant to its assertions ngardmg
jurisdiction?* • .
11. m $ 14336 puagiapb (d)
introductory text is i
the word "stair to
12. fa $14536 par
amended by revising
~whjcb may include.". ..
. _li fa $ 145J6 paragrap
amended fay revising me phase ~a.
toned "• Tribe's eligibility-.
1Cie § 14&M psngopkO) is
to reed as follows:
(fj If the AdministalcrbM previo
detetmiaed that a Tribe has met the
prempiiattes that make it cligmJe to
- «««I|»IM • TO!» «tnrtl«r tntKa* qf ^ State
as provided by statute under the Sale
Drinkia*, Water Act. the dean Water
Act. ortheCteao Ah- Act. then diet
Tribe aMadptovide only that
infbcmatton unioue to
- mjactton Control prog
.17, fa $ M558 paragraph, (bj. (cj. and
(d) are removed and paragraph (e) is
the A
TribeaMets*thenqidnaeeatsof * - '•
^ 14S^2,the Indian TribeisdMa.
eligible to apply iaT toned "A tribe
that meets &e reqniremeatsof $14&S2
is«Qgfi>le to apply for* ' ~ ~ "
PART233 404 SIAlkPHOGRAM -
REQULATIOM5
1. Thevithodty citation ior part 233
•coatinueatoivadasaoDowK ^ '•••
i-The heedfagof enbpartGof pert
233isnv«iedtois^assetJbrnVebove.
I23XM
3. The heading of fznJBOis revised
to teed as set facOi above. . '..'''
amended by removing the wjords,*%
5. The heading of S23SJ81 iuwised
to read asset forth above.
6. In $23331 meailredactary text is
' byrevismg^ephnee-thatit
ptmwant toSedknOia ar«eAcr to
'
which authorise EPA te beat tneTribe
tivetse Sbte^iof reviilog the word '
"snail" m the hstseBt8neeio«ad.
"should." : .-"-
' T. la S 233.81 pangnpb: (b)_
the word "sbair toned'
• anMdedbyaddiigatAeeadofAe
niayuxdudeacopyofdocnmentssuch
fy t* Tribal copstitntif»B. by >a»e.
support the Tribe's aaaertion of
.
lij imiiliifl
f 14548 lAmendedl
• IS. The heeding of §14Su56 is
amended by removing the phase "far
treatBwnt as estate".
l&ta S^14&58 paragraph (a)ie.
vnaaded l»y nmoving the phraee "far
aineadedbynviciaftfie wonb "request
far treetaeat as a iState" to read
"application".-
eligullttfarbet
-------
:64346 federal Register / VoL 59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations
requirements" and "for ^treatment as a
State.'" - : ; .-'•"'•
123342 (4
14. The heading of $ 233.62 is
amended by removingjbe phrase "for
treatment as a Stated". - '
15. In $233.62 paragraph (a) is .
amended by removing the phrase Tor
treatment as a State".
16. In §233.82 paragraphs (b). (c). (d).
and (e) an removed, v '-; . .•• '.
17. hr§233.62 paragraph (ftis- ',-•-
redesignstad as paragraph (b).
PART MISSTATE SLUDGE :.
MANAGEMENT PROGRAM :
REGULATIONS- ' i : "
. AatWrir/: 33 U&C. 1251 «* cef. '. ^
|SOt.11 [Amended] i'•- '-.
2. In § 501.11 (a)(l) remove r.
f50122
S. The heading of $ 501.22 is amended
by revising the phrase "for treatment of
Indian Tribes as Slates" to reed "for
eligibility of Indian Tribes." '.
6. In §501.22 paragraph (a)
introductory text is amendedby ..
removing the phrase "a State for . • •
purposes of making the Tribe.*"
7. In § 501.22 paragraph (aX4) to
amended by removing the last two
$501.23 (Amended} •• ."- '
8. The heading of §-50123 is amended
by removing the phase "far treatment
as a State". •
a. In §501.23 tb»fotroductory text is
amended by remov&Nj the phnse "fe>
treatment as a Stale.". - • '-• '
- 10, In S 501^3 pexegffmiiHb)- : ; * - - ' - '
introductory text is amended
the word ^shair to reed
- If. In SM1^3 paragraph
amendedliy revising the phrase "a copy
of ail documents" toread "copies oT
ihosr documents" andby«eviaing the'
phrase "support the-Tribe's aseertfbn"
to read "fhe Tribe beileve»aran!evaiit'-
toitsassertioifc"
intrbdubtory^ext i^
the word ?eli1fl*
13, In §501.23 paragraph WHD'ia
amended by revising the words
"including, but not limited to" to read
'•which may include."
14. In § 501-23 paragraph (e)is
amended by revising the phrase **•
Tribal request for treatment as a State**
to read "a Tribe's eligibility." ' '
15. In § 501^3 r*"g*^ph (Q & revised
to read as follows:
1501.33 Request by an kidten Tribe fora
nf ^klbrisSHMw ' *
that a Tribe has met the
tkmtmml
ilstt
.similar to that of a state M provided by
statute under the Safe DrfokmgWatac . .
Act the-Clean Water Act. or the dean
Air Act. then thai Tribe need provide
only tliAt infffrnntiop unloiM fofthft *
,«ludge mftnftgemaot progrun which 4»
the
[Amended].
16. The heading of §501^4 is .
'amended by removing the phrase "for
treatment as a State." -
17. In § 50L24 paragraph (a] is
anumAid hy rummring tM i»in»«4« "ffr '
treatment as a State." ..-.., ••-....
and (e) an removed and paragraph 0U*
«^»«^M^^»aBlL Hkt*
paragnpn |«K.
(PR Dot 94-40M1 F1M li-U-M; MS ami .
DEPARTMENTfeF
SO.CFR Parts 811.679, a
(Docket No. M1241-4341; LO. I !«•«•]
tyof
Fatwrat natiartea hi and Off of
AOBser: Nation
Service Q4MFS). MatfooalXkeaDic and
ACTON: Interim 1995 sp
gmundflsh. Msociated
measures, and closures.
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 BSAL
EFFECTIVE DATE: January 1. 1995. until
the effective date of the final 199S initial
AOORESSES: The preliminary 1995 Stock
rusDimiiniil and Fishery Evaluation
(SAFE) Report may be requested from
the North Pacific Fishery Management
Council. P.O. Box 163136. Anchorage.
AJC 99510, 907-271-2809 ;.-
FOMF(«masilffOfMA7IQN CONTACT-.
Ellen R.VarostNMFSi 907-566-7228
SUfFtŁMBffARYtMron*UTIOai! "'
iesintheBSAIare
governed by Federal regulations {50 CFR
61i:93«ndparts67Sand676))hat -
implement die ; Fishery Management
Pbmfo> the Groundfish Fishery of the
Bering Sea and Aleutian Islands Area
(FMP).TneFMP was prepared by the-
North Pacific Fishery Management •
Council (Countil) and approved by
NMFS under the Magnuson Fishery . -
Conservation and Manajgement Act
The FMP and implementing -
regulations reqrure NMFS. after-
consultation with **** nminHl^ to
specify far each calendar year the total
allowable catch (TAG) for each target'
spederand'-the^othecspecies" category
(§«7SJO(aKa)): Regulations under
S 875JO(aXr)(r) farther require NMFS to
publish **"i iotfaltt r"Mfr comment on •
arnonnts. of.propoeed
ITACsfoT •_
apportion munis
chfPSQaB
lualTACaand
TAG, prohibitea
S 67JL*H(b). and seasonal allowances of
poBodcTAC.1tMi Council, at its
September le^meeting, based on the
stmH^j^f) ffi»i,,ini.. (gfir) aid other
infonnatioji. amoved preliminary
intHalspermcationsforl99S;as
NMFS is publishing
rulaeacttqs)oHhe Federal j
The Co
id its TAG
catches fABCfc
i fraobrl) based oatba
lie biological
dfitationsof biokrtcatand-s
ted for other
MDJC ..
HUMNHim NMF5 latuea- interim J995
initial to^ allowable
. for each category of
specificati
the totaFTMC fat fee required optimum
yield ranged t«o million metric -
too* (n^Bachcofthe Council's. •- ;"'
bycatch allowances for thegcotnid
.fiifaery of the Bering Sea end Aleutiah'
> tslands-management area (BSAft NMFS
11-22
-------
Wednesday
March 23, 1994
r i \
Part III
Environmental
Protection Agency
40 CFR Parts 35 and 130
Indian Tribes: Eligibility of Indian Tribes
for Financial Assistance; Final Rule
a a
11-23
-------
13814 Federal Register / Vol. 59. No. 56 / Wednesday. March 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)
260-8792.
SUPPLEMENTARY INFORMATION: This
preamble is organized according to the
following outline:
1 Introduction
II. Regulations Governing Eligibility of Indian
Tribes
A. The Existing Process
1. Recognition and a Government
2. jurisdiction and Capability
3. Comment Process
4. Subsequent Tribal Applications
B. Workgroup Examination of Process
III. Revisions to the Process in Light of
Statutory Requirements
A. Simplified Determination as To
Recognition and Government
B. Case by Case Review of Jurisdiction ind
Capability
1. Simplified )urisdictional Analysis
2. Capability
IV. Summary of Revised Process
V. Executive Order 12866
VL Regulatory Flexibility Act
VU 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 dean Water Act (CWA). the
Safe Drinking Water Act (SDWA). and
the Clean Air Act (CAA).«
EPA rerognJTns that tribes an
sovereign nations with a unique legal
status and a relationship to the federal
government that is significantly
different than that of states. EPA
believes that Congress did not intend to
alter this when it authorized treatment
of tribes "as States;" rather, the purpose
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-U
(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.J Finally, all three require that
a tribe be reasonably expected to be
capable of carrying out those functions.
The Agency initially chose to
implement provisions of the 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.'
IL 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. 53
FR 37395 (September 26.1988). codified
at 40 CFR parts 35.124.141.142.143.
144.145. and 146: (2) Indian Tribes:
Water Quality Planning and
Management. 54 FR 14353 (April 11.
1989). Comprehensive Construction
GranrRegulation 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.
1 In addition, the Comprehensive Environmental
Response. Compensation, and Lability Act
(CERCLA or "Superfund"). which is primarily a
response, rather than < regulatory statute, has also
been amended to authorize EPA to treat tribal
government! in substantially the seme way it treats
states with respect to selected provisions of the
statute.
> Under the Clean Water Act. the tribe must
propose to carry out functions that "pertain to the
management and protection of water resources
which are held by an Indian tribe, held by the
United Slates in trust far Indians, held by a mtn-b"
ol an Indian tribe if such property interest is subject
to a trust restriction on alienation, or otherwise
within the borders of an Indian reservation." 33
US.C 1377(eXZ(- Under the dean Air Act. "the
functions to be exercised by the Indian tribe (must!
pertain to the management and protection of air
resources within the exterior boundaries of the
reservation or other anas within the tribe's
jurisdiction.- 42 U.S.C. 7601(d)(2MB). Under the
SDWA. the tribe must propose to exercise functions
-within the area of the Tribal Government'*
jurisdiction." 42 U.S.C. 3OOJ-11 (bKlHB).
> By contrail, the provision of Thrift
authorizing EPA to afiord a tribal government
-substantially the same treatment as a State" does
not establish any specific criteria a tribe must meet
to qualify (or such treatment 42 U.S.C 9626. EPA
has established, by regulation, the criteria of
recognition, a government, and jurisdiction, but has
not adopted a formal praqualification process under
CERCLA. See 40 CFR 300.S15(b). The Agency is
developing regulations pertaining to the treatment
of American Indian tribes under the dean Air Act.
11-24
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Federal Register / Vol. 59. No. 56 / Wednesday. March 23. 1994 / Rules and Regulations 13815
Under all of these regulations, before
, 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 first formally qualify for
-treatment as a state." To qualify, a tnbe
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
)unsdictional 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.
HI. 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
program approval. The only
requirements imposed by statute are
that, to be eligible for financial
Ky and/or program
•The Agency defines this to include contiguous
suits, other tribes, and federal land agencies
responsible (or management of lands contiguous to
the reservation. (Amendments to the Water Quality
Standards Regulation that Pertain to Standards on
Indian Reservations: Final Rule. 56 FR M87S.
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.
authorization, a tribe must be federally
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 part 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
11-25
-------
13816 Federal Register / Vol. 59. No. 56 / Wednesday. March 23. 1994 I Rules and Regulations
list has not been updated. EPA will seek tribe meets thestanitory junsdictional
Mst-As!*..-**. assfiSEBijss?'
Department of the Interior.
Atribe that has not yet made its
' ' > 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 nealtn.
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 mai.e 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 tnbal eligibility for
each particular program.
1 Simplified (unsdictional Analysis
1 he 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
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..
53 FR 37395.37402 (September 26.
1988) (SDWA): 54 FR 14353.14355
(April 11.1989) (dean Water Act
Grants): 54 FR 39097.39102 (September
12.1989) (Clean Water Act Water
Quality Standards): 58 FR 8171.8176
(February 11.1993) (dean Water Act
section 404); 58 FR 67966.67972 (Clean
Water Act NPDES) (December 22.1993).
2. Capability
EPA must continue to make a separate
determination of tribal capability for
each program for which it approves a
tribe. However, the Safe Drinking Water
Act. Water Quality Standards, and
section 404 regulations would be
amended to conform to the CWA grant
regulations, which do not specifically
prescribe the material a tribe must
submit to establish capability.
Ordinarily, the inquiry EPA will make
into the capability of any applicant.
tribal or state, for a grant or program
approval would be sufficient to enable
the Agency to determine whether a tribe
meets the statutory capability
requirement See. e^g.. 40 CFR part 31
(grant regulations applicable to states
and tribes); 40 CFR 142J (Public Water
___.__. ity requirements at parts 141,
142 apply to tribes); 145.1(h)
(Underground Injection Control
requirements of parts 124.144.145. and
146 that apply to states generally apply
to tribes).
Nevertheless. EPA may request that
the tribe provide a narrative statement
or other documents showing that the
tribe is capable of administering the
program for which it is seeking
approval In evaluating tribal capability.
EPA will consider, (l) 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.
IT-26
-------
Federal Register / Vol. 59. No. 56 / Wednesday. March 23. 1994 / Rules and Regulations 13817
~
V. Executive Order 12866
OMB has reviewed this action under
tba ions of Executive Order 12886.
VL 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
mkmaking under section S53(a)(2) of
the Administrative Procedure Act (5
US.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).
TO. 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
US.C.3501etseq.
List of Subjects
«CFHPort35
Environmental protection. Air
pollution control. Coastal zone. Grant
programs-environmental protection.
Giant programs-Indians. Hazardous
waste. Indians. Intergovernmental
relations. Pesticides and pests.
Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal. Water pollution
control. Water supply.
40CFH Part 130
Environmental protection. Grant
programs-environmental protection.
Indians-lands. Intergovernmental
relations. Reporting and recordkeeping
requirements, Water pollution control.
Water supply.
Dated: March 10.1994.
Cant M. Browner.
Administrator.
For the reasons set forth in the
preamble, title 40. chapter I of the Code
of Federal Regulations is amended as
follows:
PART 35—STATE AND LOCAL
ASSISTANCE
Subpart A—Financial Assistance for
Continuing Environmental Programs
1. The authority citation for subpart A
of part 35 continues to read as follows:
Authority: Sees. 105 and 301(a) of the
dean Air AM, as amended (42 U.S.C 7405
»d7601(a): Sees. 106. 205(g). 205{j). 208,
JW.501U). and 518 of the Clean Water Act.
oamended (33 U.S.C. 1256.I285(g). I285(j).
1288.1361[«) and 1377): sea. 1443.1450.
and 14S1 of the Safa Drinking Water Act (42
U.S.C. 300J-2.300J-9 and 300J-11): sees.
2002(a) and 3011 of die Solid Waste Disposal
Act as amended by the Resource
Conservation, and Recover* Act of 1076 (42
U.S.C. 6912(a). 6931.6947. and 6949): and
sea. 4.23. and 25(a) of the Federal
Insecticide. Fungicide and Rodentidde Act.
•s amended (7 U.&C 136(b). 13«u) and
136w(a).
2. Section 35.105 is amended by
adding a definition of Eligible Indian
Tribe in alphabetical order and by
revising the definition of "State" to read
as follows:
§35.105 Definition*.
• • • •
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 «n«nri«l assistance
programs under the Clean Water Act.
one of the States of the United States.
the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands. Guam. American Samoa.
the Commonwealth of the Northern
Mariana Islands, the Trust Territories of
the Pacific Islands or an eligible Indian
Tribe.
§35.115 [Amended]
3. Section 35.115 is amended by
revising the phrase "Indian Tribes
treated as States" in paragraphs (b). (d).
and (f) to read "eligible Indian Tribes"
and paragraph (g) is amended by
revising the phrase "Indian Tribe
treated as a State" to read "eligible
Indian Tribe".
§35.155 [Amended]
4. In § 35.155 paragraph (c) is
amended by revising the phrase "Indian
Tribes treated as States" to read
"eligible Indian Tribes".
§35.250 [Amended]
5. Section 35.250 is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes."
§35.255 [Amended]
6. Section 35.255(b) is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes".
Tribes treated as States" to read
"eligible Indian Tribes" and paragraph
(b) is amended by revising the phrase
••Indian Tribe treated as a State" to read
"eligible Indian Tribe".
§§ 35^65,35J65 and 35.755 [Amended]
8. Sections 35.265(a). 35.365(a)(l).
35.755(a). and 3S:755(b)(l>an 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)".
H35450rnd 35.750 [Amended]
9. Sections 35.350 introductory text
and 35.750 are amended by revising the
phrase "Indian Tribes treated as States"
to read "eligible Indian Tribes".
§35.400 [Amended]
10. Section 35.400 is amended by
revising the phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".
§35.1605-0 [Amended]
11. Section 35.1605-9 is amended by
revising the phrase "treated as a State"
in the heading to read "set forth SI 40
CFR 130.6(d)" and by revising the
phrase "set forth for treatment as a State
in accordance with 40 CFR 130.6(d) and
130.15" to read "set forth at 40 CFR
130.6(d)".
§35.1620-1 [Amended]
12. Section 35.1620-1 (c) is amended
by revising the phrase "treated as
States" in the paragraph heading to read
"eligible Indian Tribe" and by revising
the phrase "Indian tribe treated as a
State" to read "eligible Indian Tribe".
§35.415 [Amended]
13. Section 35.415(a)(l) is amended
by removing the words "—Treatment of
Indian Tribes as States".
§35.450 [Amendedh
14. Section 35.450 is amended by
revising the phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".
§35.465 [Amended]
15. Section 35.465(a)(l) is amended
by removing the words "—Treatment of
Indian Tribes as States".
PART 130—WATER QUALITY
PLANNING AND MANAGEMENT
1. The authority citation for part 130
continues to read as follows:
§35.260 [Amended]
7. In § 35.260 paragraph (a) is
amended by revising the phrase "Indian
Authority: 33 U.S.C. 1251 et seq.
§ 130.1 [Amended]
1. Section 130.1(a) is amended by
revising the phrase "Indian Tribe
11-27
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13818 Federal Register / Vol. 59. No. SB / Wednesday, March 23. 1994 '/ Rules and Regulations
treated as a State" to read "eligible §130.15 [Amended] and by removing the paragraph
Indian Tribe". 3. Section 130.15 is amended by designation "(a)" from the remaining
§13016 [Amended] revising the phrase "for treatment as a text
2. Section 130.6(d) introductory text State" in the heading to read "far Indian IFR Doc. 94-6387 Filed 3-22-94; 8:45 tin]
is amended by revising the phrase "may tribes"; by removing the phrase "for aniirmnrrf ma IB r
be treated as a State" to read "is treatment as a State" from paragraph (a);
eligible". by removing paragraphs (b). (c). and (d);
11-28
-------
Thursday
December 2, 1993
Part V
Environmental
Protection Agency
40 CFR Part 35
Indian Tribes: General Assistance Grants
for Environmental Protection Programs;
Interim Final Rule
11-29
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63876 Federal Register / VoL SB. No. 230 / Thursday. December 2, 1993 / Rules and Regulations
ENVIRONMENTAL PRO1 ECTION
AGENCY
40CFRPart35
[FRL-4670-7]
Indian Tribes: General Assistance
Grants tor Environmental Protection
B. Tribal!
V. Grant Ptuceduiea
A. Grant Application and Ma
B* PlUlHrffllf*'1* P*
VL Executive Older
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim final rule with request
for comments. _ _
SUMMARY: Under the Indian
Environmental General Assistance
Program Act of 1992 EPA must
promulgate regulations that govern the
award of general assistance grants to
Indian tribal governments to build
capacity to administer environmental
protection programs on Indian lands.
This interim final rule establishes the
rules and procedures EPA will follow in
awarding those grants.
DATE: Effective Date: EPA is publishing
this rule as an interim final rule which
is effective December 2. 1993.
Comment Date: EPA solicits
comments on this interim rule until
January 31. 1994.
ADDRESSES: Comments must be mailed
(in duplicate, if possible) to B. Katherine
Biggs. 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 SW.. Washington. DC
20460. telephone (202) 260-5926.
FOR FURTHER INFORMATION CONTACT: B.
Katherine Biggs. Office of Federal
Activities (A-104). U.S. Environmental
Protection Agency. 401 M Street SW..
Washington. DC 20460. at (202) 260-
507B.
SUPPLEMENTARY INFORMATION: This
preamble is organized according to the
following outline:
1. Introduction
A. Statutory BicJcground
B. Background of the Rulemaking
li. Description of Program and Regulation
A. Purpose of General Assistance Grants
B. Relationship to Other Grant Programs
1. Grants Under Statutes Authorizing EPA
to Treat Tribes in the Same Manner as
It Treats States
2. Grants for Regulation of Hazardous and
Solid Waste
III. Eligibility
IV. Grant Limitations
A. Terms and Awards
Vtt Regulatory Flexibility Act
VUL PapeiMoek Reduction Act
L Introduction
A. Statutory Background
On October 24. 1892. the President
signed into law the Indian
Environmental General Assistance .
Program Act of 1992 (Act). The
purposes of the Act are to:
(1) Provide general assistance grants to
Indian tribal aovemmeats end Intertribal
consortia to build capacity to administer
environmental regulatory programs that may
be delegated by the IEPAJ on Indian lands;
and (2) provide technical assistance ten the
fEPAl to Indian tribal governments and
intertribal consorua in the development of
multimedia programs to address
environmental issues on Indian lands.
Consistent with these purposes, the Act
authorizes the Environmental Protection
Agency (EPA) to provide general
ts to tribal governments
and
consortia for pluming,
ing, and establishing the
to implement environmental
EPA on Indian lands.
The Act requires EPA to promulgate
regulations establishing procedures
governing such grants. Since FY 91,
EPA has had authority to provide
financial assistance to tribes for t)*A
development of the capacity to
implement multimedia environmental
programs. EPA has relied to the extant
appropriate on its experience from
administering these programs in
developing this regulation.
B. Background of the Rulemaking
This interim fi«»l rule is consistent
with federal policy regarding Indian .
tribes, including the EPA inrftan Policy
Statement and Implementation
Guidance issued in November of 1984.
It is promulgated as interim final, rather
than as a proposed rule, hi accordance
with the Administrative Procedure Act.
5 U.S.C. 553(a). which exempts grants
rules from the notice-end-comment
requirements for rulemaking.
Nevertheless. EPA solicits public
Comment On this intm-im final rule
which takes effect today for prompt
implementation of *hi« new authority
for awarding grants to Indian tribes.
IL Description of Program and
Regulation
A. Purpose of General Assistance Grants
EPA's goal is to assist in the
development of tribal environmental
programs which are tailored to
individual tribal needs. General
assistance agreements are intended to
assist Indian tribes in developing the
capacity to manage their own
assistance agreements offer the
opportunity for a tribe to develop an
integrated environmental program.
develop the capability to manage
specific programs that can be delegated
by EPA, and. as appropriate, plan and
establish a core program for
environmental protection. These
assistance agreements provide the
; opportunity far the tribes to define end
develop administrative end legal
infrastructures, and to conduct
assessments, monitoring, planning and
other actions, and to undertake
additional activities to develop
environmental programs within a
simplified administrative framework.
The primary purpose of these
assistance agreements is to support the
development of elements of a core
environmental protection program, such
as:
• Providing for tribal capacity-
building to assure an environmental
presence for identifying programs and
projects, including developing
proposals for environmental program
grants and managing environmental
work:
• Fostering compliance with federal
environmental statutes by developing
appropriate tribal environmental
programs, ordinances and services: and
capability to work with federal, state.
local and other tribal environmental
officials.
The intent of the general assistance
grant program is to provide maximum
flexibility for the Agency to work with
tribes to plan, develop, and establish the
capability to implement effective
environmental programs for Indian
lands.
B. Relationship to Other Grant Programs
I. Grants Under Statutes Authorizing
EPA To Treat Tribes in the Same
Manner as It Treats States
EPA has a variety of authorities
regarding protection of the environment
on reservations. Several of the Agency's
statutes authorize the provision of funds
to tribes far specific media program
activities. Receipt of general assistance
under this program will not preclude a
tribe from also receiving program or
project-specific grants. Tribes remain
eligible for categorical program, project-
specific. and other EPA grants. Thus the
Act is explicit in its requirement that
the award of general assistance under
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Federal Register / Vol SB, No. 230 / Thursday. December 2. 1993 / Rules and Regulations 63877
this authority shall not result in a
reduction of EPA grants ior •
environmental protection to the
recipient Conversely, general assistance
agreements under the Act are not
prerequisites to program-specific grants
under other EPA authorities.
General assistance agreements must
support the objectives of EPA's statutory
and regulatory programs. Since the
principal focus of this program is on the
development of general tribal
environmental capability, assistance
will not be provided under this program
for construction of specific facilities or
for site-specific actions unless the
Agency determines it is necessary to do
so to carry out the purposes of the Act
Such determination shall include
approval of EPA's National Program
Manager for the General Assistance
Program.
2. Grants for Regulation of Hazardous
and Solid Waste
The Act expressly authorizes the use
of general assistance funds for
"planning, developing, and establishing
the capability to implement programs
administered by the Environmental
Protection Agency • • • [including] the
development and implementation of
solid and hazardous waste programs for
Indian lands."
A stated purpose of the Act is to build
tribal capacity "to administer
environmental regulatory programs that
may be delegated by the Environmental
Protection Agency on Indian lands."
Several statutes expressly authorize EPA
to approve tribal programs on Indian
lands, by providing that EPA may treat
tribes in the same manner in which it
treats states. By contrast, the Resource
Conservation and Recovery Act. which
regulates hazardous and solid waste
management, contains no express
language authorizing program approvals
on tribal lands, and EPA has not to date
issued regulations authorizing approval
of tribal programs (although such
regulations are under development).
The Agency believes that the Act's
express reference to waste programs is
intended to clarify that general
assistance funds may be used to build
capacity to administer environmental
regulatory programs for waste, as well as
water, air. and other media activities
integral to planning, developing, and
establishing environmental protection
programs on Indian lands.
ni. Eligibility
Federally recognized Indian tribes an
eligible to receive general assistance
agreements. The Bureau of Indian
Affairs (BIA) periodically publishes a
list of federally recognized tribal
entities. See. e.g.. S3 FR 52829-52832
(December 29.1988). Any tribe that has
gained recognition since the publication
of that list and thus does not appear on
it because the list has not been updated
by BIA will need to notify EPA of this
fact so EPA can verify this with BIA.
The Act defines "Indian tribal
government" broadly to include tribal
entities appearing on that list, including
Alaska Native villages and regional or
village corporations. However. Alaska
Native village corporations and regional
corporations are not deemed to be
governmental bodies, and therefore.
they are not eligible to receive general
««gjgta
develop regulatory programs. They may.
however, assist Alaska Native villages
with funds provided to the villages, and
in certain circumstances, village
corporations and regional corporations
may be eligible far direct funning for
non-regulatory capacity-building
activities, such as training or needs
Tribal consortia formed by two or
more eligible tribes far the purpose of
receiving general assistance agreements
are eligible for general assistance
agreements.
IV. Grant Limitations
A. Terms and Awards
The Act authorizes the establishment
of a general assistance program far
grants to Indian tribes. Section ll(d)(2)
of the Act further provides that a grant
awarded "under this subsection for a
fiscal year shall be no less than
$75.000." The Agency believes this
means that each new grant awarded
under this authority in a fiscal year
must be for a minimum of $75,000.
However, amendments under this
authority to either new grants or grants
originally awarded under the Multi-
Media Assistance Program, may be
made in such amounts as are
appropriate in light of the nature and
scope of the original project
The Act further provides that the term
of an award may exceed one year, with
funds remaining available until
expended. The Agency interprets this to
mean that, while no new grant may be
for an amount of less than $75.000. a
grant of that amount may be far a period
exceeding one fiscal year.
Finally. Section ll(d)(3) of the Act
provides that a recipient "may receive a
general assistance grant for a period of
up to four years in each specific media
area." EPA does not believe that this
precludes more than one award for work
in a particular area. However, the
Agency has determined that, under this
regulation, the term of an award made
under the Act may not exceed four
years. Grantees may reapply at the end
of the grant period.
B. Tribal Share
Neither the statute nor this regulation
requires that a tribe provide any share
of project costs. However, in the absence
of specific statutory authority, funds
provided under this program may not be
used as a cost share for any other federal
program (see 40 CFR 31.24(b)(D).
V. Grant Procedures
A. Grant Application and Management
The Act authorizes EPA. through this
regulation, to establish procedures for
this program. The Agency concludes
that general assistance agreements
should be governed by the requirements
of 40 CFR part 31. These are standard
EPA grant regulations that apply to
finnnriiil assistance to state and local
governments and Indian tribes. The
Agency believes it is appropriate to
apply these requirements in this
program far two principal reasons. First.
the requirements, which are not overly
burdensome, are based on a common
government-wide rule far administering
federal grants. Second, these
requirements generally govern all other
EPA assistance to tribes; if tribes are to
develop viable environmental programs,
they must have or develop the ability to
comply with these requirements.
Applicants must use the "Application
for Federal Assistance: State and Local
Non-Construction Programs" (Standard
Form 424). Tribes receiving federal
funds must comply with OMB Circular
A-128 which implements the Single
Audit Act of 1984. Circular A-128
assigns audit responsibilities based on
the amount of federal funding. General
Assistance agreements awarded under
the authority of 42 U.S.C. 4368b are not
subject to intergovernmental review.
B. Procurement Requirements
As noted above, general assistance
agreements are subject to the EPA grant
regulations applicable to state and local
governments and tribes at 40 CFR part
31. In addition, ordinarily all
procurements under federal financial
assistance are subject to standard
procurement requirements. However,
the Agency believes that these
requirements could prove to be
burdensome to some tribes, particularly
those who are just beginning to develop
capacity. Although uniformity in
administration of federal financial
assistance programs is important, the
Agency believes that Congress intended
that this program be shaped flexibly to
meet the needs of tribes developing
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63878 Federal Register / YflL 58. Na Z3SL' Thursday. December .2^1983 / Rules and Regulations
environmental management programs.
and to encourage and facilitate tribal
participation in th" program. For this
reason, for procurements of less than
S50.000. grant recipients under this
program will be provided with specific,
but limited and controlled, variation
from the standard federal procurement
requirements at 40 CFR part 31. In
summary:
• For procurements of S1000 or less.
the recipient need only determine that
the costs are reasonable. This procedure
is consistent with the requirements for
direct federal procurement.
• For purchases over S1000 and less
than S25.000, the small purchase
procedures in 40 CFR 31.36(d)(l) a; ^
• For procurements of S25.000 anc
over but less than S50.000. the recipient
must: (1) Solicit written bids/proposals
from two or more sources: (2) provide a
complete description of what the bid/
proposal must cover; (3) provide criteria
for evaluation of bids/proposals: (4)
evaluate all bids/proposals objectively:
and (5} notify all unsuccessful bidders/
proposers There is no requirement to
formally announce the request for bids/
proposals, and there is no formal panel
for evaluation of the bids/proposals for
procurements of S25.000 and over but
less than 550.000.
• For procurements of 550.000 or
over, the recipient must follow the
procurement requirements in 40 CFR
31.36
These procurement requirements are
similar to the procurement requirements
approved for use by recipients of
Superfund Technical Assistance Grants.
These procedures are simpler and easier
than the standard requirements, but are
generally consistent uith the common
rule and allow for adequate control.
including audits, over procurements
under these grants
VI. Executive Order Clearance
Under Execuuve Order E.O 12291.
EPA must )udge whether a new
regulation is "maior" and therefore
subject to the requirement of a
Regulatory Impact Analysis. This
regulation does not sausfy any of the
criteria the Executive Order specifies for
a maior rulemaking and therefore is not
subiect to a Regulatory Impact Analysis
This Regulation \vas submitted to
OMB for renew as required by E.O.
12291 and cleared under E.O.~12B66.
VII. Regulator)' Flexibility Act
EPA dm not develop a Regulatory
Flexibility Analysis for this grant
regulation because it is exempt from
notice and comment ruiemaiung unaer
section 553la){2) of the APA (5 U.S.C.
553la)(2)). and therefore is not subject to
the analytical requirements of sections
603 and 604 of the Regulatory
Flexibility Act (5 U.S.C 603 and 604).
vm.Pi
irork Reduction Act
The proposed regulation contains no
new or additional information
collection activities and. therefore, no
information collection request (ICR) will
be submitted to the Office of
Management and Budget (OMB) for
review in compliance with the
Paperwork Reduction Act. 44 U.S.C
3501efseg.
The information collection activities '.
associated with the 'administrative
requirements of assistance programs
have already been approved under the
provisions of the Paperwork Reduction
Act at 44 U.S.C. 3501 et seq end have
been assigned OMB control number
2030-0020
The collection of information
associated with the administrative
requirements of assistance programs is
estimated to have a public reporting
burden averaging 29 hours per response
and to require 3 hours per recardkeeper
annually. This includes time for
reviewing instructions.
2. Part 35 is amended by adding
subpart Q consisting of 55 35.10000
through 35.10035 to read as follows:
Subaert Q—General Assistance Grams to
Indian Trlbee
Sw.
35.10000 Authority
35.10005 Purpose and scope.
35.10010 Definition*.
3510015 Eligible recipients
35.10020 Eligible activities.
35.10025 Limitations.
35.10030 Grant management.
35.10035 Procurement under general
assistance agreements.
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief. Information Policy Branch (PM-
223Y). U.S. Environmental Protection
Agency: 401 M Street. SW.. Washington.
DC 20460: and to the Office of
Information and Regulatory Affairs.
Office of Management and Budget.
Washington. DC 20503. marked
"Attention: Desk Officer for EPA."
List of Subjects in 40 CFR Part 35
Environmental protection. Grant
programs-environmental protection.
Grant programs-Indians. Indians.
Reporting and recordkeeping
requirements.
Dated: November 19. 1993.
Carol M. Browner.
Administrator.
For the reasons set forth in the
preamble. EPA is amending 40 CFR pan
35 as set forth below:
PART 35— STATE AND LOCAL
ASSISTANCE
1. The authority citation for pan 35 is
revised to read as' follows:
Authority: 42 C.S.C. 436Bb.
art O—General Assistance Grants
to Indian Tribes
135.10000 Authority.
This subpart is issued under the
Indian Environmental General
Assistance Program Act of 1992 ("the
Act"). 42 U.S.C. 4368b.
§35.10005 Purpose end scope.
(a) This subpart codifies requirements
for administering general assistance
grants to Indian tribal governments and
intertribal consortia to build capacity to
administer environmental regulatory
programs on Indian lands.
(b) 40 CFR pan 31. "Uniform
Administrative Requirements for Grants
and Cooperative Agreements to State
and Local Governments." establishes
consistency and uniformity among
Federal agencies in the administration
of grants and cooperative agreements to
State, local, and Indian Tribal
governments. This subpart supplements
the requirements contained in 40 CFR
part 31. including its provisions for
accounting, auditing, evaluating, and
reviewing any programs or activities
funded in whole or in pan by an EPA
grant. " . . •
§35.10010 Definition*.
(a) Indian tribal government. Any
Indian tribe, band, nation, or other*
organized group or community.
including any Alaska Native village or
regional or village corporation (as
defined in. or established pursuant to.
the Alaska Native Claims Settlement Act
(43 U.S.C. 1601. et seq.)). which is
recognized by the United States
Department of the Interior as eligible for
the special services provided by the
United States to Indians because of their
status as Indians.
(b) Intertribal Consortia or Intertribal
Consortium. A partnership between two
or more Indian tribal governments
authorized by the governing bodies of
those tribes to apply for and receive
assistance under this program.
(c) General assistance. Financial
assistance provided under this program
-------
Federal Register / VoL 58. No. 230 / Thursday. December 2. 1993 / Rules and Regulations 63879
to Indian tribal governments or to an
intertribal consortia or consortium to
cover the costs of planning, developing,
and establishing the capability to
implement environmental protection
programs on Indian lands. General
assistance may be provided through
either a grant or a cooperative agreement
in accordance with the Federal Grant
and Cooperative Agreement Act, 31
U.S.C. 6301 et seq.
{35.10015 Eligible recipients.
The following entities are eligible to .
receive financial assistance under this /
program:
(a) An Indian tribal government.
(b) An intertribal consortium or
consortia.
{35.10020 Eligible ictlvltw*.
(a) Activities eligible for funding
under this program are those for
planning, developing, and establishing
capability to implement environmental
protection programs, including solid
and hazardous waste programs.
(b) Alaska Native village corporations
and regional corporations are not
eligible to receive general assistance for
capacity-building to develop regulatory
programs
S 35.10025 Limitations.
Financial assistance provided under
this program is subgect to the folloxving :
terms and limitations:
(a! No ir.mal grant provided under
this program for a fiscal year shall be for
an amount less than S75.000. A grant
amencrner.t may be for an amount less
thar. So.OOC
fs' No single grant awarded under this
program, rnav oe for an amount
exceeding ten percent of total annual
funds appropriated under section ll(h}
ofuie Ac:
Ic! Awards made pursuant to this
ser.ior. snali remain available until
expenaec within the term of the award.
Toe term, of an award may exceed one
yea;, but may not exceed four years.
(d) No award under this program shall
result ir. reauction of total EPA grants
for enx-ironmental programs to the
recipient Receipt of funds under this
program sna!i not preclude an eligible
India.-. triDal government or intertribal
consortium irom receiving individual
program or proiect-specihc grants or
cooperative agreements. Funds provided
under this program may be used to
supplement other funds provided by
EPA through individual program or
project-specific grants or cooperative
agreements.
135.10030 Grant iMMoement
Procedures for accounting, auditing,
evaluating, and reviewing any programs
or activities funded in whole or in part
for a general assistance grant under this
program shall be governed by
regulations at 40 CFR part 31.
f 35.10035 Procurement under general
assistance .egreemente.
Procurement of goods or services by
recipients funded under this program
shall be governed by the .following
requirements:
(a) Competition To the extent
permitted by 25 U.S.C 450e(b).
(1) The recipient must provide
maximum open and free competition.
(2) Recipients must not unduly
restrict or eliminate competition
(b) Documentation. Recipients must
document all procurement activities
with written records that furnish
reasons for decisions.
(c) Cost.
(1) The recipient must determine that
all costs are reasonable.
(2) The recipient must comply with
the cost and price analysis requirements
in 40 CFR 31.36(f).
(d) Debarment. Recipients and
contractors must not make any contract
at any time to anyone who is on the
"List of Parties Excluded from Federal
Procurement or Nonprocurement
Programs."
(e) Recipient Responsibility.
(I) The recipient is responsible for the
settlement and satisfactory completion
of all contractual and administrative
issues arising out of contracts entered
into under a grant.
(2) The recipient must ensure that all
contractors perform in accordance with
the terms and conditions of the.contract.
(!) Responsible contractors. The
recipient shall award contracts only to
responsible contractors that possess the
potential ability to perform successfully
under the terms and conditions of a
proposed contract
ig) Disadvantaged business
enterprises. The recipient shall comply
with the "Small. Minority. Women's
and Labor Surplus-Area Business"
requirements in 40 CFR 31.36(e).
(h) Illegal contracts. Recipients may
not award cost-plus-percentage-of-cost
or percentage-of-construction-cost
contracts.
(i) Contract provisions. The recipient
must include the following provisions
in each contract:
(1) Statement of work,
(2) Schedule for performance;
(3) Due dates for deliverables:
(4) Total cost of the contract;
(5) Payment provisions; and
(6) The following clauses from 40 CFR
33.1030, "Model contract clauses":
(i) Supersession;
(ii) Privity of Contract;
(iii) Termination;
(iv) Remedies;
(v) Audit. Access to Records.
(vi) Covenant Against Contingent
Fees;
(vii) Gratuities;
(viii) Responsibility of the Contractor:
and
(be) Final Payment.
(j) Subcontracting. A contractor must
comply with the following provisions in
its award of subcontracts (these
requirements do not apply to
subcontractors for the supply of
materials to produce equipment.
materials, and subcontracts for catalog.
off-the-shelf, or manufactured items):
(1) Section 35.10035(b)
Documentation;
(2) Section 35.10035(c) Cost;
(3) Section 35.10035(d) Debarment:
(4) Section 35.10035(f) Responsible
contractor:
(5) Section 3S.10035(g) Disadvantaged
business enterprises;
(6) Section 35.10035(h) Illegal
contracts: and
(7) Section 35.10035(i) Contract
provisions.
(k) Bid protests. The recipient must
establish a procedure for resolving
protests which complies with the
provisions of 40 CFR 31.36(b)(12).
(1) Procurement. Recipients shall not
divide any procurements into smaller
parts to get under any dollar limit.
(1) If the aggregate amount of the
purchase is S1000 or less, the recipient
may make the purchase as long as the
recipient demonstrates that the price is
reasonable.
(2) If the aggregate amount of the
proposed contract is over S1000 but less
than 525,000. the recipient must obtain
and document oral or written price
quotations from two or more qualified
sources.
11-33
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63880 Federal Register / VoL SB. No. 230 / Thursday. December 2. 1993 / Rules and Regulations
(3) If the aggregate amount of .the
proposed contract is 523.000 and over
but less than 550.000. the recipient
must:
(i) Solicit written bids/proposals from
two or more sources who are willing
and able to do the xvork:
(ii) Provide to potential sources a
clear and accurate description of the
xvork to be performed:
(iii) Provide the criteria the recipient
will use to evaluate bids/proposals;
(iv) Objectively evaluate all bids/
proposals submitted; and
(r) Notify all unsuccessful bidders/"
proposers.
(4) If the aggregate amount of the
proposed contract is 550.000 or over.
the recipient must follow the
procurement rules in 40 CFR 31.36.
(m) Aton-competitive procurements
The recipient shall comply with the
non-competitive procurement
. . requirements in 40 CFR 31.36(d)(4).
fFR Doc 93-29506 Tiled 12-1-93: 6-45 un>
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Region 9
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street
San Francisco, CA 94105-3901
May 23, 1994
MEMORANDUM
SUBJECT: A Reminder: Assuring Comp/li^lnce'with EPA's Indian Policy
/-I'^j.'Ki-^''*^-' ( . l/\^/'J.'rr*&~->--—
FROM: Deanna WiemanT Director
Office of External Affairs (E-4)
TO: Division Directors and Deputies
Branch and Section Chiefs
Several recent environmental situations on Indian Reservations
in Region 9 have lead to questions regarding EPA's relationships
with tribal goverments and State or local off-reservation agencies
to resolve problems on-reservation lands. In that regard, I would
like to refer you to the EPA Policy for the Administration of
Environmental Programs on Indian Reservations (see Attachment I).
Principle number #1 of the Policy states: "The Agency will
recognize tribal governments as the primary parties for setting
standards, making environmental policy decisions and managing
programs for reservations, consistent with agency standards and
regulations." In light of this principle our role should be to
look to and assist the Tribe to regulate activities on their lands
and not to encourage a State or local agency (i.e. a Regional Water
Quality Control Board, Air Pollution Control Districts, etc.) to
determine what standards should be applied to an on-reservation
facility. In this regard, EPA should always contact appropriate
tribal officials when EPA is taking action (i.e. inspection,
training, enforcement, etc.) on a reservation.
If a tribe has not demonstrated or does not demonstrate an
interest in regulating activities on their lands, EPA is the
agency responsible for assuring environmental compliance with the
Federal statutes and regulations per Policy principle #8.
The agency recognizes that pollution does not recognize and
contain itself within specified political boundaries, and
therefore, strongly encourages "cooperation between Tribal, State
and local governments to resolve environmental problems of mutual
concern", principle #6. Also this point is further discussed in
the Agency's Concept Paper entitled, Federal, Tribal and State
Roles in the Protection and Regulation of Reservation Environments.
(See Attachment II.) While both this document and principle #6
III-l
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-2-
stress that EPA will encourage tribal/state cooperation, they
further state that we will not support any one party to the
jeopardy of the interest of the other.
In conclusion, when dealing with environmental problems on
Tribal lands within Region 9, our primary responsibilities are to:
1. Work with Tribal governments on a government-to-government
basis. This includes, among other things, informing appropriate
tribal officials when EPA is taking action on a reservation;
2. Assure compliance with Federal environmental laws and
regulations on reservations where no approved tribal program
exists;
3. Work with the Tribal governments interested in developing
regulatory programs to regulate activities within their
jurisdictional areas by building tribal capacity; and
4. Encourage Tribes, States and local governments to work
together to resolve their differences and work together, as
neighbors, on areas of mutual concern without choosing one position
over another.
If we are to resolve environmental issues on tribal lands we must
involve the tribal government in the solution. We cannot
adequately or appropriately solve these problems merely working
with the regulated entity and/or a governmental body (state/local)
that has no jurisdiction on Tribal lands.
Any questions regarding the information within this memorandum
or the attachments should be referred to Roccena Lawatch at 4-1602
or Greg Lind at 4-1320.
Attachments - 2
cc: Indian Workgroup Members
III-2
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ENVIRONMENTAL
PROTECTION ORDER
AGENCY
1000.2
AUG 1 0 B35
Regional Indian Programs Steering Committee
REGIONAL INDIAN PROGRAMS STEERING COMMITTEE
1. PURPOSE.
To establish a Regional Indian Programs Steering Committee. The Steering Committee will
provide the direction and support for the Indian program in the Region. It will promote
overall policies to ensure the Region's Tribal environmental programs and operations are
strong, responsive to Tribal needs, and meet the principles of the EPA Indian Policy.
2. SCOPE.
The Steering Committee will provide strategic direction for Regional Indian policy. It will set
Regional policies and priorities, identify potential issues, make decisions, and coordinate
Indian program activities to increase effectiveness of Regional Indian programs. It will serve
as a communication forum for the Tribal activities in the Region. The Committee will ensure
that Tribal issues are elevated and Regional staff are educated about Tribes and the Indian
Program.
Members will serve as the lead for Indian issues in their Division/Office, and will be
responsible for ensuring that the Division/Office implements the Committee's decisions.
Members will be the focal point for communication between the Division/Office and the
Committee. They will be responsible for disseminating relevant information within their
respective Division/Office, and bringing emerging issues to the Committee's attention.
3. OPERATION.
A. Structure and Membership
The Committee will consist of two representatives from each Division/Office, one
representing staff and one representing management (Branch chief or above). Larger
Divisions/Offices (HWMD, WMD, OPM) may appoint an additional representative.
Each Division/Office will select an alternate to attend if members from a
Division/Office cannot attend. The Senior Staff Lead for the Indian Program, along
with the Senior Indian Program Officer and the Indian Coordinator, will represent the
Indian Program Team. The Committee will be chaired by the Deputy Regional
Administrator or the Senior Staff Lead.
Initiated by:
RC1» A-l, H-l, W-l, P-2, P-l, RA OEA
III-3
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Regional Indian Programs Steering Committee
Page 2
The Steering Committee, together with Tribal representatives from each state, make
up the Regional Tribal Operations Committee.
Committee members will serve a renewable, two-year term. If members are unable to
actively participate during their term, they will be asked to resign. New members will
be chosen for their interest, experience with Tribal programs, and ability to represent
their respective Division/Office.
As a working committee, the Steering Committee may appoint subcommittees as
needed, to develop issues or accomplish specific tasks.
B. Meetings
Initially, the Committee will meet at least once a month, on the first Thursday of each
month. Additional meetings will be scheduled as appropriate, and the Committee may
change the frequency of the meetings as needed. In addition, Steering Committee
members are expected to participate in the meetings of the Regional Tribal Operations
' Committee, which will be set by the full RTOC (both Tribal and EPA
representatives).
Members should make every effort to attend meetings. If they are absent, they will
abide by the decisions made in their absence. If they cannot attend, members have the
responsibility of presenting their opinions through their alternates. Decisions will be
reached by group consensus.
Steering Committee meetings will be open to all interested EPA staff. Visitors,
however, will not be included in decisions requiring Committee consensus.
C. Administration
In general, the Indian Programs Team will staff the Committee, schedule and arrange
Committee meetings, and distribute information, agenda and minutes to Committee
members. Committee members and program staff will provide support for particular
projects or tasks.
Each Division will establish an Indian Work Group or some other structure to
facilitate information exchange and monitor implementation of Division Tribal
programs. The Divisions/Offices will provide the Steering Committee and the Indian
Programs Team with the list of those staff within the Division/Office responsible for
Tribal activities, and will update those lists as necessary.
4. AMENDMENT AND REVIEW.
As the Committee's role and responsibilities evolve, it may change this document as
necessary. This Order should be reviewed annually to ensure that it accurately reflects the
purpose and procedures of the Committee.
Felicia Marcus
Regional Administrator
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DRAFT
REGIONAL STRATEGY
for
ENVIRONMENTAL PROTECTION ON REGION 9 INDIAN LANDS
November 1995
OUTLINE
I. STRATEGIC DIRECTION
H. THEMES
HI. ROLES AND RESPONSIBILITIES
IV. ACTION PLANS
a) Division Operating Plans
b) Committee Workplan
III-5
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III-6
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THE STRATEGIC DIRECTION
for
ENVIRONMENTAL PROTECTION ON REGION 9 INDIAN LANDS
The EPA Indian Policy commits the Region to work directly with
our 140 Federally recognized tribes on a government-to-government
basis to protect human health and the environment. Last year, the
Administrator reaffirmed the Policy and mandated Regional actions
to strengthen EPA's Tribal operations. To successfully implement
the Indian Policy, there must be a strong, Region-wide commitment
to fully incorporate the goals of the Policy into the ongoing
planning and management of the Region. A Regional strategy is
necessary to ensure the goals of the Policy are achieved, EPA
programs are responsive to Tribal needs and the high priority
expectations as directed by the Administrator and the Regional
Administrator are reached. Three overall themes form the strategic
direction.
First, the Region will increase coordinated grant and
technical assistance and outreach to Tribes to support--stronger
environmental and human health programs on reservations, treating
Tribes as unique customers and full partners. Region 9 will focus
outreach and assist Tribes in planning and building environmental
protection programs. The Region will communicate and collaborate
with Tribes more regularly and more frequently to better respond to
their needs. In addition, where Tribes require assistance to
protect and regulate Tribe-specific environments, the Region will
continue direct implementation and field assistance.
Second, the Region will place a new emphasis on education and
training for EPA employees to increase the EPA awareness of the
diversity and uniqueness of Indian cultures, society and
governments. EPA will utilize American Indians to assist us in the
education and training efforts.
Third, the Region will coordinate and work more cooperatively
with other federal, state and local agencies to protect reservation
environments and to help Tribes contend with local issues.
The Regional Indian Programs Committee has the responsibility
to plan and monitor this strategy. Each Division, the Regional
management and the Indian Programs Team have separate but
integrated roles and responsibilities to ensure Tribal operations
remain a high priority, visibility is increased and communication
throughout the Region is effective for the benefit of all Tribes.
III-7
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STRATEGIC THEMES
Comprehensive and well coordinated Region-wide action on each
theme is essential to meet the challenge to strengthen Tribal
environmental protection programs in the future. Each _operating
function in the Region that works directly or in a support role
with Tribes, should consider and incorporate as appropriate each
strategic theme into the planning and implemention of Regional
Tribal programs.
THEME No.l: PROVIDE COORDINATED SUPPORT AND OUTREACH TO TRIBES
Grant support; focus and coordinate assistance using the
multi-media approach commensurate with specific Tribal needs; if
determined to be advantageous for an individual Tribe, use
performance partnership grants; strive to reduce the funding
disparity between states and tribes.
Direct implementation;' increase dedicated resources.
Field assistance: increase travel budgets for more on-site
presence; coordinate timing and purpose of trips in Indian Country,
using trip reports and the Tribal Travel Tracking System; leverage
IHS and circuit riders.
Tribal/EPA Agreements; use TEA'S as a planning tool to define
resources to meet Tribal needs and to clarify our relationship with
specfic Tribes; continue and expand TEA development with interested
Tribes.
Outreach; target efforts to communicate information to Tribes
about EPA program authorities and jurisdiction; improve and expand
outreach materials; coordinate outreach efforts with all travel to
reservations.
Regional Tribal Operations Committee: adhere to the mission
and goals of the charter, looking for new opportunities for Tribal
representatives to help EPA coordinate and outreach more
effectively and efficiently; give RTOC participation a high
priority; improve communication within the Region.
Annual Tribal meetings: support and participate to facilitate
information exchange with our Tribes and to become better aware on
Tribal issues.
in-8
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THEME No.2; INCREASE EPA AWARENESS OF INDIAN CULTURE. ISSUES. NEEDS
Training and education: organize and expand training
opportunities for all EPA employees; support and .encourage
attendance at training classes; increase support for the American
Indian library.
Tribal Information System: support and maintain the data
system; complete and update data input to data base; use Tribal
profiles; increase Regional coordination and communication of Tribe
specific issues.
Recruitment; target American Indians into the workforce;
detail a Tribal representative to the senior leadership team.
Division work groups; support Indian work groups in all
Divisions to facilitate information exchange.
THEME No.3; COORDINATE WITH OTHER AGENCIES IN INDIAN COUNTRY
Federal agencies; work to improve and expand relationships,
especially with BIA.
Other agencies: coordinate and cooperate with state and local
agencies dealing with Tribes to protect reservation environments;
educate agencies on EPA Indian Policy.
EPA Headquarters and Regions: influence and support Agency
policy with EPA Regions and Headquarters; actively participate on
the National TOC; actively participate on the National Indian Work
Group and other media work groups affecting Indian policies;
fulfill Lead Region responsibility.
III-9
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ROLES AND RESPONSIBILITIES
REGIONAL ADMINISTRATOR & SENIOR LEADERSHIP TEAM
o Define and communicate Regional Strategic Direction
o Affirm and assure implementation of Regional Strategic Plan
o Allocate priority resources to Indian Programs
o Participate on Regional Tribal Operations Committee (RTOC)
REGIONAL INDIAN PROGRAMS COMMITTEE
o Carry out mission of the Charter
o Develop and recommend Regional Strategic Plan and Theme Workplans
Theme No.l: Support and outreach to Tribes
Theme No.2: EPA awareness of Indian culture, issues & needs
Theme No.3: Interagency coordination
INDIAN PROGRAMS TEAM
o Manage Indian General Assistance Program grants
o Coordinate Tribal issues, needs & Tribal/EPA Agreements
o Support RTOC and RIPC
o Liaison with Regions, AIEO, other agencies and organizations
o Ensures cross-media integration of Tribal operations
o Manage Tribal Information System
DIVISIONS AND INDIAN WORK GROUPS
o Plan and implement Division Operating Plans
o Cany out direct implementation regulatory responsibilities
(permits, inspections, enforcement, technical assistance)
o Build Tribal environmental program capacity
(program grants, technical & compliance assistance, outreach)
o Support program authorization
o Maintain program specific data in Tribal Information System
Tii-in
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EPA Region 9
Indian Programs Steering Committee
CHARTER
Mission
The Steering Committee will provide the direction and support for the Indian program in the
Region. It will promote overall policies to ensure the Region's Tribal environmental
programs and operations are strong, responsive to Tribal needs, and meet the principles of
the EPA Indian Policy.
Scope
The Steering Committee will provide strategic direction for Regional Indian policy. It will set
Regional policies and priorities, identify potential issues, make decisions, and coordinate
Indian program activities to increase effectiveness of Regional Indian programs. It will serve
as a communication forum for the Tribal activities in the Region. The Committee will ensure
that that Tribal issues are elevated and Regional staff are educated about Tribes and the
Indian Program.
Members will serve as the lead for Indian issues in their Division/Office, and will be
responsible for ensuring that the Division/Office implements the Committee's decisions.
They will be the focal point for communication between the Division/Office and the
Committee. They will be responsible for disseminating relevant information within their
respective Division/Office, and bringing emerging issues to the Committee's attention.
Structure and Membership
The Committee will consist of two representatives from each Division/Office, one
representing staff and one representing management (Branch chief or above). Larger
Divisions/Offices (HWMD, WMD, OPM) may appoint an additional representative. Each
Division/Office will select an alternate to attend if members from a Division/Office cannot
attend. The Senior Staff Lead for the Indian Program, along with the Senior Indian Program
Officer and the Indian Coordinator, will represent the Indian Program Team. The Committee
will be chaired by the Deputy Regional Administrator or the Senior Staff Lead.
The Steering Committee, together with Tribal representatives from each state, make up the
Regional Tribal Standing Committee.
Committee members will serve a renewable, two-year term. If members are unable to
actively participate during their term, they will be asked to resign. New members will be
chosen for their interest, experience with Tribal programs, and ability to represent their
respective Division/Office.
As a working committee, the Steering Committee may appoint subcommittees as needed, to
develop issues or accomplish specific tasks.
TTT-M
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Meetings
Initially, the Committee will meet at least once a month, on the first Thursday of each
month. Additional meetings will be scheduled as appropriate, and the Committee may change
the frequency of the meetings as needed. In addition, Steering Committee members are
expected to participate in the Standing Committee meetings, which will be set by the full
Regional Tribal Standing Committee.
Members should make every effort to attend meetings. If they are absent, they will abide by
the decisions made in their absence. If they cannot attend, members have the responsibility of
presenting their opinions through their alternates. Decisions will be reached by group
consensus.
Steering Committee meetings will be open to all interested EPA staff. Visitors, however, will
not be included in decisions requiring Committee consensus.
Administration
In general, the Indian Programs Team will staff the Committee, schedule and arrange
Committee meetings, and distribute information, agenda and minutes to Committee members.
Committee members and program staff will provide support for particular projects or tasks.
Each Division will establish an Indian Work Group or some other structure to facilitate
information exchange and monitor implementation of Division Tribal programs. The
Divisions/Offices will provide the Steering Committee and the Indian Programs Team with
the list of those staff within the Division/Office responsible for Tribal activities, and will
update those lists as necessary.
Charter Amendment and Review
As the Committee's role and responsibilities evolve, it may change this document as
necessary. This Charter should be reviewed annually to ensure that it accurately reflects the
purpose and procedures of the Committee.
May, 1995
IPSC Charter — 2
111-12
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REGION 9
REGIONAL TRIBAL OPERATIONS COMMITTEE
CHARTER
July 28, 1995
The Regional Tribal Operations Committee (RTOQ is the Regional counterpart to the National
Tribal Operations Committee (NTOQ. The RTOC does not replace direct Tribal to EPA
relationships. The RTOC recognizes and respects the existing Tribal jurisdiction, cultural,
political and social continuity of Tribes.
MISSION
The RTOC's mission is to:
• Assist EPA in meeting its trust responsibility to Tribes;
• Provide support for the Indian program in the Region;
• Strengthen Tribal environmental and public health programs;
• Enhance responsiveness to Tribal needs;
• Assist with the communication and information exchange between Tribes, the NTOC
and EPA.
COALS
The RTOC's goals are to:
Enhance government-to-govemment relationships between EPA and all Tribes.
Promote and strengthen the inherent ability and continuing efforts of Tribes to manage
programs to provide environmental and public health protection.
Assist EPA in meeting the principles of the EPA Indian Policy of 1984.1
Foster and encourage a partnership between EPA and Tribal governments, and build
relationships to improve environmental and public health protection on Indian lands. It
will demonstrate leadership in federal agency and Tribal government relations. It will
provide a forum to:
- develop strategies and recommendations for Regional resources and
operating policies, based on Tribal and EPA experiences
- foster better understanding and bridge gaps between EPA and Tribal
government cultures.
EPA Indian Policy of 1984, as reaffirmed by EPA Administrator Browner in 1994.
RTOC Chaner (7/28/95)
111-13
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SCOPE
The RTOC will help further the development of govemment-to-government relationships
between EPA and all Tribes in the Region. Within that scope, the RTOC will have a role in
three key areas:
Policy and Management of EPA Indian Programs
The RTOC will review and make recommendations on the development of Regional
strategies for all Indian program activities. It will advise Regional policies and priorities
and make recommendations on the deployment of Regional resources for Indian
program activities.2 It also will provide input on how national budget and resources
should be allocated.
The RTOC will review and make recommendations on Regional program activities that
impact the environment of Indian lands, including Agency initiatives that may impact
Region 9 Indian program operations.
The RTOC will review and make recommendations on the development, modification
and implementation of Agency policies.
The RTOC will help identify processes for assessing the environmental problems and
needs of Tribes, and filling information gaps.3
The RTOC will identify and promote opportunities for the training, education,
recruitment, and hiring of American Indians and Alaskan natives in careers of
environmental and public health protection.4
Coordination/Communication between Tribes/ EPA/ and other Agencies
The RTOC will serve as a communication forum for Tribal activities. It will work to
ensure effective, two-way communication between EPA and the Tribes in the Region,
and facilitate and coordinate communication with other federal agencies. It will
establish a communication network among Tribes to disseminate information and ideas
and solicit feedback. It also will advise Tribes how to contact EPA directly, and work to
ensure that there is an environmental presence in each Tribe.
As a coordinating body, the RTOC will provide a mechanism to identify issues, elevate
them to the appropriate level, and coordinate program activities to increase
effectiveness. The RTOC will provide a direct linkage to the NTOC, in order to facilitate
effective communication between the Tribes, Region 9, the NTOC, and the American
Indian Environmental Office.
The RTOC will represent the Region in the NTOC selection process with the American
Indian Environmental Office (AIEO). RTOC Tribal representatives shall be given
preference to serve as alternates to the NTOC meetings.
The RTOC as a body will not participate in individual application review and awards of EPA grants or
contracts.
3 The RTOC also supports increasing the number of EPA trips to Tribal lands to identify Tribal needs.
isses opportunities in Tribal and federal agencies.
iii-u Pa*e2
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SCOPE - continued
Education
The RTOC will work to ensure that Regional staff are educated about Tribes and the
Indian Programs. It will help raise awareness of the diversity among Tribes and promote
a better understanding of jurisdiction and sovereignty. It also will work to ensure that
Tribes are informed about EPA activities and available resources.
STRUCTURE AND MEMBERSHIP
EPA representatives to the RTOC are identified by the EPA Indian Programs Steering
Committee. Tribal representatives will be determined by govemment-to-govemment
communication with all Tribes in the Region. Tribal representation would be selected by
geographic area, as recommended by the RTOC and agreed to by the Tribal governments. The
NTOC representatives from Region 9 will also be members of the RTOC. The actual number
of Tribal and EPA representatives will be a joint decision by the RTOC. The RTOC is co-
chaired by a Tribal representative and an EPA representative.
If a RTOC member cannot attend a meeting, they will send an alternate. Alternates are to be
selected by the RTOC member, within their respective tribal or agency protocols.
RTOC members serve a renewable two-year term. This process will be revisited, if necessary,
to assure adequate continuity of membership. If RTOC members are unable to actively
participate during their term, they will be asked to reassess their ability to be active members.
The RTOC will notify all parties involved of changes in membership.
As a working committee, the RTOC may appoint subcommittees as needed, to develop issues
or accomplish specific tasks.
MEETINGS
At a minimum, the RTOC will meet four times a year. Additional meetings will be scheduled if
necessary, contingent upon available funds. Meetings will be conducted by the co-chairs,
including facilitation and management of the agenda.
RTOC members should make every effort to attend meetings. If they are absent, they will
abide by the decisions made in their absence. If they cannot attend, members have the
responsibility of presenting their opinions through their alternates or other means (e.g. letter).
Recommendations and actions will be made by RTOC members and will reflect the spirit of
consensus to the extent possible.
Meetings will be open to EPA employees, and all Tribal members and staff. Tribal Leaders are
invited to attend. Persons other than EPA staff or Tribal members and staff may be invited to
attend at the discretion of the RTOC.
ADMINISTRATION
EPA will staff the RTOC. EPA will arrange RTOC meetings; distribute information, agenda &
minutes to members; provide support for particular projects or tasks. Tribal representatives
on the RTOC will be compensated for their participation to the fullest extent possible.
CHARTER AMENDMENT AND REVIEW
As the RTOC's role and responsibilities evolve, it may change this document as necessary. This
Charter will be reviewed at least annually.
RTOC Charter f7/28'95^
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111-16
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TRIBAL EPA AGREEMENTS (TEAs)
EPA ADMINISTRATOR, CAROL BROWNER MANDATED THAT THE AGENCY
NEGOTIATE WORKPLANS (NOW REFERRED TO AS AGREEMENTS) WITH ALL
TRIBES IN HER JULY 1994 MEMO.
REGION 9 TARGETED THE 15 INDIVIDUAL TRIBES WHO HAD GENERAL
ASSISTANCE GRANTS AT THE BEGINNING OF FY9S AS THE FIRST TRIBES
WITH WHOM WE WOULD PURSUE THE OPPORTUNITY OF DEVELOPING
TEAs.
THE REGION 9 PROJECT OFFICERS FOR THE 15 GENERAL ASSISTANCE
RECIPIENTS INITIATED DISCUSSIONS WITH THOSE TRIBES TO PROPOSE
THE DEVELOPMENT OF TRIBAL EPA AGREEMENTS.
THE AGREEMENTS ARE TO BE USED AS A "PLANNING TOOL" FOR THE
TRIBE AND EPA AND TO IDENTIFY THE TRIBAL NEEDS AND EXPECTATIONS
FOR ENVIRONMENTAL PROTECTION. THE AGREEMENT IS NOT INTENDED
TO BE LEGALLY BINDING ON EITHER PARTY NOR IS ITINTENDED TO BEAN
EXPLICIT COMMITMENT FOR ACCOMPLISHMENTS OR RESOURCES.
TEAs WILL BE SIGNED BY THE REGIONAL ADMINISTRATOR AND THE
TRIBAL LEADER.
IN FY96 THE REGION WILL BEGIN DISCUSSIONS WITH APPROXIMATELY 40-
60 TRIBES AND DRAFT TEAs WILL BE DEVELOPED WITH RECEPTIVE
TRIBES.
PROGRAM STAFF WHO ARE CONDUCTING PROGRAM ACTIVITIES (DIRECT
IMPLEMENTATION, GRANT ACTIVITY) MAY BE CALLED UPON TO
PARTICIPATE IN THE TEA PROCESS (ESP. IN FY96 AND BEYOND).
THE AMERICAN INDIAN ENVIRONMENTAL OFFICE (EPA-HQS) PREPARED A
TEMPLATE FOR EPA/TRIBAL ENVIRONMENTAL AGREEMENTS. DATED
MARCH 17,1995 AS GUIDANCE. REGION 9 HAS CONVERTED THE TEMPLATE
INTO SAMPLE TEA LANGUAGE AND IS AVAILABLE TO INTERESTED TRIBES
ON COMPUTER DISK.
THE AGREEMENTS WILL BE TRIBE SPECIFIC AND CAN BE CRAFTED TO
MEET THE NEEDS OF EACH TRIBE.
THE TEMPLATE AND REGION'S SAMPLE TEA IS ONLY ONE APPROACH.
TRIBES WISHING FOR A SIMPLER LESS FORMAL DOCUMENT CAN PURSUE
A DIFFERENT APPROACH (I.E. A LETTER WHICH SPELLS OUT THE
COMMUNICATION LINKS BETWEEN EPA AND THE TRIBE AND HIGHLIGHTS
THE TRIBE'S ENVIRONMENTAL NEEDS, INCLUDING FUNDING.)
TTT-1~
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111-18
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DRAFT
[SAMPLE LANGUAGE FOR A TEA]
TRIBAL/EPA AGREEMENT
BETWEEN
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 9
SAN FRANCISCO, CA
AND
(NAME OF TRIBE)
(LOCATION OF TRIBE. CITY AND STATE)
HI-19
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IIT-20
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I. PARTIES
This TRIBAL/EPA AGREEMENT (hereinafter referred to as "Agreement"
or "TEA") between the name of tribe (hereinafter referred to
as "Tribe") and the U.S. Environmental Protection Agency, Region 9
(hereinafter referred to as "EPA") concerns the protection of human
health and the environment on the name of reservation/rancheria.
II. STATEMENT OF PURPOSE
It is the purpose of this Agreement to promote strong environmental
protection on Tribal lands; promote a government-to-government
relationship in recognition of Tribal sovereignty in environmental
protection of treaty resources; provide an understanding of the
Tribe's individual and unique environmental needs and identify
areas under which the Tribe intends to pursue program
responsibilities; cooperatively develop, implement and maintain
comprehensive Tribal environmental programs; build environmental
capacity in order for the Tribe to operate programs for the long-
term; identify areas where EPA needs to plan for and carry out
direct implementation; include the Tribe in Agency planning while
addressing specific Tribal problems; build equal partnerships and
work collectively as the Tribe establishes its priorities for
environmental protection; and enhance and foster communications
between EPA and the Tribe.
III. ROLES AND RESPONSIBILITIES
The above mentioned parties agree to work in partnership in
the development of and implementation of programs to protect human
health and the environment on name of reservation/rancheria.
EPA;
EPA maintains responsibility for implementing all federal
environmental programs, until such time as the Tribe is granted
approval/authorization/delegation/primacy to implement such
programs in lieu of EPA. EPA shall perform its duties in
accordance with the principles of this Agreement, all the
principles included in the Agency's Indian Policy and Federal
environmental laws and their implementing regulations and with
respect to existing Tribal laws.
EPA will make all efforts to provide the tribe with timely
advice on available grants and other sources of available funding,
training and on-going meetings that will affect the Tribe.
EPA recognizes that there are Tribal cultural concerns such as
subsistence needs and traditional uses of natural resources that
require protection beyond the scope of our Federal authorities. To
the degree that EPA can address these concerns when making agency
decisions on implementing federal environmental programs, it will
do so. EPA will also support the development of Tribal
environmental programs to protect these resources, where the
Federal programs may not.
111-21
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THE TRIBE: , .
The Tribe will identify areas where EPA will need to plan for
and carry out direct implementation. In addition the Tribe will
identify for EPA their needs (resources, technical assistance,
training) to build or maintain environmental capacity for
environmental protection programs the Tribe wishes to operate over
the long-term.
. .
The parties to this Agreement recognizes that communication is
a key principle to successfully address environmental issues of
mutual concern. And as such, both parties will aspire to
communication which is open, clear, direct, timely and between
persons authorized and responsible for addressing those concerns.
The tribe and EPA recognize that accountability within each
other's organization is critical to the successful implementation
of this Agreement. Therefore, the Chairoerson/President/Governor
and/or his/her designee and the Regional Administrator will direct
appropriate staff to follow the principles and guidelines of the
Agreement.
In order to successfully implement this Agreement, the tribe
and the EPA will ensure that its organization, decision-making
process and relevant personnel are known by the parties to the
Agreement.
IV.TRIBE/EPA ACTION PLAN
Include .information regarding the following in this section:
1. ENVIRONMENTAL PROGRAM AREAS WITH TRIBAL INVOLVEMENT (grants,
joint implementation with EPA, inspections only, etc.)
2. TRIBAL PROGRAM ASSUMPTION (list program areas, timeline etc)
3. FUNDING NEEDS (identified by program, time period)
4. FEDERAL DIRECT IMPLEMENTATION (areas where EPA maintains sole
responsibility)
5. EPA OUTREACH AND TRAINING (identify subject matter)
6. IDENTIFY OTHER TRIBAL NEEDS (infrastructure, accountability)
7. OTHER BENEFICIAL INFORMATION MIGHT INCLUDE:
A. Describe Tribe's goals objectives and desire outcomes.
B. Identify short-term resource needs (next 2 years).
C. Identify long-term goals/resource needs (through next 3-4
years, if possible).
D. Provide methods for implementing the program(s)—
including enforcement and for treaty resources, of the
reservation. This would include an identification of
contributions made by EPA, Tribe and other Federal agencies.
Areas in which the tribe may want to pursue working with the
State or with a Tribal consortia may be included.
-------
E. List specific Tribal priorities in addition to general
program assumption, such a developing Tribal codes, carrying
out monitoring, developing a profile of Tribal resources, etc.
F. Define the Tribe's cultural, resource and technical
expertise, including current staffing and future staffing
needs.
G. Provide a method for monitoring progress.
V. TERMS OF THE AGREEMENT
In order to implement the purpose, roles and responsibilities
and the action plan of this Agreement set forth in Sections II, III
and IV above, the parties agree to the following terms:
Cooperation; Each party shall cooperate to the greatest extent
possible with the other party in fulfilling the purpose of this
Agreement.
Timely Notification; Each party shall act in a timely manner to
provide information and documentation for planned and proposed
actions (i.e. funding requests, program assumption, on-site
inspections, enforcement actions, technical assistance, training,
program approvals) of interest to the other party of this
Agreement. When the proposed action of a party may directly affect
the program(s) or interest of the other party, the proponent of
such action shall solicit input from the other party.
Funding: EPA shall make every effort to assure timely processing
of funding requests, and adequate program development and
implementation funds to the extent permitted by available
resources, applicable laws and Tribe's eligibility.
Compliance: EPA will have responsibility for enforcing Federal
environmental laws and regulations. The Tribe will have
responsibility for assuring that any facilities or systems for
which the Tribe is owner and/or operator are in compliance with
Federal environmental laws and regulations.
Review: EPA and the Tribe will review progress in the
implementation of this Agreement annually.
Revisions/Amendments; This Agreement may be amended at any time.
Amendments shall be made by supplemental Agreements executed in
writing by both parties to this Agreement.
Written Communications; Written communications pursuant to the
provisions of this Agreement shall be delivered or mailed as
follows:
1. TO THE EPA: Regional Administrator, EPA Region 9
75 Hawthorne Street
San Francisco, CA 94105-3901
2. TO THE TRIBE:
TTT-7T
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VI. DURATION AND TERMINATION OF AGREEMENT
This Agreement shall continue in effect until ether terminated
by joint agreement of the parties, or any party terminates its
participation in this Agreement. Written notice of termination
must be given to the other party of the Agreement in advance of the
termination. Such termination shall not relieve any party of
responsibilities otherwise proscribed by law or regulation.
VII. EXECUTION
This Agreement shall be effective upon date of execution by
both parties.
(Tribal leader name and Title) Date
(Tribe name)
Felicia Marcus Date
Regional Administrator, EPA Region 9
111-24
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OVERVIEW: REGION 9 INDIAN PROGRAM
EPA REGION 9'S INDIAN TRIBES
There are 139 Federally recognized Indian tribal entities within the states of Arizona,
California and Nevada. This represents 25 percent of the Tribes nationwide, and 22 percent of
the national Tribal population, and 40 percent of the national Tribal land area.
Land Bases and Economics
Arizona - Individual Tribal lands range in size from 85 acres to 10 million plus acres.
Approximately 2.7 percent of the land in Arizona is Tribally held. Tribal land topographies in
Arizona range from timbered forests, arid deserts to rocky mesas. Several of the Arizona
tribes have lands which include lakes and rivers. Groundwater is the primary source of water
within the State. The economic bases of the tribes include industry, mining, agriculture and
recreation.
California - Individual tribal lands range in size from less than one acre to 93,000 acres.
Tribal land topographies in California include coastal, mountainous, timbered forests, deserts
and valleys. Several tribes in California have lands which include surface waters of rivers,
streams, ocean and lakes. Within California, both surface and groundwater are sources of
water for the tribes. The economic bases of the tribes include agriculture and recreation.
Nevada - Individual Tribal lands range in size from less than one acre to 450,000 acres.
Tribal land topographies in Nevada range from arid desert to sparsely vegetated grazing lands.
Although several of the Nevada tribes have lands with surface waters such as lakes and rivers,
the primary source of water is groundwater. The economic bases of the tribes include
agriculture and recreation.
ENVIRONMENTAL CONCERNS FACING TRIBES
Tribes face the full range of environmental concerns, including:
• Air quality due to particulate matter and fugitive dust, pesticide aerial spray, as well as
off-reservation sources.
Water quality contamination from mining, pesticide use, inadequate wastewater
treatment or poorly maintained waste disposal systems.
• Drinking water problems from inadequate sources and insufficient infrastructure for
operation and maintenance of systems.
Solid waste disposal problems associated with open dumping and open burning.
• Soil and groundwater contamination from leaking underground storage tanks.
Problems associated with inappropriate disposal of hazardous waste through illegal and
indiscriminate dumping of waste.
As of February 1, 1995 there are 140 Federally recognized tribes in Region 9.
Other statistics are not available.
TTT_or
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EPA'S INDIAN PROGRAM
In 1984, EPA issued an Indian Policy in which it committed to working with Indian Tribes in
a govemment-to-govemment relationship, recognizing that tribal governments are the primary
parties for setting standards, making environmental policy decisions and managing environ-
mental programs on reservations. The Agency further committed to encourage and assist
Indian tribes in assuming regulatory and program management responsibilities.
Until such time as tribes develop environmental regulatory programs, EPA has responsibility
for assuring that activities conducted on Indian lands are in compliance with the Federal
environmental laws and regulations.
The Indian Program Team in the Office of External Affairs, coordinates the Agency's
environmental activities pertaining to Tribal lands within EPA Region 9, and manage the
multi-media General Assistance grant program (GAP), which supports Tribal environmental
programs. Region 9 currently is serving as Lead Region for Tribal issues.
Environmental program offices within EPA Region 9 maintain responsibility for all activities
related to EPA's implementation of the Federal environmental programs (i.e., permitting, in-
spections and enforcement), project officer responsibilities for categorical program grants, and
the approval of tribal programs for authorization, delegation and primacy.
111-26
2 Overview - Indian Program
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PROFILE OF TRIBES, BY REGION
EPA
Region
1
2
3
4
5
6
7
8
9
10
#of
Tribes
8
7
0
6
24
63
10
27
139
264
Tribal
Population
6,111
15,548
0
18,914
56,964
373,639
8,742
141,615
217.970
161,938
%of
National
Population
0.6
1.6
0
1.9
5.7
37.3
0.9
14.1
21.8
16.2-
Tribal Land
Area
167,164
118,199
0
231,082
1,271,604
8,984,667
101,906
16,028,487
21.899,972
5,268,841.
% of National
Tribal Land
Area
0.3
0.2
0
0.4
2.4
16.6
0.2
29.6
40.5
9.7
Based on data gathered from the
tribes were added in 1995.
EPA Regional Coordinators in 1994. Additional
111-27
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111-28
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FEDERALLY RECOG1NZED CALIFORNIA TRIBAL ENTITIES: 101
(Per February 16, 1995 Federal Register)
Reservations: 48
Agua Caliente Band of Cahuilla Indians of the Agua
Caliente Indian Reservation
Augustine Band of Cahuilla Mission Indians of the
Augustine Reservation
Big Pine Band of Owens Valley Paiute Shoshone Indians
of the Big Pine Reservation
Bridgeport Paiute Indian Colony
Cabazon Band of Cahuilla Mission Indians of the Cabazon
Reservation
Cahuilla Band of Mission Indians of the Cahuilla
Reservation
Campo Band of Diegueno Mission Indians of the Campo
Indian Reservation
Barona Group of Capitan Grande Band of Mission Indians
of the Barona Reservation
Viejas (Brown Long) Group of Capitan Grande of Mission
Indians of the Viejas Reservation
Chenehuevi Indian Tribe of the Chemehuevi Reservation
Coyote Valley Band of Porno Indians
Cuyapaipe Community of Diegueno Mission Indians of the
Cuyapaipe Reservation
Death Valley Timbi-Sha Shoshone Band
Fort Bidwell Indian Community of Paiute Indians of the
Fort Bidwell Reservation
Fort Independence Indian Community of Paiute Indians of
the Fort Independence Reservation
Hoopa Valley Tribe of the Hoopa Valley Reservation
Hopland Band of Porno Indians of the Hopland Reservation
Inaja Band of Diegueno Mission Indians of the Inaja and
Cosnit Reservation
lone Band of Miwok Indians
Jamul Indian Village
Karuk Tribe of California
La Jolla Band of Luiseno Mission Indians of the La
Jolla Reservation
La Posta Band of Diegueno Mission Indians of the La
Posta Indian Reservation
Los Coyotes Band of Cahuilla Mission Indians of the Los
Coyotes Reservation
Hanzanita Band of Diegueno Mission Indians of the
Hanzanita Reservation
Mesa Grande Band of Diegueno Mission Indians of the
Mesa Grande Reservation
Morongo Band of Cahuilla Mission Indians of the Morongo
Reservation
Paiute-Shoshone Indians of the Bishop Community of the
Bishop Colony
Paiute-Shoshone Indians of the Lone Pine Community of
the Lone Pine Reservation
Pauma Band of Luiseno Mission Indians of the Pauma and
Yuima Reservation
Pechanga Band of Luiseno Mission Indians of the
Pechanga Reservation
Ramona Band or.Village of Cahuilla Mission Indians
Rincon Band of Luiseno Mission Indians of the Rincon
Reservation
Round Valley Indian Tribes of the Round Valley
Reservation (formerly known as the Covelo Indian
Community)
San Manual Band of Serrano Mission Indians of the San
Manual Reservation
San Pasqual Band of Diegueno Mission Indians
Santa Rosa Band of Cahuilla Mission Indians of the
Santa Rosa Reservation
Santa Ynez Band of the Chumash Mission Indians of the
Santa Ynez Reservation
Santa Isabel Band of Diegueno Mission Indians of the
Santa Ysabel Reservation
Soboba Band of Luiseno Mission Indians of the Soboba
Reservation
Sycuan Band of Diegueno Mission Indians
Torres-Martinez Band of Cahuilla Mission Indians
Tule River Indian Tribe of the Tule River Reservation
Twenty-Nine Palms Band of Luiseno Mission Indians
Utu Utu Gwaitu Paiute Tribe of the Benton Paiute
Reservation
Yurok Tribe of the Yurok Reservation
Pala Band of Luiseno Mission Indians of the Pala
Reservation
Pas kenta Band of Nomlaki Indians
HI-29
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Raneherias: 53
Alturas Indian Rancheria of Pit River Indians
Bear River Band of the Rohnerville Rancheria
Berry Creek Rancheria of Haidu Indiana
Big Lagoon Rancheria of Smith River Indians
Big Sandy Rancheria of Mono Indiana
Big Valley Rancheria of Poao and Pit River Indiana
Blue Lake Rancheria
Buena Vista Rancheria of Me-Huk Indians
Cachil DeHe Band of Hintun Indians of the Coluaa Indian
Community of the Colusa Rancheria
Canto Indian Tribe of the Laytonvilie Rancheria
Cedarvllle Rancheria of Northern Paiute Indians
Cher-Ae Heights Indian Coaninity of the Trinidad
Rancheria
Chicken Ranch Rancheria
Cloverdale Rancheria of POBO Indians
Coast Indian Community of Yurok Indians of the
Resighini Rancheria
Cold Springs Rancheria of Mono Indians
Cortina Indian Rancheria of Hintun Indians
Dry Creek Rancheria of Pono Indians
El em Indian Colony of POBO Indians of the Sulphur Bank
Rancheria
Elk Valley Rancheria
Enterprise Rancheria of Maidu Indians
Greenville Rancheria of Maidu Indians
Grindstone Indian Rancheria of Wintun-Wailaki Indians
Guidiville Rancheria
Jackson Rancheria of Me-Huk Indians
Kashia Band of Pono Indians of the Stewarts Point
Rancheria
Lytton Rancheria
Manchester Band of Pono Indians of the Manchester-Point
Arena Rancheria
Hechoopda Indian Tribe of Chico Rancheria
Middletown Rancheria of Pono Indians
Moo re town Rancheria of Maidu Indians
Northfork Rancheria of Mono Indians
Picayune Rancheria of Chukchansi Indians
Pinoleville Rancheria of Pono Indians
Pit River Tribe of California
- Big Bend Rancheria
- Lookout Rancheria
- Montgomery Creek Rancheria
- Roaring Creek Rancheria
- XL Ranch
Potter Valley Rancheria of Pono Indians
Quartz Valley Indian Community of the Quartz Valley
Reservation
Redwood Valley Rancheria of Pono Indians
Robinson Ranchecia of Porno Indians
Rumsey Indian Rancheria of Hintun Indians
Santa Rosa Indian Community of the Santa Rosa Rancheria
Scotts Valley Band of Porno Indians
Sheep Ranch Rancheria of Me-Huk Indians
Sherwood Valley Rancheria of Porno Indians
Shingle Springs Band of Miwok Indians, Shingle Springs
Rancheria (Verona Tract)
Smith River Rancheria
Susanvllle Indian Rancheria of Paiute, Maidu, Pit River
and Nashoe Indians
Table Bluff Rancheria of Hiyot Indians
Table Mountain Rancheria
Tuolumne Band of Me-Huk Indians of the Tuolumne
Rancheria
United Auburn Indian Community of the Auburn Rancheria
Upper Lake Band of Porno Indians of Upper Lake Rancheria
Redding Rancheria of Porno Indians
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INDIAN TRUST LAND AND
UNTERMINATED RANCHERIAS
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RECOGNIZED ARIZONA TRIBAL ENTTTTES: 21
(Per February 16, 1995 Federal Register)
Reservations
Ak Chin Indian Community of Papago Indians of the Maricopa, Ak Chin
Reservation
Cocopah Tribe of Arizona
Colorado River Indian Tribes of the Colorado River Indian Reservation
Fort McDowell Mojave-Apache Indian Community of the Fort McDowell
Indian Reservation
Fort Mojave Indian Tribe
Gila River Pima-Maricopa Indian Community of the Gila River Indian
Reservation
Havasupai Tribe of the Havasupai Reservation
Hopi Tribe
Hualapai Tribe of the Hualapai Indian Reservation
Kaibab Band of Paiute Indians of the Kaibab Indian Reservation
Navajo Nation (AZ, NM and OT)
Pascua Yaqui Tribe
Quechan Tribe of the Fort Yuma Indian Reservation (CA Tribe considered
AZ Tribe)
Salt River Pima-Maricopa Indian Community of the Salt RK'«r F- .-.orvation
San Carlos Apache Tribe of the San Carlos Reservation
San Juan Southern Paiute Tribe
Tohono O'odham Nation (formerly known as the Papago Tribe incl. Sells,
Gila Bend and San Xavier Reservations & Florence Village)
Tonto Apache Tribe
White Mountain Apache Tribe of the Fort Apache Reservation
Yavapai Apache Nation of the Camp Verde, Middle Verde and Clarkdale
Reservations
Yavapai-Prescott Tribe of the Yavapai Reservation
111-32
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ARIZONA
INDIAN RESERVATIONS
MARICOPA son
Rlvir
TTT-31
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FEDERALLY RECOGNIZED NEVADA TRIBAL ENTITIES; 18
(Per February 16, 1995 Federal Register)
Reservations
Confederated Tribes of the Goshute Reservation, NV & Utah
Duckwater Shoshone Tribe of the Duckwater Reservation
Ely Shoshone Tribe of Nevada
Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian
Reservation
•
Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony,
Nevada
Lovelock Paiute Tribe of the Lovelock Indian Colony
Moapa Band of Paiute Indians of the Moapa River Indian Reservation
Paiute-Shoshone Tribe of the Fallen Reservation and colony
Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation
Reno-Sparks Indian Colony
Shoshone-Paiute Tribes of the Duck Valley Reservation
Summit Lake Paiute Tribe
Te-Moak Tribes of Western Shoshone Indians
Bands: Battle Mountain, Wells, Elko, South Fork
Walker River Paiute Tribe of the Walker River Reservation
Washoe Tribe of Nevada & California
- Carson Community
- Dresslerville Community
- Woodsfords Community
- Stewart Community
- Washoe Community
Winnemucca Indian Colony
Yerington Paiute Tribe
- Yerrington Colony
- Campbell Ranch
Yomba Shoshone Tribe of the Yomba Reservation
111-34
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NEVADA
INDIAN RESERVATIONS
»»no-Sl
51.w
DOUCUS
f SummH
HUMBOLDT
rYotntoo MM. lUtv.
ombo Ind. Dnv.
111-35
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111-36
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IV
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Overview of Indian Lav Issues
1. Tribes
-Indian tribes are sovereign governments, subject to federal but
not state power. Tribal members are citizens of the United
States, of their tribes, and, for some purposes, of states.
-In the late 19th century, Congress encouraged non-Indians to
settle reservations. This policy was discontinued, but large
parts of some reservations are now owned in fee by non-Indians.
2. EPA Indian Policy and Statutes
-Under its 1984 Indian Policy EPA works with tribes on a
govermnent-to-government basis, with tribes playing the same role
on reservations that states play elsewhere.
-Beginning in 1986, the Safe Drinking Water, Clean Water, Clean
Air Acts, and CERCLA have been amended to authorize EPA to treat
tribes in the same manner as states. Agency regulations allow
tribes to qualify for "treatment as states," through a process
tribes have criticized as creating paperwork burdens, and which
the Agency has proposed a regulation to revise. Air Act
regulations will soon be proposed.
3. Jurisdiction on Reservations
-Tribal civil authority over tribal members and lands is
generally unchallenged. Tribes lack criminal authority over non-
Indians. Tribal civil authority over non-Indians and non-Indian
lands ("fee lands") within reservations is a difficult issue,
that sometimes leads to confrontations between tribes and states.
-EPA recognizes that tribes, as governments, have inherent
sovereign authority over activity on fee lands that "threatens or
has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe."
-This test, which EPA applies in its Water Act regulations,
involves a fact-specific analysis, recognizing that
environmental activities generally have serious effects.
Tribes can usually demonstrate authority over environmental
matters throughout reservations.
-Some states are uncomfortable with this approach. See
Flathead materials.
-Congress has broad authority over tribal affairs and may, by
statute, delegate authority to tribes, extending tribal authority
to areas that may be beyond the tribe's inherent authority.
iv-l
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-EPA intends to propose Clean Air Act regulation providing
that, approved tribe will exercise authority over all air
activities within the borders of a reservation, not just
those within tribe's inherent authority.
-Novel interpretation. May have some legal risk.
-Differs from interpretation of Water Acts. May be
pressure to construe Water Acts as delegations, or to
seek amendatory language.
-Delegation approach emphatic in treating reservations
as cohesive administrative units; moves toward limiting
state presence on reservations.
-Provides clarity, predictability.
-Raises jurisdictional issue squarely and attempts to
resolve it through rule-making, rather than case-by-
case as with inherent authority.
4. EPA-Tribal Concept Paper
-The Agency has never expressly foreclosed approval of a state
program on a reservation.
-In 1991 EPA's Administrator generally endorsed a Regional
Concept Paper which would effectively preclude almost any state
programs anywhere on a reservation, even in areas where tribe
lacked inherent authority.
-The Agency has never explicitly followed this approach, and
has not discussed it in any regulation governing reservation
jurisdiction, including those promulgated since Concept
Paper. Nevertheless, Paper is sometimes cited as a
statement of official Agency policy.
-If the Agency intends to implement this approach, it should
announce it formally in a forum that provides full notice to
all affected parties.
5. Funding for Tribes;
-Grants are principal component of Indian program to date; Agency
has authorized handful of tribes to operate federal programs, has
awarded hundreds of grants.
-Tribes are eligible for categorical grants for work in
individual programs, such as water or air.
-EPA has special authority to award grants to tribes for the
purpose of developing general capacity to manage reservation
environments. This program grew out of an Agency initiative
to identify how best to meet the needs of tribes.
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BUREAU OF INDIAN AFFAIRS
NAVAJO AREA OFFICE
LAND TERM DEFINITIONS
1. Tribal Trust Lands - Land in which title is held in trust by
the United States for the Navajo tribe of Indians. Composed
of lands set aside by Treaty, Executive Order, Act of
Congress, United States purchase, and railroad reconveyed or
relinquished lands. These lands are non-taxable and require
tribal consent before BIA approval of land transaction.
2. Allotted Trust Lands - A parcel of land granted to an
individual Indian in trust by the United States. The land is
non-taxable and requires the consent of the land owner(s)
before BIA approval of any land transaction.
3. Indian Homestead - Land filed upon in accordance with the
Homestead Laws administered by the Bureau of Land Management.
A trust patent is usually issued to Indians who qualify for
homesteads and are then treated the same as allotments. Non-
Indian Homesteads are treated as private lands.
4. Nava-io Fee Patent Land - Land owned by the Navajo Tribe in
fee title, not in trust. These lands are considered privately
owned lands and can be owned individually or by the Navajo
Tribe. These lands are taxable and do not require BIA
approval for land transactions.
5. Government Withdrawn Lands - Lands withdrawn from the Public
Domain by Public Order, usually for proposed exchange or
resettlement purposes. These lands are administered by the
BIA (Property and Supply) and do not require tribal consent
for land transactions.
6. Administrative Reserves - Land specifically set aside by
Executive Order or Statute to be used as administrative sites
for agency and school purposes. These lands are administered
by the BIA (Property and Supply) and do not require tribal
consent for land transactions.
7. Public Domain - Land owned by the United States Government
and administered by the Bureau of Land Management.
8. Split Estate Lands - Lands which the surface rights are as
defined in thru 4, and the mineral rights are owned and may be
developed by others, including the United States.
11/1/84
IV-3
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IV-A
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CHAPTER 1-INDIAN LAW AND POLICY
Introduction
Federal law is a reflection of Federal policy and vice verse. Which comes first is like
the chicken and the egg. However it evolves, we need to understand the history of
Federal policy to understand the legal status of Indians and their attitudes toward the
Government, Self-Governance, and other issues today.
The following chronology shows the milestones in Federal Indian policy. Notice how
several major shifts in policy occurred over very short periods of time. It is not
surprising, therefore, that American Indians today are cautious to embrace new Federal
policies.
Indian Relations in Colonial Times
Basic Law of Discovery (1492-1776)
The history of western civilization is a chronicle of conquest. Central to European law
in the 1500's through the 1700's was the Right of Discovery. It held that the country that
discovers another land has title to the land and that the laws of discovering country apply
in the new land. The fact that the new land was inhabited made little difference to many,
particularly if the language, dress, and culture of the inhabitants were significantly
different from those of European society.
Although many Europeans felt that aboriginal people were not civilized, perhaps not even
human, and certainly without rights, there were those who were more enlightened.
Franciscus de Vitoria was one of them.
Vitoria was a Spaniard during the Age of the Conquistadors. In 1532, he argued that
"aborigines undoubtedly had true dominion in both public and private matters, just like
Christians, and that neither their princes nor private persons could be despoiled of their
property on the ground of their not being true owners." [De Indis Et De lure Belli
Relectiones 128 (E. Nys ed., J. Bate trans. 1917)]
Vitoria said that European nations could exercise power over the Indians or acquire their
property only because of conquest in a "just" war or through a voluntary cession and
agreement by the Indians. Vitoria's views became accepted by writers on international
IV-5
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Working Effectively With Indian Tribes 1 - 2
law of the 16th, 17th, and 18th centuries. The thin pretext for many "just" wars and the
coerced "voluntary cessions" are infamous, dark moments in Western history.
Although some land in America was claimed by Spain, (e.g., California, Arizona, New
Mexico, Florida and Texas), and some by France, (the Louisiana Purchase), the land
which the United States occupied at the time of its creation had been claimed by England.
Therefore, English law applied, but the policies (originally offered by Vitoria) were the
same.
Under English law, Indians had a right of occupancy—sometimes called Original Indian
Tide. Only a sovereign nation could treat with Indian Tribes. In the colonies as early
as 1651, individual colonists were prohibited from purchasing land from Indian Tribes
unless the purchase was authorized by the Crown or colonial government. English law
also required just compensation for the taking of land. This applied to treaties with
Indians as well as purchases.
Sovereign Nations—Government to Government Relationships
During the colonization of America, the British Crown dealt with Indian Tribes formally
as sovereign nations through treaties. As the colonies grew, the colonists encroached on
Indian land and otherwise treated Indians poorly.
In response, the Crown assumed die role of protector. In 1763, it forbade cessions of
Indian land west of the crest of the Appalachians. It also centralized the process of
licensing and approving all Indian land cessions east of the Appalachians.
The following year, the Crown proposed a plan to control all other regulation of Indian
Affairs through the Indian agents. The plan was only partially implemented and never
formally approved. It was abandoned in 1768. In 1775, however, the Crown revived
the concept of centralized management of Indian affairs and appointed Indian agents who
were directly responsible to London. The following year, the colonists declared
independence.
Indian Relations with the New Nation
With independence, the new nation found itself facing the same issues concerning Indian
rights. It also wanted to avoid Indian wars, which were a drain on the treasury and a
potential tool for foreign powers. The Government realized that if Indian affairs were
TV-f.
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Working Effectively With Indian Tribes 1 - 3
left to the individual States, the greed for land certainly would cause more Indian unrest.
Therefore, the authors of the Constitution gave the power to treat with Tribes to the
Federal Government rather than to the States. Only the President could make treaties and
only with the consent of the Senate. The Federal government also was given the power
to regulate interstate commerce and trade, including that with Indians.
In 1778, the first treaty was signed between a Tribe (The Delaware) and the new govern-
ment. By signing this treaty, the government affirmed the British and European tradition
of dealing with Tribes as political entities.
Trade and Intercourse Acts (1790-1834)
The Trade and Intercourse Acts were a series of laws passed to protect Indians. The laws
distinguished between Indians and non-Indians and made all trade with Indians subject to
Federal regulation.
The laws also changed the Federal-Tribal relationship. Tribes lost a measure of internal
sovereignty. A Tribe's right to enforce its laws was not only restricted to its territory,
it further was generally restricted to its own people.
The Trade and Intercourse Acts did the following:
• Prohibited non-Indians from acquiring Indian land by treaty or purchase;
• Prohibited non-Indian settlement on Indian lands;
• Prohibited non-Indians from hunting or grazing animals on Indian lands;
• Made trade with Indians subject to Federal regulation and license;
• Made crimes against Indians committed by non-Indians a Federal crime and
provided for compensation to Indians;
• Government provided for compensation of non-Indians who prevailed in
damage cases involving Indians;
• Authorized the War Department to appoint Indian agents; but
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• Did not regulate the conduct among Indians (e.g., trade between Indian
individuals or Indian nations).
Supreme Court Shapes The Federal Relationship
Johnson v Mclntosh (1823) - The First Supreme Court Case
Dealing with Indian Affairs
Before the Non-Intercourse Acts clearly outlawed the purchase of Indian lands by
individuals, the sale of Indian land to individuals was not uncommon. In 1823, the Court
was asked to review one such transaction.
The Court ruled that the transaction was not valid. Only the Federal Government had
that right. Prior to the founding of the new government, only England had the right to
treat with Indian Tribes. With the Declaration of Independence, that right transferred to
the new nation. Speaking for the majority of the Court, Chief Justice Marshall stated that
"The Indians retained the right of occupancy which only the discovering sovereign could
extinguish, either by purchase or by conquest."
Cherokee Nation v Georgia (1831) -.The First of the Cherokee Cases
In the early 1800's, Georgia enacted laws that divided the Cherokee territory among
counties. Georgia extended State law to these counties, thereby invalidating Cherokee
law. Moreover, the State made it illegal for the Cherokee government to pass or enforce
laws. The Cherokees sued.
The case is a landmark because the Court had to decide whether the Cherokees had the
right to sue a State in Federal court. Central to that issue was whether the Cherokee
Tribe was a "foreign state" within the meaning of the Constitution at provision giving the
Court jurisdiction over suit between foreign nations and ones of the United States.
Writing for the majority of the Court, Chief Justice Marshall concluded:
The Tribe succeeded in demonstrating it is a state, a "distinct political
society separated from others and capable of managing its own affairs and
governing itself."
Yet, the Court held that the Tribe was not a foreign nation for its lands were within the
boundaries of the United States. Marshall concluded:
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"They [Indian Tribes] may, more correctly, perhaps be denominated domes-
tic dependent nations. They occupy a territory to which we assert a title
independent of their will which must take effect in point of possession,
when their right of possession ceases. Meanwhile, they are in a state of
pupilage; their relation to the U.S. resembles that of a ward to his
guardian."
Indian Tribes were "dependent nations." Unlike other nations, Indian nations had fewer
rights. For example, the land of foreign nations, such as France or Spain could not be
claimed by the United States, but the United States could claim ownership of the land
occupied by the Tribes. This meant, among other things, that the United States would
not recognize a treaty between a Tribe and another nation—something Tribes had done
during the Revolutionary War and the War of 1812.
As a dependent nation, a Tribe was something between a State and a foreign government.
(The Constitution clearly did not recognize Indian Tribes as States.) This placed Indian
Tribes in a unique position that required the special protection of the Federal government.
They were the wards of the United States; and in the eyes of the Court, that made the
Government a trustee.
In law, a trust responsibility is one that must meet exacting standards of ethical conduct--
such as in trust established by Last Wills and Testaments. In recognizing the Government
as a trustee, the Court has required that the United States follow high standards when
dealing with or representing the interests of American Indians.
The Government still has that trust responsibility today. It is a tough role in which the
Government must defend and protect American Indian interests while encouraging Indians
to become more independent. At the same time, the government is responsible for all
the other interests for which it has responsibilities. Unfortunately, the Government's
stewardship as a trustee over the past 150 years often has fallen below the high standards
envisioned in law.
Worcester v Georgia (1832) — The Second Cherokee Case
A year after the Court handed down its famous "dependent nation" rule, it heard another
case concerning Cherokees in Georgia. Georgia authorities had arrested several mission-
aries for violating a State law that required non-Indians residing in Cherokee territory to
be licensed by the State. Two of the missionaries appealed to the Supreme Court.
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Chief Marshall concluded that Georgia had no jurisdiction. The Tribe had "exclusive
jurisdiction" within the boundaries of the reservation. This case formed the basis for
Indian jurisdictional law.
The Government As A Trustee
Although the Court was favorable to Indians, Congress and the Executive Branch often
were not. In the 19th century, it was the "Manifest Destiny" of the United States to
expand and "civilize" the frontier. Indian Tribes were impediments to that goal.
Repeatedly, they were forced to move farther west to new reservations—to land that the
white-man did not want—until later.
Movement to Reservations (1830-1887)
1830 — Indian Removal Act
This legislation authorized the forced removal of Indians to reservations. The
Trail of Tears and other removal efforts resulted from this legislation.
1871 — Congress passed a law stopping the making of treaties with Indians.
A significant reason for ending treaty making was the House of Representatives
objecting to only the President and the Senate making Indian policy decisions.
Both the Board of Indian Commissioners and the abolition of
the treaty system were the result of growing resentment in the
House of Representatives over the Senate's paramount role in
Indian policy. The House did not participate in the conclu-
sion of treaties by the Executive or their ratification by the
Senate but had to appropriate the funds to carry them out.
The House held up the Indian appropriations bill in 1869, and
the Board of Indian Commissioners was the compromise that
broke it loose. The House refused all compromise in 1871,
and the Senate acceded to an act that abolished the treaty
system - without, however, invalidating existing treaty
obligations.
[Quote from footnote 4 on page 214 of Robert M. Utley's Frontier Regulars
THE UNITED STATES ARMY AND THE INDIAN 1866-1891.]
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Reservations established after 1871 were authorized by statute or executive order.
This removed Tribes from the category as quasi-foreign political entities and
weakened their political status.
Congress's intent was to distance Indians/Non-Indians. It also wanted to civilize
the Indians and assimilate them into American culture. The law did not change
the requirement for mutual agreement. Tribal consent was still a necessary part
of Federal actions. However, the need for mutual agreement and tribal assent
may be accurate only for negotiated agreements when the Indians were stronger
than the Non-Indians. Military force was used when the Indians wouldn't agree
or comply, before and after the end of treaty making. Food was withheld to
force the Sioux to give up the Black Hills and other land.
1883 — Courts of Indian offenses were established—fashioned after Federal/State model.
1883 - Crow Dog Case: The murder of an Indian by an Indian.
The Court ruled the murder was a Tribal matter and that Tribal laws applied.
In response to the ruling, Congress passed the Major Crimes Act declaring
murder and other serious crimes on Indian lands to be Federal offenses that could
be heard only in Federal court. This law severely eroded Tribal sovereignty and
traditional Tribal roles.
Allotment Period (1887-1928)
The Allotment Act of 1887
In the late 19th and early 20th centuries, the Government decided that Tribal governments
were really unnecessary and that Indians should be given the same rights and privileges
as other citizens. One major way to accomplish this was to give Indian land to Indian
individuals. Congress believed that the Indians would farm the land, become typical
landowners, and assimilate into American society. (Individual allotment Acts were passed
before. 1887.)
It was a noble concept for some and a way of getting Indian land for others. Thus, in
1887, Congress passed the General Allotment Act (Dawes Act 24 Stat. 388). This law
did not apply to some Indians - see 25 USC 339 and 349.
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The Act gave 160 acres to the head of the family and 80 acres to others in the family.
Twice that amount was allotted if the land was suitable for grazing. Later, the amounts
were reduced.
The land was held in trust for 25 years, while the Indians learned to manage their affairs.
After that time, the land conveyed to the allottee in fee, free of encumbrances and subject
to taxes.
Indians who received allotments became citizens of the United States, subject to State and
local criminal and civil laws, but enjoying the protection of these laws as well. (Thirty-
seven years later, the Indian Citizenship Act of 1924 made all Indians citizens of the
United States.)
The Act also authorized the Secretary to negotiate with the Tribes for disposition of all
"excess" lands remaining after allotments. This land was used for the settlement of non-
Indians.
Results of allotment period
The effect was devastating to Indian Tribes and culture. Tribal governments were
severely undermined, if not eliminated. Without a land base, these governments had no
authority separate from the States; and as Indians became citizens of the United States,
the Tribal governments lost their authority over their membership. In the Government's
eye. Tribes became little more than clubs or associations.
The amount of land over which Indian Tribes lost control was staggering: from 138
million acres in 1887 to 48 million acres in 1934. Of this remaining land, over one acre
in 10 was desert or semi-desert land, scarcely capably of supporting any type of agricul-
ture.
Indian Reorganization and Preservation of Tribes (1928-1953)
The allotment period did not bring the changes and prosperity Congress expected.
Instead, it brought greater poverty and hardship to many Indians. Thousands of Indians
never had a chance to farm their land-they lost it instead to the white-man. Indian Tribal
governments, although greatly weakened, did not disappear. Both Congress and the
President recognized the need for a major change in public policy.
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Merriam Report (1928)
In 1928, the Secretary of Interior commissioned an independent study of Indian affairs
in the United States and the role and effectiveness of the BIA. Conducted by the Institute
of Government Research, and funded by John D. Rockefeller, Jr., the Merriam Report,
as it was later called, recognized the disaster created during the allocation period, and
recommended that the Government reaffirm and strengthen it's trust responsibility to
Indian people and Tribes. Recommendations of the Merriam report were incorporated
in the Indian Reorganization Act.
Indian Reorganization Act (1934)
This law was passed in response to the Merriam report and in reaction to the disaster of
the allotment period. The Act excluded some Tribes but most Tribes had to vote to reject
coming under the IRA. If they did not vote, they are covered. As a result, some Tribes
are not under the Indian Reorganization Act (IRA) and are referred to as "Treaty Tribes"
or "Traditional Tribes." Some of the strongest Tribes are not organized under the IRA
such as Navajo, Yakima, Colville, Red Lake, most Pueblos, etc. The IRA—
• Recognized and Strengthened Tribal governments.
• Extended indefinitely the period of land held in trust.
• Restored to Tribal ownership the "surplus" lands acquired from Tribes
under the Allotment Act.
• Gave Tribes the right to employ legal counsel, with Secretarial approval.
• Secretary could issue charter of incorporation.
Trust period extensions were provided for (25 USC 348 1st proviso, 348a) as was the
earlier ending of the trust period (25 USC 349, 357, 372, 373, 378, 379). Allotting was
ended in 1934 (25 USC 461) for Tribes where allotting was still possible if the tribe met
the following criteria:
• Was not excluded from the IRA" under 25 USC 473 as amended by 473a, and
• Did not reject the IRA under 25 USC 478 and 478a.
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The IRA also provided an indefinite extension of trust periods for Tribes subject to the
IRA (25 USC 462). That provision was extended to all Tribes and Indian trust lands in
1990 (25 USC 478-1).
In 1936 Congress passed the Oklahoma Indian Welfare Act (25 USC 501-509). It is sort
of a compromise or lesser IRA for Oklahoma (except Osage).
Termination and Relocation (1953-1968)
Twenty years later, the pendulum was moving in the opposite direction again. Congress
wanted out of the Indian trustee business. It wanted "as rapidly as possible to make the
Indians within the territorial limits of the United States subject to the same laws and
entitled to the same privileges and responsibilities as are applicable to other citizens of
the United States." H. Con.Res. 108, 83rd Cong., 1st Sess., 67 Stat. B132 (1953).
Over 100 Tribes were terminated during this period. Nearly all were small Tribes or
bands, with the exceptions of the Menominee of Wisconsin and the Klamath of Oregon.
With termination, the special relationship with the Federal government ended. Tribes
were subject to State laws. Lands were converted into private ownership and generally
sold.
During this period, the BIA established the Relocation Program, which encouraged
Indians to leave the reservation and seek jobs in urban areas. Although thousands of
Indians relocated to major cities across the country, many American Indians did not give
up their culture nor did Tribal governments disintegrate. Total assimilation did not
occur.
Public Law 83-280: A Blow to Tribal Sovereignty
In the 1950's, Congress dealt the final blow to Tribal sovereignty in several States with
the passage of P.L. 83-280. This law gave the following States civil and criminal
jurisdiction over Indian communities:
California Minnesota (except Red Lake)
Nebraska Oregon (except Warm Springs)
Wisconsin
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The law allowed other States to assume jurisdiction by statute or by a State constitutional
amendment. Several States assumed partial or total jurisdiction under this authority. They
were:
Arizona Iowa North Dakota
Florida Montana Utah
Idaho Nevada Washington
Alaska (except Metlakatla) was added by amendment in 1958.
Consent of the affected Tribes was not required and usually not sought. Ike's signing
statement for P.L. 93-280 said it was deficient because it didn't require Indian consent
and he asked Congress to amend it to remedy that deficiency. A consent provision was
added in 1968 but was not retroactive. The 1968 amendments also provided a way for
the States to retrocede jurisdiction they had acquired back to the U.S.
The law did not, however, give States general regulatory power. Nor did it give them
the right to tax Indian property held in trust or to interfere with hunting and fishing
rights.
Tribal Self-Determination (1968 -1982)
In sharp contrast to the 1950's, the 1970's was a decade in which the Government
reorganized and supported Tribal governments. Just as had happened in the 1930's,
Congress, the Administration, and the Courts recognized the dislocation, poverty, and
many other problems caused by termination policies. The Government reacted strongly
and enacted a series of measures designed to support Tribal governments.
1968 -- Indian Civil Rights Act (ICRA)
This law imposed on Tribes most of the requirements of the Bill of Rights
• Protection of free speech
• Free exercise of religion
• Due process
• Equal protection of laws
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There was some disagreement over whether a Tribe could define "due process"
and "equal protection." There also was disagreement about whether the ICRA
gave Federal courts the power to hear cases that arose within the Tribe.
The ICRA placed restrictions on the power to Tribal governments. Vine Deloria,
Jr. (Custer Died For Your Sins - An Indian Manifesto, page 238) said:
With the passage of the 1968 Civil Rights Act, Indian Tribes fell
victim to the Bill of Rights. The Stage, is now set for total erosion
of traditional customs by sterile codes devised by the white man.
Some Tribes are now [1969] fighting to get the law amended because
the law allows reliance on traditional Indian solutions only to the
extent that they do not conflict with State and Federal laws.
Although the Bill of Rights is not popular with some Tribes, the
Pueblos in particular, I do not believe that it should be amended.
With the strengthening of Tribal courts Indian Tribes now have a
golden opportunity to create an Indian common law comparable to the
early English common law.
Many national leaders have encouraged Indian judges to write lengthy
opinions on their cases incorporating Tribal customs and beliefs with
State and Federal codes and thus redirecting Tribal ordinances toward
a new goal.
ICRA also amended P.L. 83-280 to require Indian consent for States to assume
jurisdiction.
1970 - Nixon's Indian Policy
President Nixon stressed the continuing importance of the trust relationship. He
urged the development of programs to allow Tribes to manage their own affairs
with the maximum amount of autonomy. He also recognized that Tribal govern-
ments were permanent fixtures of Indian society and culture, and he supported
strengthening these governments.
1971 - Alaska Native Claims Settlement Act (ANSCA)
Under ANSCA the Federal government developed a new relationship with the
Native people in Alaska. Among other things, ANSCA extinguished aboriginal
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land and hunting and fishing claims. It provided for regional and village
corporations under State law (bypassing Tribes) with a 20 year restriction on
stock alienation. An extension of the restriction by the corporations was autho-
rized in 1988. The corporations could select land and get unrestricted fee title
to it.
1974 — Indian Financing Act
This law provides for a revolving loan fund to aid in the development of Indian
resources.
1975 - Indian Self-Determinatjon Act (P.L. 93-638)
This law reflects President Nixon's policy to strengthen Tribal governments and
to allow Tribes to have more control over their affairs. Under this law, a Tribe
can contract with the BIA and IHS to operate any program or portion of a
program that those agencies provide to the Tribe. This law has recently been
amended to include other programs within the Department of Interior.
1975 ~ The Mazurie Decision
The Supreme Court held that the self-governing character of Tribes enables the
Congress to delegate power to them that would be impermissible if delegated to
a non-governmental entity. A unanimous decision written by Justice Rehnquist
involved Non-Indians convicted of selling liquor on reservation without a tribal
license. The Court upheld the 1953 Federal law allowing Tribes to regulate
liquor on reservation.
1978 - The Martinez Decision
This case resolved some issues created by the ICRA. The Supreme Court ruled
that Congress had not intended Federal courts to hear cases arising from the
ICRA, except in special circumstances involving Indian people who were in jail.
The Court held that Tribal courts had jurisdiction for other cases.
1978 - The Oliphant Decision
In this case, the Supreme Court ruled that Indian Tribal courts do not have
criminal jurisdiction over non-Indians on the reservation.
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1978 - Indian Child Welfare Act
This law governs adoption and child custody proceedings involving Indian
children. Under the law, Tribal courts have exclusive jurisdiction over the
custody of Indian children residing on the reservation and of Indian children who
are wards of the Tribal court regardless of where the children reside or are
domiciled. Tribal courts have concurrent jurisdiction over Indian children who
are Tribal members or eligible for Tribal membership even though the children
reside or are domiciled off reservation.
Self-Governance (1982 - Present)
Today, Indian affairs appear to have evolved to a new period-the period of Self-
Governance. American Indians have moved beyond the right to have their own
governments and courts. More and more Tribes are successfully operating their own
programs and exerting a wide range of governmental powers. There appears to be a
growing acceptance among the Federal, State, and local governments of the right of
Tribal governments to exercise authority over its members.
1982 — Indian Tribal Government Tax Status Act
Allowed Tribes to qualify for Federal tax advantages, including the ability to
issue tax-exempt bonds to finance government projects.
1983 — President Reagan reaffirmed the earlier Nixon policy.
1983 — Bingo halls opened on Tribal lands.
1987 ~ The Cabazon Decision
The Supreme Court ruled that Tribes have the right to have bingo on Tribal land
and are not subject to State regulation.
1988 -- Indian Gaming Regulatory Act
This law provides for Federal and Tribal regulation of Bingo and some other
gaming on reservations. It requires a Tribal-State compact for the regulation of
slot machines and casino type gaming not barred by State law and public policy.
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Working Effectively With Indian Tribes 1-15
A Gaming Commission was established to regulate Indian gaming not covered
by a compact. Traditional Indian gaming is left to exclusive Tribal jurisdiction.
1988 -- Tribal Self-Governance Demonstration Project
This experimental project allows Tribes to negotiate a compact with the BIA for
programs they want to operate. Tribes have greater flexibility in the operation
of these programs and how they use the money than they had under the P.L. 93-
638 procedures. Tribal leaders are involved with the compacts, much like they
were with treaties.
Some Tribal leaders oppose self-governance projects. They view the policy as
another move toward termination.
1990 — The Duro v Reina Decision
The Supreme Court said that Tribal courts did not have jurisdiction over Indian
non-Tribal members.
1991 -- Public Law 102-137
Congress provided Tribal courts authority over Indian non-Tribal members for
acts committed on Tribal land. This effectively renders moot the Duro decision.
1991 — President Bush reaffirmed the government-to-government policy.
1991 and 1992 - The Yakima Cases
In two different cases, the Supreme Court has ruled that fee land on the
reservation is under the jurisdiction of the State. In many situations, the State
can zone and tax fee land on reservations.
1994 - President Clinton reaffirmed the government-to-government policy.
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We sic of the ame opinion with the people of Ifre United States; you consider
yourselves as independent people; we, as the onproJ inhabitants of this country,
and sovereigns of the sol, look upon ourselves ax equally independent, and free
as any other nation or nations.
-Joseph Brant. Mohawk
WHAT IS SOVEREIGNTY?
A. General Definition
"Sovereignty" is a difficult word to
define. Sovereignty is a difficult word to
define because it is intangible, it cannot
be seen or touched. It is very much like
an awesome power, a strong feeling, or the
attitude of a people. What can be seen,
however, is the exercise of sovereign
powers.
Sovereignty is also difficult to define
because the word has changed in meaning
over the years. For our purposes, a good
working definition of sovereignty is: THE
SUPREME POWER FROM WHICH ALL
SPECIFIC POLITICAL POWERS ARE
DERIVED. Sovereignty is inherent; it
comes from within a people or culture. It
cannot be given to one group by another.
Some people feel that sovereignty, or the
supreme power, comes from spiritual
sources. Other people feel that it comes
from the people themselves.
Indian people have offered these defini-
tions of SOVEREIGNTY:
• The Bishop Paiute: "Our tribe's in-
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herent right to select its own system of
government, define its membership,
and to negotiate with other entities as a
nation without loss of independence.
• Oneida Nation (Wisconsin): "Our ex-
istence as a nation with the power to
govern ourselves in regard to political,
social and cultural aspects that meet
the needs of our people.
• Kkkapoo Nation (Kansas): "The in-
herent right of a group or groups of
people with the power of self-
government to exist without external
exploitation or interference.
Son other people believe that sovereign-
ty is derived from the "law of nature."
Some feel that it comes from the unique
capabilities of a single ruler by whom the
people consent to be governed. Whatever
the case, sovereignty cannot be separated
from people or their culture.
B. European Origins
The concept of sovereignty began in
Europe around the time of the birth of
Christ. Roman judges, drawing upon Greek
philosophy, described majestas or sover-
eignty as the "proper authority by which
people make laws."1 Under the reign of
Louis XIV, King of France (1643-1715),
the concept of proper or supreme authority
became associated with the word "sover-
eignty" which literally means rule or power
above all else. During this period, sover-
eignty almost always meant the absolute
power of a ruler—the king, queen, czar or
emperor. Since sovereignty was said to
come from God, kings ruled by "divine
right." They were responsible only to God
for their actions. The theory of divine right
of kings was generally accepted because of
the continual warfare and turmoil Euro-
peans found themselves in during the 17th
century. With a strong individual leader.
stability was more easily maintained.
Toward the end of the 17th. century,
the large European empires were beginning
to break up and the concept of nation-
states evolved. Nations were made up of
people of similar cultures, who shared simi-
lar attitudes toward life and who organized
under a system of law and government.
Many theories developed about where
sovereignty came from. One was the divine
right theory just discussed. Under this
system a king who got his power from God
was the absolute ruler and had a monopoly
over the administration of justice.2
A second theory developed by the
Englishman, John Locke (1632-1704), was
that sovereignty evolves when the people of
a nation consciously make a contract with
a ruler or king to govern them. According
to Locke, the people of a nation grant to a
central government or ruler the power to
govern them. At the same time, they re-
serve certain individual rights which no cen-
tralized government can take away.3 One
can see that the political theories of John
Locke heavily influenced the founding
fathers of the United States government.
A third theorist who greatly influenced
European thought was the Frenchman.
Jean Jacques Rousseau. Rousseau devel-
oped the "Social Contract" theory of
sovereignty. This states that sovereignty is
derived from an agreement among the peo-
ple of a nation to combine their individual-
ity into a General Will. Sovereignty, ir;
other words, is the Genera] Will or common
interest which binds people together. It
is sacred and absolute. According to
Rousseau, the General Will consists of a
sense of membership, a feeling of commun-
ity and responsibility, and the actual par-
ticipation of people in public affairs.
Although the modem concepts of sover-
eignty were formally developed and written
about by European philosophers and politi-
cal scientists, the ideas associated with
sovereignty are part of many cultures.
Throughout the world, people who live
together, who come from similar cultural
backgrounds, and who share common
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attitudes toward life feel they have the
right to be sovereign. Thus, the word is
used today to mean the special quality that
nations have which enables them to govern
themselves.
one billion dollars in foreign aid annually.
Nevertheless, while India may be less"
"powerful" than those nations which lend
her support, she is a sovereign nation.
C. Sovereignty and D. The International
Independence
Does sovereignty mean complete inde-
pendence? Again in the ideal sense, sover-
eignty means the absolute or supreme
power of a people to govern themselves,
completely independent from interference
by or involvement with other sovereign
nations. Yet no nation in the world today
is completely independent. Our industrial-
ized world of mass communications, global
transportation, and soaring populations
makes national isolation virtually impos-
sible. Economic and political considera-
tions, such as the need for raw materials
or military assistance, make nations depen-
dent upon each other. In reality, the eco-
nomic dependence of one nation on
another often leads to political limitations
as well. Consequently, even such large and
powerful countries as the United States and
the Soviet Union are limited in their capac-
ity to act by the small oil-rich nations of
th: world. This dependence has been con-
unually demonstrated during the energy
crisis of recent years.
Examples of nations which have semi-
dependent relationships with others are too
numerous to list. According to interna-
tional economic theory, it is neither pos-
sible nor desirable for a nation to be
economically self-sufficient.4 Consequent-
ly, nations rely on one another to provide
many human and industrial needs such as
grain, meat, minerals and oil. There are
many nations of the world whose tech-
nology is such that they cannot yet com-
pete effectively in the world trade market.
Thus, they must rely on aid from other
nations. India, for example, requires over
Recognition
off Sovereignty
We have talked about nations being
sovereign; we have talked about interde-
pendence among nations; we have talked
about economic and political power. One
might then ask, "Isn*t a nation's sover-
eignty dependent upon whether or not
other nations of the world recognize it as
sovereign?"
In theory, the answer to this question is
"no." It has been a common practice for
nations to refuse to "recognize" the exis-
tence of another nation because of the type
of government the nation has or because of
certain political actions taken by a nation.
That nation's sovereignty, however, is no
less real because other nations refuse to
recognize its existence. The key is whether
the people within the nation support its
existence. The People's Republic of China
is a good example of this. For almost thirty
years the United States has refused to
officially recognize the existence of the
People's Republic of China. Yet it still
exists; it is no less a reality.
But the recognition of a nation's sover-
eignty by other nations can strengthen the
claim to sovereignty and alter in a positive
way that nation's relations with the rest
of the world. Certainly, if no other coun-
tries in the world will recognize a particular
nation, it may have difficulty in providing
for its people. But if it is accorded recog-
nition as a sovereign, its stature among
nations increases, it can trade its products
in the world market, and it is subject to less
interference in its internal affairs.
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The problem with international recogni-
tion of sovereignty is that there is no gen-
erally accepted formula for determining
which nations are in fact sovereign and no
formula for when recognition should be
given or withheld. People and governments
often neglect to examine the basis for their
conclusions about which nations are sover-
eign and which are not. If a nation in fact
operates as a sovereign with the consent of
its people that nation is a sovereign nation,
whether it is recognized as such or not.
E.How is Sovereignty
Related to Nations,
Government*
Politics?
Some people fall into the trap of equat-
ing sovereignty to nationhood, government
or politics. WhOe sovereignty, nationhood,
government, and politics are related, it is
important to remember that sovereignty is
absolute and comes before nations, govern-
ments, and politics In theory, sovereignty
is the supreme power which binds a nation
together. It cannot change. The manifes-
tations of sovereignty (nations, govern-
ments, politics) can change and take on
different forms from time to time.
Before we end out discussion about the
meaning of sovereignty, let's briefly define
these other terms which are frequently
confused with sovereignty.
What is a Nation? The American Heri-
tage Dictionary defines a nation as "a
people, usually the inhabitants of a
specific territory, who share common
customs, origins, history and frequently
language or related languages."5 Web-
ster's says that a nation is "a community
of people composed of one or more
nationalities and possessing a more or
less defined territory and government."6
Webster's also says that a nation is "a
tribe or federation of tribes (as of Amer-
ican Indians)."7
What is Government? Government is the
system or machinery through which a
political unit or nation exercises its
sovereignty.
What is Politics? Politics b the art cf
interpreting the will of the people and
influencing the actions and functions of
government.
What is Sovereignty. Again? Sovereignty
is the supreme power from which all
specific political powers are derived.
Sovereignty is the inherent power that
causes-people to>feand together to form
a nation and govern themselves.
F. What are the
Powers Exercised
by Sovereign
Nations?
Sovereignty has the most meaning in a
practical sense when we look at the sover-
eign powers exercised by a government. So
the most basic power of a sovereign people
is the power to select their own form of
government.
What kind of government it is or how it
functions does not affect the sovereignty
of the nation. Throughout the world,
democracies, monarchies, theocracies, and
dictatorships all exercise sovereign powers
to one extent or another.
The exact methods of governing also
vary widely. Some governments operate
under written constitutions, others under
customary or spiritual laws handed down
from, generation to generation. Some have
highly structured institutions, others have
relatively simple, informal organizations.
Many nations operate under a system
which allows for orderly change in leaders
and powers. A change in the form or pro-
Indiui Sovereignty
TV-24
-------
cedures of government or in one of its
institutions, however, does not affect the
sovereignty of a nation.
In addition to the power to select a form
of government, sovereign nations have
many other powers necessary for self-
government. Among these powers may be
the following:
1. The power to make and enforce
laws.
2. The power to define and regulate
the use of its territory.
3. The power to determine member-
ship or citizenship.
4. The power to regulate trade within
its borders, among its members
and between its members and those
of other nations.
5. The power to impose and collect
taxes.
6. The power to appropriate monies.
7. The power to regulate domestic
relations (including marriage, di-
vorce, adoption).
8. The power to regulate property.
9. The power to establish a monetary
system.
10. The power to make war and peace.
11. The power to form alliances with
foreign nations through treaties,
contracts and agreements.
There is no magic formula about how
many and which of these powers a nation
must exercise in order to be sovereign. How
and if a nation uses any or all of these
powers is dependent on many things, in-
cluding: (1) the will and needs of the peo-
ple; (2) the history and religion of the
people; (3) internal and external economics;
(4) internal and external politics. A nation
may be. able to operate well, for example,
without exercising the power to make war
or print money. It may choose to have
another nation exercise certain of the
powers for it. Certainly, the greater number
of powers a nation gives up or loses to
another, the more interference it may
expect in its internal affairs. But this does
not necessarily mean that it has given up its
sovereignty. Indeed, it would be a sovereign
act for a nation to decide to give up some"
of its sovereign powers or to temporarily
not exercise them. According to principles
of international law, a nation may do this
without losing its place in the family of
nations.
A good example of a European nation
giving up certain powers is San Marino. San
Marino, one of the world's smallest nations,
is located completely within the boundaries
of Italy. In 1862, the tiny nation entered
into a "treaty of peace and friendship"
with Italy. By this treaty, Italy agreed to
provide protection for San Marino, which
has a land area of 23.5 square miles and a
population of 20,000. In addition, San
Marino receives financial assistance from
Italy and uses the Italian lira as its
monetary unit. In return, San Marino
agreed to let Italy handle much of its inter-
national affairs. So San Marino gave up
some of its powers in return for services
and benefits which it felt were desirable for
its people. San Marino is still a sovereign
nation which enjoys a substantial amount
of independence. In fact, it is a member of
the International Court of Justice.
G. Are Indian Nations
Sovereign?
Anthropologists estimate that at the
time European explorers first arrived on
the North American continent there were
about one million Indians living in the area
now comprising the United States.8 They
were organized into over 600 different
tribes, bands, and groups and had thriving
social, political, and cultural institutions.9
Although they shared certain cultural char-
acteristics and attitudes toward life, each
group was distinct from the others.
Some, for example, had loosely struc-
tured governments in which local or band
leaders exercised most of the political
power. Others had hereditary systems of
government in which governing power was
Institute for the Development of Indian Law
-------
passed from one generation to another.
Some had individual leaders whose power
flowed from religious sources.
Most Indian governments were dem-
ocratic in the sense that power was
spread among several individuals or institu-
tions.
The Iroquois Confederacy was an ex-
ample of a strong Indian governmental
system. Formed as an alliance to keep
peace among the Mohawks, Senecas,
Oneidas, Cayugas, and Onondagas, the
Confederacy eventually controlled half of
the area east of the Mississippi River. The
Confederacy's governing council was com-
posed of representatives of member nations.
It was given certain sovereign powers by
the member nations. This arrangement per-
mitted member nations to exercise all
sovereign powers not delegated to the Con-
federacy, including the power of local self-
government.1 °
AD of the colonial powers and
later the United States... recog-
nized the sovereignty of Indian
nations by entering into over
800 treaties with Indians.
This confederacy concept, where politi-
cal power flowed up from a sovereign peo-
ple through units of local government to a
central government, was an extraordinary
political achievement. The confederacy
brought peace and stability to its members
for over 200 years. And this was during a
time when much of the rest of the world
was in political and economic turmoil.
The democratic ideas which the Iroquois
and other Indian nations had were new to
western political theory.1' But Thomas
Jefferson and other writers of the U.S.
Constitution recognized their value. In fact,
some of the democratic ideas contained in
the Constitution were borrowed from
Indians.12
Additional evidence of the national
character of Indian nations is found in the
attitudes of Indian people. In 1838, the
Cherokee people were facing eviction from
their traditional lands by the United States
government. In an attempt to prevent
forced removal, the Cherokees passed a
resolution defending their right to control
their own affairs:
The title of the Cherokee peo-
ple to their lands is the most
ancient pure, and absolute known
to man; its date is beyond the
reach of human record; its valid-
ity confirmed by possession and
enjoyment antecedent to all pre-
tense of claim by any portion of
the human race. The free consent
of the Cherokee people is indis-
pensable to a valid transfer of the
Cherokee title. The Cherokee
people have existed as a distinct
national community for a period
extending into antiquity beyond
the date and records and mem-
ory of man. These attributes
have never been relinquished by
the Cherokee people, and cannot
be dissolved by the expulsion of
the Nation from its territory "by
the power of the United States
government.13
But regardless of the particular form of
organization, all the Indian nations exercised
the; powers of sovereign nations. They
recognized the sovereignty of one another
by forming compacts, treaties, trade agree-
ments and military alliances.
All of the colonial powers, and later the
United States, also recognized the sover-
eignty of Indian nations by entering into
over 800 treaties with Indians. Under inter-
national law. treaties are a means for sover-
eign nations to relate to each other, and the
fact that Europeans and the United States
made treaties with Indian nations demon-
strates that they recognized the sovereignty
of Indian nations.
In Worcester v. Georgia, the United
States Supreme Court said that ". . . the
Indian Sovereignty
-------
very fact of repeated treaties with them
recognizes {the Indians' right to self-
government] and the settled doctrine of
the law of nations is that a weaker power
does not surrender its independence—its
right to self-government—by associating
with a stronger, and taking its protec-
tion."14 The power of Indian nations to
wage war was pointed out by the Supreme
Court on several occasions as evidence of
their sovereign character.15 And when
critics complained that Indian tribes were
not "nations" in the European sense, the
Court responded that:
The words "treaty" and "nation"
are words of our language, sel-
ected in our diplomatic and legis-
lative proceedings, by ourselves,
having each a definite and well
understood meaning. We have
applied them to Indians as we
have applied them to other na-
tions of the earth. They are ap-
plied to all in the same sense.16
While the exercise of sovereign powers
by Indian governments has been restricted
to some extent (see following section),
there can be no doubt that the United
States and other nations have recognized
the inherent sovereignty of Indian nations
and their right to self-government.17
H.What are the
Sovereign Powers
Exercised by
Indian Nations?
Throughout the political history of
Indian nations, the colonial powers, the
United States and state governments,
the struggle over which government may
exercise sovereign powers in a particular
situation has been crucial. Which govern-
ment prevailed was sometimes determined
". . -O«r mi boo wurecpected by ml wfco came t> contact
wfefc ft. for we had the ability sx vtfl ms the mange to
defead tad •"*•*•"• our rights of teoitoty, penon tad
property aguut the world...."
Black Hawk. See end Fox
by military power, and sometimes by polit-
ical bargains in the form of treaties and
agreements. The result of these struggles
was that powers were dispersed among the
various units of government.
The distribution of governmental powers
between the federal government on the one
hand and the original 13 states on the other
hand was made in the U.S. Constitution.
The states delegated certain powers to the
federal government and retained others.
Included in this delegation was the power
to make treaties with Indian nations.
The distribution of governmental powers
between the United States government and
each Indian nation was somewhat similar.
It may be viewed as a process of dividing
up a bundle of sticks. Each stick repre-
sented a sovereign power. So there was a
power to declare war, a power to impose
taxes, a power to regulate property, and so
forth. Originally the tribe held the entire
bundle of sticks and so had complete
power over the geographical area it con-
trolled and the people living within that
area. It was an absolute sovereign.
Over the decades and for various reasons,
each tribe granted certain of those powers
to the United States government in ex-
Institute for tfte Development of Indian Law
TV-27
-------
change for certain benefits and rights. This
was done by treaty or agreement. In other
cases some powers were taken from the
tribe by war or coercion.
The point to remember is that all of the
powers were once held by the tribes, not
the U.S. government Whatever powers the
federal foverament may exercise over
Indian nations it received from the tribe,
not the other way around. This is impor-
tant became if the United States gave
sovereign powers to the Indian nations,
then it could also take them away when-
ever and however it wanted to. Some peo-
ple say this is the case.
The law is dear, however, that an Indian
nation possesses aU the inherent power: if
any sovereign government except as those
powers may have been qualified or limited
by treaties, agreements, or specific acts of
Congress.1* Therefore, whfle tribes have
lost some of the "sticks in the bundle"
they retain aU the rest So they can and do
exercise many sovereign powers.
Included among these inherent powers
of Indian governments are the following:
1. The power to determine the form
of government
2. The power to define conditions for
membership in the nation.
3. The power to administer justice and
enforce laws.
4. The power to tax.
5. The power to regulate domestic
relations of its members.
6. The power to regulate property use.
1. The Power to
Determine Form
of Government
As previously stated, the most important
attribute of a sovereign people is the power
to choose the form of government under
which they wish to live. Since sovereignty
means the power or authority to govern,
and tribes are sovereign, they must be
allowed to choose the manner and form by
which they will govern.
Since 1832 the Supreme Court has been
fairly consistent in acknowledging that
Indian nations have the power to develop
forms of self-government in accordance
with their political and cultural history.19
Many Indian nations have chosen to adopt
governmental models similar to that of the
United States. Others, such as the Six
Nations Confederacy and the Pueblo tribes,
for example, have chosen to retain their
traditional forms of government. In Pueblo
of Sana Rosa v. fa//,20 the Supreme Court
confirmed that tribes are not required to
function under a "normal" constitutional
government if they elect not to.
Other Supreme Court cases have said
that since the states have no duties or re-
sponsibilities to Indian nations, they can-
not levy taxes on Indian traders operating
on Indian lands and thus interfere with the
right of Indian self-government21
Associated with this power to determine
the form of government are the following
rights:
a. The right to pass laws, interpret
laws, and administer justice.
b. The right to define powers and
duties of governmental officers.
c. The right to determine whether acts
done in the name of the govern-
ment are authoritative.
d. The right to define the manner in
which governmental officers are to
be selected and removed.
There are, however, certain federal con-
straints on how tribal governments func-
tion. Unlike all other governmental units in
America and because of their unique status
as sovereigns, Indian nations are not bound
by the Bill of Rights in the U.S. Constitu-
tion. In 1968, however, Congress passed
the Indian Bill of Rights,22 which places on
tribal governments and tribal courts restric-
tions similar but not exactly like those
placed on the U.S. and state governments
by the Constitution. Enactment of this law
was met with resistance in the Indian com-
8
Ind'otn Sovereignty
IV-28
-------
munity but it remains in force today. For
a further discussion of this act and its pro-
visions see Chapter II of this book.
2. The Power to Define
Conditions for
Membership in
the Nation
An Indian government has, in most cases,
complete authority to determine its mem-
bership. Standards for tribal membership
may be established by custom, historical
practice, written law, treaties with the
United States, or agreements between
Indian nations. Tribal governments have
exercised this power by establishing proce-
dures for:
a. Abandonment of membership.
b. Adoption of non-Indians.
c. Adoption of persons holding citi-
zenship in another Indian nation.23
But the Secretary of Interior has, in certain
circumstances, assumed authority to deter-
mine tribal membership. For example, by
the Act of June 30,1919,:« Congress gave
the Secretary power to draw up a final
membership role for purposes of distri-
buting tribal funds.
Unfortunately, the language of the Act
is very broad: ". . . wherever in his (the
Secretary's) discretion such actions would
be for the best Interests of the Indians— "
(emphasis added). Despite such broad
authority, many court cases have held that
an Indian nation has complete authority to
determine all questions of membership
unless there is express Congressional legis-
lation to the contrary.25 In an 1888 Opin-
ion of the Attorney General it was empha-
sized that Indian people should determine
membership for themselves, since they
would ultimately participate in the benefits
of that relationship.26
A 1927 case decided by the Court of
Appeals of New York declared that the
power of an Indian government to decide
questions of membership comes from its
status as a sovereign nation:
.. .(TJhe right to enrollment...
depends upon the laws and usages
of the Seneca Nation and is to be
determined by that Nation for
itself without interference or die- •
tation from the supreme court of
the state.
The conclusion is inescapable
that the Seneca tribe remains a
separate nation; that its powers
of self-government are retained
with the sanction of the state,
that. the .•ancient customs and
usages of the nation, except in a
few particulars remain, unabol-
ished, the law of the Indian land;
that in its capacity of a sovereign
nation, the Seneca Nation is not
subservient to the orders and dir-
ections of the courts of New
York State; that above all, the
Seneca Nation retains for itself
the power of determining who
are Senecas, and in that respect
it is above interference and dic-
tation.27
In 1924 Congress passed an act which
gave U.S. citizenship to all Indians living
within the territorial limits of the United
States.28 While there can be no doubt that,
according to U.S. law, aD Indians are U.S.
citizens, many Indians refuse to accept this
grant of citizenship. They wfll not accept
it because of the fear they would be forced
to give up their citizenship in an Indian
nation. The fear is not well-founded, how-
ever, since the concept of dual citizenship
is well-established in both domestic and in-
ternational law. Thus Indians can be U.S.
citizens as well as citizens of an Indian
nation. The courts have held that the 1924
Citizenship Act did not destroy the ex-
istence or sovereignty of Indian nations or
their jurisdiction over tribal members.29
Institute for the Development of Indian Law
IV-29
-------
3. The Power to
Administer Justice
and Enforce Law*.
As sovereign governments, Indian nations
generally have the power to: (1) make laws
governing the conduct of persons, both
Indians and non-Indians, within reserva-
tions;30 (2) establish bodies such as tribal
police forces and courts to enforce those
laws and administer justice;31 (3) exclude
non-tribal members from the reservation,32
and (4) regulate hunting, fishing, and
gathering.33
The power of tribes to make their own
laws has been recognized in a number of
areas including domestic relations, taxation,
and property use.34 The power of Indian
tribes to make and enforce laws also extends
generally to the exercise of criminal juris-
diction over persons who commit crimes on
the reservation.35
The power of a tribe to establish tribal
courts is also firmly established in the law.
In Iron Crow v. Oglala Sioux Tribe,36 a
federal court of appeals upheld the juris-
diction 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 land on the reservation. The court
stated that the power of the tribe to estab-
lish courts to enforce its laws was not de-
pendent upon any federal law, but was in-
herent in the tribe's sovereignty.
Another aspect of an Indian tribe's
power to administer justice is its power
over the extradition of persons accused of
crimes. (Extradition is the surrender of a
person accused of a crime to another gov-
ernment for trial.) A federal appeals court
has upheld the power of a tribal govern-
ment to determine whether or not it will
extradite an Indian within its jurisdiction
for trial in another state.37 In that case,
the court said that extradition was governed
by tribal law, not the law of the state.
Although the power of Indian tribes to
make and enforce their laws has been recog-
nized as an aspect of Indian sovereignty,
federal courts have said that this power is
subject to limitation by treaty or express
acts of Congress.38 For example, three
federal laws-the Major Crimes Act,3 9 Pub-
lic Law 280,40 and the Indian Civil Rights
Act4' -limit the power of Indian tribes to
make and enforce laws free from interfer-
ence. The Major Crimes Act allows certain
major crimes, including murder, rape, and
robbery, to be tried in federal court even
though the crimes occur on the reservation.
Under Public Law 280, Congress has author-
ized certain states to assume civil and
criminal jurisdiction over Indian reserva-
tions within those states. And under the
Indian Civil Rights Act, tribal governments
and courts must guarantee certain individ-
ual rights, such as right to trial by jury in
criminal cases.
But to the extent that Congress has not
expressly limited the exercise of power,
Indian governments remain free to exercise
their sovereign power to administer justice
and enforce their own laws.
4. The Power to Tax
Generally, a tribe has the power to col-
lect taxes from its members and from non-
Indians residing on or doing business on the
reservation, unless a treaty or act of Con-
gress places restrictions on the exercise of
that power. Like other sovereign powers, the
powerio tax is not a privilege or right given
to Indian nations by the federal govern-
ment. It is an inherent sovereign power.4 2
The power to tax has long been recog-
nized by the federal government to include
the power to tax both members of the na-
tion and non-Indians within the reserva-
tion. A 1934 opinion of the Solicitor of the
Interior Department states:
Chief among the powers of sov-
ereignty recognized as pertaining
to an Indian tribe is the power of
taxation. Except where Congress
has provided otherwise, this
10
Indian Sovereignty
IV-30
-------
power may be exercised over
members of the tribe and over
non-members, so far as such non-
members may accept privileges
of trade, residence, etc.. to which
taxes may be attached as con-
ditions.4 3
The federal courts have also upheld the
taxation powers of Indian governments.
Early court cases said that since Indian na-
tions could exclude non-Indians from their
territory, they could also set the terms,
such as payment of a tax, under which non-
Indians would be permitted to enter and
conduct business within Indian territory.44
Later cases have simply held that the power
to tax is "an inherent attribute of tribal
sovereignty which continues unless with-
drawn or limited by treaty or by act of
Congress *'45
While few Indian governments exercise
their power to tax, they still have that pow-
er.4 6 Powers of sovereign governments are
not given up by nonuse.47 The power to
tax may become much more important to
Indian governments in the future as a means
of providing services to its members, reg-
ulating non-Indian activities on the reserva-
tion, and preventing the imposition of state
taxes within the reservation.48
5.The Power to Regulate
Domestic Relations
of Its Members
Power to govern the domestic relations
of its members is another aspect of an
Indian nation's inherent sovereignty.49 In-
cluded in this power is the authority to
make rules governing marriage, divorce.
illegitimacy, adoption, guardianship, and
support of family members.
Marriages in accordance with Indian laws
or customs are just as valid as marriages in
accordance with state laws and have been
recognized as valid by federal statutes.50
Even when Indian law and custom have
permitted polygamy, the power of the tribe
to approve such marriages has been upheld
against state interference:
We must either hold that there
can be no valid Indian marriage,
or we must hold that all marriages
are valid which by Indian usage
are (regarded as valid). (The
Indians] did not occupy their
territory by our grace and per-
mission, but by a right beyond
our control. They were placed.
by the constitution of the United
States beyond our jurisdiction,
and we had no more right to con-
trol their domestic usages than
those of Turkey or India.51
The power of an Indian nation to grant
divorces, adoption, and guardianship
according to tribal law has also been rec-
ognized by the courts.5 2
6. The Power to Regulate
Property Use
Indian nations, as both sovereign govern-
ments and as landowners, generally have
the power to regulate the use of property
by their members and by non-Indians with-
in their jurisdiction.53 The courts have
held that this is true except where that
power has been limited by Congress or by
constitutional provisions.54 An Indian
government may exercise its power to reg-
ulate property use in a variety of ways,
such as licensing provisions, zoning laws
and rules for the inheritance of property.
The United States Supreme Court stated
in United States v. Mazurie that"... Indian
tribes are unique aggregations possessing
attributes of sovereignty over both their
members and their territory. . . ." 55 In
that case the Court upheld a criminal con-
viction for operating a bar on an Indian
reservation without complying with the
tribe's liquor licensing ordinance.
Institute for the Development of Indian Law
11
TV-31
-------
The power of Indian governments to
regulate property use within the reserva-
tion through tribal zoning laws free from
state interference has also been recognized,
even in those states in which Public Law
280 applies.5* In striking down the appli-
cation of a county zoning ordinance within
the Santa Rosa reservation, a federal court
of appeals stated that **. .. extension of
local jurisdiction is inconsistent with tribal
self-determination and autonomy."57
Indian nations, as sovereigns, also have
the power to regulate the inheritance of
property of their members.5* Originally
this power was absolute59 but it has been
restricted somewhat by federal laws relat-
ing to the inheritance of restricted Indian
lands.60 Federal law does not, however,
limit the power of Indian nations to govern
the inheritance of unrestricted lands or
personal property.
Conclusion
The above explanation of sovereign
powers of Indian nations is not intended to
be a complete list of powers. Nor is it in-
tended to suggest that all tribes exercise
all of these powers. The powers a particular
nation does or does not exercise depends
upon its history, its relationship with the
United States, the status of its tribal
government and the wishes of its people.
Many Indian people believe that Indian
nations could and should return to the
treaty-making process in their relationship
with the United States. There is some basis
for this belief because even though the
United States Congress passed an act in
1871 prohibiting treaty-making between
the United States and Indian nations,61 it
continued to make "agreements" with
them for decades after that.
"Treaties" were negotiated by the
Executive and ratified by the Senate.
"Agreements" were negotiated also by the
Executive but they were ratified by both
the Senate and the House of-Representa-
tives. Legally though there is little differ-
ence between them. U.S. courts have rec-
ognized that the 1871 act merely changed
the procedure for approving negotiated
settlements with Indian nations.62 Trea-
Many Indian people believe that
Indian nations could and should
return to the treaty-making pro-
cess in their relationship with the
United States.
ties" and -agreements" have the same
legal effect Furthermore, the 1871 act did
not alter the legal force of the treaties
made before that act63
The'last "agreement" made between an
Indian nation and the United States govern-
ment was in 1911. There is no reason, how-
ever, why the process of making agreements
between Indian nations and the United
States could not resume today. In fact,
under Public Law 93-638 it has already
resumed in a way.64
Some Indian people also say that Indian
nations should resume making treaties with
other nations of the world. While the
power to do so may exist, some tribes
have -agreed in treaties to restrict their
right to exercise it For example, several
treaties have been interpreted by the courts
to mean that by accepting the "protection"
of the United States, certain Indian nations
have relinquished their powers to deal with
other nations of the world. For example,
in the Treaty with the Kaskaskias:
The United States will take the
Kaskaskia tribe under their im-
mediate care and patronage, and
will afford them a protection as
effectual against the other Indian
tribes and against all other per-
sons whatever as is enjoyed by
their own citizens. And the said
Kaskaskia tribe do hereby engage
to refrain from making war or
giving any insult or offense to
.any foreign nation, without hav-
12
Indian Sovereignty
IV-32
-------
ing first obtained the appropria-
tion and consent of the United
States.*5
The Supreme Court has given a similar
interpretation to the Treaty of Hopewell
between the Cherokee Nation and the
United States:
The undersigned Chiefs and War-
riors, for themselves and all parts
of the Cherokee nation, do ack-
nowledge themselves and the said
Cherokee nation, to be under the
protection of the said United
States of America, and of no
other sovereign whosoever; and
they also stipulate that the said
Cherokee nation will not hold
any treaty with any foreign
power, individual state, or with
individuals of any state.66
In other treaties Indian governments
agreed to restrictions upon trade and the
sale of lands. In some cases the restrictions
were explicit and in others they were
vague. In the Treaty of the Osage of
November 10, 1808, the Osage nation gave
up the right to:
.. .(C)ede, sell or in any manner
transfer their lands to any for-
eign power, or to citizens of the
United States or inhabitants of
Louisiana, unless duly authorized
by the President of the United
States to make the said purchase
or accept the said cession on be-
half of the government."6 7
Many treaties implied that regulation of
trade was relinquished by the Indian nation
with a phrase such as follows:
It is agreed on the part of the
Cherokees, that the United States
shall have the sole and exclusive
right of regulating their trade.68
Sometimes, Indian nations were prohibited
from trading outside the boundaries of the
United States as in the Treaty with the
Nisqualli, Puyallup, etc. of December 26,
1854:
The said tribes and bands finally
agree not to trade at Vancouver's
Island, or elsewhere out of the
dominions of the United States;
nor shall foreign Indians be per-
mitted to reside in their reserva-
tions without consent of the
superintendent or agent. . . ,69
It is possible that a return to the treaty
relationship or at least some variation of
it, along with an accompanying recognition
of sovereignty, is the only way to prevent
non-Indian governments from interfering in
the affairs of Indian nations. For example,
in November, 1972, the Trail of. Broken
Treaties Caravan presented a paper to the
U.S. government in which a call for the
restoration of the treaty relationship was
made. Central to the demands made in the
20-point paper was the insistence that the
U.S. reopen treaty negotiations with Indian
nations. The leaders of the Caravan pointed
out that there is no valid reason why Indian
nations cannot make treaties or reach
agreements with the U.S. government
today. Treaty-making could start again if
Congress repealed the 1871 act. And Con-
gress has never specifically prohibited the
making of "agreements" with Indian
governments. Both the U.S. government and
Indian governments apparently have the
legal capacity to reach new agreements
which would clarify or redefine their rela-
tionship. New treaties or renegotiated old
treaties would form the basis for a legal
relationship in which Indian sovereignty
would be preserved.
For further discussion of treaties and
other issues facing Indian nations today,
see Chapter HI of this book.
Institute for the Development of Indian Law
13
IV-33
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IV-34
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ENTRANCE ONTO THE RESERVATION WILL BE DLEMLD
TO IMPLY CONSENT TO SUBMISSION TO THE LAWFUL
JURISDICTION OF THE SUQUAMISH INDIAN TRIBE
I.
AN OVERVIEW OF INDIAN
JURISDICTION
A. INTRODUCTION
From time immemorial the governments of
Indian nations have been meeting the varied
needs of their people by passing laws, by
enforcing those laws, and when necessary by
resolving conflicts. The means by which any
one Indian nation performs these three basic
governmental functions (legislative, executive
and judicial) depends on its unique culture,
political and economic circumstances and his-
torical relationships with other nations of the
world. Like any national government, the right
or authority of an Indian nation to govern itself
stems from its sovereignty.
Sovereignty is the "supreme power from
which all other specific political powers are
Institute for the Development of Indian Law
IV-35
-------
derived."1 Since Sovereignty is inherent and
comes from within a people and culture, it is
unique in every case. It is this collective sov-
ereign will that gives rise to self-government
and the exercise of governmental powers. Such
powers include choosing a form of govern-
ment, making and enforcing laws, regulating
the use of territory, determining membership,
regulating trade, collecting taxes, appropriat-
ing monies, regulating domestic relations and
forming alliances with foreign nations.
The sovereignty of Indian nations was rec-
ognized by the earliest European colonists. One
of the first sovereign acts of the newly formed
United States government was to recognize the
sovereignty of Indian tribes by making treaties
with them.2 Indeed the United States Govern-
ment has repeatedly recognized the sover-
eignty of Indian nations through statutes,
administrative policies and court decisions.
Nevertheless, since the coming of the first
Europeans there has been a constant struggle
between Indian, colonial, federal and state
governments over just who may exercise sov-
ereign governmental powers in particular fact
situations. This "struggle" which makes up the
meat of that extremely complex area of Federal
Indian Law known as jurisdiction, continues
to this day. Who has jurisdiction is important
because it determines who will make the laws
and who will enforce them. It also determines
who will control the land, the natural resources
and the every day lives of the people who live
on the land. In other words, whether or not an
Indian nation has jurisdiction in certain situa-
tions will affect its ability to continue its polit-
ical tradition and way of life now and in the
future.
This chapter is intended to provide an over-
view for attorneys and laymen alike on this
confusing and often emotionally charged sub-
ject. As such, it will attempt to give simple and
straightforward answers to such questions as:
What is jurisdiction? Who has jurisdiction in
Indian Country? Why do people fight over who
has jurisdiction? In addition, the chapter will
highlight the general state of the law which is
discussed in more detail in the four remaining
chapters of this book.
B. WHAT IS
JURISDICTION
Jurisdiction is a common word to officials of
tribal governments. It often brings to mind
images of courts and police and conflicts
between Indian governments and counties,
states and/or federal governments. Yet when
defining jurisdiction, people give many differ-
ent answers. This illustrates the complexity of
the subject as well as the confusion which sur-
rounds it. For the purpose of this book, juris-
diction shall be defined as the legal power or
authority of a government to rule or govern
its people and territory. Jurisdiction deals with
the powers that government uses to control
people and property within distinct geograph-
ical boundaries. Jurisdiction is one of the spe-
cific political powers derived from sovereignty.
Regardless of the form of government, it can
generally be stated that all governments exer-
cise legislative (make laws), executive (enforce
laws) and judicial (interpret laws) functions.
All three of these governmental functions are
involved in the exercise of jurisdiction. Juris-
dictional powers are broad and cover such things
as defining crimes and punishment for those
crimes, and regulating such things as domestic
relations, hunting and fishing, taxation, zoning
and economic development.
1. Criminal and Civil
Jurisdiction
Since it is customary in the American legal
system to differentiate between matters of
criminal law and civil law, it is also customary
to treat matters related to criminal jurisdiction
or civil jurisdiction separately. Criminal law
deals with wrongs against society at large.
Crimes are prosecuted by governments and can
involve punishment in the form of fines and/or
imprisonment of the violator. Civil law, on the
other hand, pertains to the rights of the indi-
vidual citizens of a nation. These rights affect
such things as domestic relations, land use and
control of property. In civil cases, govern-
ments provide a forum for settling disputes
between individuals (including corporations) by
Indian Jurisdiction
IV-36
-------
ordering that a wrong be corrected and/or dam-
ages be paid.
Criminal jurisdiction refers to a govern-
ment's authority to pass laws making certain
acts criminal. It also refers to the power to
enforce such laws by arresting, prosecuting,
fining and/or jailing individuals who are violat-
ing them. Civil jurisdiction refers to the author-
ity of governments to enact civil regulatory
laws such as taxing, zoning and hunting and
fishing codes. It also refers to the authority of
tribal, federal or state courts to decide civil
cases. Civil cases can be broadly defined as
any law suit that is not a criminal prosecution.
A divorce proceeding is an example of a civil
case.
2.
Exclusive and Concurrent
Jurisdiction
Criminal or civil jurisdiction within Indian
Country can be either exclusive or concurrent.
Exclusive jurisdiction means that only one
government, be it tribal, federal or state, has
the right to exercise jurisdiction. For instance,
tribal courts have been found to have exclusive
jurisdiction to decide a child custody dispute
where all the parties involved were tribal mem-
bers residing on the reservation.3 Concurrent
jurisdiction means that two or more govern-
ments can assume jurisdiction over the same
thing at the same time. This is frequently the
case in matters related to Indian jurisdiction.
3. "Indian Country"
As discussed above, jurisdiction has a terri-
torial dimension. In order to effectively exer-
cise sovereign powers, a government must have
a place or territory within which to do so. Under
Federal Indian Law, "Indian Country" is the
common term for such a place. A federal stat-
ute has classified three types of land holdings
as "Indian Country": (a) reservations, (b)
dependent Indian communities and (c) Indian
allotments.4
a. Reservations
The historic concept of Indian Country is
"roughly equated with Indian reservation
boundaries because lands within those bound-
aries were held in trust for the sovereign entity
of the tribe. "'These reservations usually rep-
resent the aboriginal territory of an Indian nation
and/or lands negotiated for by an Indian gov-
ernment with the United States or a colonial
government. According to the statute, Indian
Country includes "all land within the limits of
any Indian reservation under the jurisdiction
of the United States government, notwith-
standing the issuance of any patent, and includ-
ing rights-of-way running through the reser-
vation."6
b. Dependent Indian
Communities
The late 19th century ushered in the allot-
ment period and the development of other types
of Indian land holding. No longer was the Indi-
an's relationship to his land base as clear and
simple as it had been with the aboriginal title
and possession7 and subsequent reservation
status. According to federal law, Indian Coun-
try also refers to "all dependent Indian com-
munities 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."8
The concept of "Dependent Indian Com-
munities" began in 1913 when the Supreme
Court in United States v. Sandoval held that
certain Pueblo lands were "Indian Country"
even though they were not part of a formal
Indian reservation9 and were held in communal
fee by the Pueblos. The important factor was
that the Pueblos were in a trust relationship
with the United States and federal laws enacted
for the protection of Indian tribes should be
applicable on Pueblo land.
In addition, the Supreme Court in United
States v. McGowan,™ held that Reno Indian
Colony in Nevada was Indian Country insofar
as it comprised federal land set aside for the
tribes. The Indians in the colony had "been
afforded the same protection by the govern-
Institute for the Development of Indian Law
IV-37
-------
ment as that given Indians in other settlements
known as "reservations",11 and they too, as
the Pueblo Indians, looked to Congress as
trustee and protector.
c. Allotments
In addition to reservations and dependent
Indian communities, federal law includes as
part of Indian Country, all allotments, "the
Indian titles to which have not been extin-
guished, including rights-of-way running through
the same."12
In the late 19th century Congress was anx-
ious to dissolve Indian nations and civilize the
tribes by breaking up the Indian land base and
thereby passed legislation to accomplish that
goal.13 Tribally-held land was divided and sub-
divided with a certain acreage going to each
tribal member. After a certain period during
which this land was held in trust for the Indian,
he was then free to do whatever he wanted
with it. Although an inordinate amount of these
allotted lands were transferred to non-Indi-
ans." it is the unconveyed Indian allotments
to which Indian Country refers.15
It is important to remember that this defini-
tion of Indian Country was used originally by
the United States when referring to matters of
criminal jurisdiction. Today, however, the def-
inition is generally applied to civil cases as
well It is also important to note that because
of pending land claims16 and the history of treaty
violations by the United States,17 many Indian
nations disagree with the United States as to
the extent of their territories. Therefore, the
extent of "Indian Country" will vary greatly
depending on who is defining it. For practical
purposes, however, the above definition of
Indian Country will be used in this book,
although the definition itself has generated some
controversy.
C. THE STRUGGLE
FOR
JURISDICTION
Before we attempt to summarize the current
state of the law with respect to the jurisdiction
of Indian nations, let us first examine the
dynamics involved in the struggle for jurisdic-
tion among the usual cast of characters: tribal
governments, state governments, and the fed-
eral government. Jurisdictions! problems arise
when one government gets in the way of another.
Thus, prior to the arrival of the white man on
this continent, Indian governments had com-
plete and original jurisdiction over their people
and territory. From time to time, Indian gov-
ernments did find themselves embroiled in
jurisdictional conflicts with other Indian nations.
But it was not until the arrival of the Europe-
ans, the establishment of the federal govern-
ment, and the expansion of state governments
that jurisdictional conflicts became a very real
and ongoing threat to tribal self-government.
For social, political and economic reasons,
Indian nations want to make, enforce and inter-
pret laws concerning their people and territory.
It is natural for a people to want to control their
own lives, preserve their culture and promote
their own interests. State governments, too,
want to do things their own way for similar
reasons. Wearing two hats, the federal govern-
ment is frequently in the middle of conflicts
between the tribes and the states. Racism too
often muddies the already emotionally charged
waters.
In this section we will attempt to define the
political relationships among tribal, federal and
state governments and examine why each gov-
ernment feels entitled to assume some jurisdic-
tion in Indian Country.
- I
The Chief Justice and Associate Justices of the U.S. Supreme
Court, 1881
Indian Jurisdiction
IV-38
-------
1. Indian Governments vis a vis
the Federal and State
Governments
The basis for the American system of gov-
ernment is the United States Constitution which
was ratified in 1789. The Constitution estab-
lished a federal system of government. A fed-
eral system means that separate units of gov-
ernment agree to join together under one cen-
tral government. This is what happened when
the thirteen original colonies joined to form the
United States of America giving up many of
their individual sovereign powers to the cen-
tralized federal government.
Under Article VI of the Constitution the
national government has more power than the
various state governments, thus enabling it to
override state actions which conflict with the
policies and laws of the national government.
Article VI also gives the national government
the power to determine the nature of state polit-
ical institutions and to forbid the states from
exercising certain types of powers. For exam-
ple, states cannot make treaties with the other
nations. The 50 states have legal governments
with "residual" powers—those not delegated
to the United States by the Constitution, nor
prohibited by it to the states.18
For social, political and economic
reasons, Indian nations want to
make, enforce and interpret laws
concerning their people and ter-
ritory.
Indian tribes are sovereign nations existing
within the boundaries of the United States who
because of historical circumstances enjoy a
special relationship with the federal govern-
ment, not the states. In fact, within the Amer-
ican governmental system, Indian tribes enjoy
a status higher than states.19 The states cannot
interfere in this special relationship except
through representatives they elect to the fed-
eral government.
The basic characteristics for the relationship
between Indian governments and the United
States was established in the I830's in two cases
before the Supreme Court. In the first case.
Cherokee Nation, v. Georgia,10 the Cherokee
Nation brought suit to prevent the State of
Georgia from exercising jurisdiction over the
Cherokee Nation. In his decision. Chief Justice
John Marshall avoided the issue of federal-state
supremacy by declaring that the Cherokees
could not sue in the Supreme Court because
they were not a foreign nation within the mean-
ing of the Constitution. "They may, more cor-
rectly, perhaps be denominated domestic
dependent nations. . . . Their relation to the
United States resembles that of a ward to his
guardian."21
Only a year later in the case of Worcester v.
Georgia** the issue of Cherokee sovereignty
went to the Supreme Court a second time. In
this decision the Supreme Court declared that
Indian nations "... had always been consid-
ered as distinct, independent political com-
munities, retaining their original natural rights.
. . ." Writing for the majority. Chief Justice
Marshall did not refer to the Indians' depen-
dent status which he had described in the ear-
lier Cherokee case. On the contrary, he affirmed
the sovereignty of the Cherokee Nation when
he said that "the settled doctrine of the law of
nations is that a weaker power does not sur-
render its independence—its right to self-gov-
ernment—by associating with a stronger, and
taking its protection. . . ,"23 The court in this
decision rejected the idea that state laws could
have any force and effect on Indians within
tribal boundaries.
2. From the Point of View of the
Federal Government
The United States Government generally uses
three arguments to support its assumption of
jurisdiction over Indian territory: the federal-
Indian trust relationship, the plenary power
doctrine, and the doctrine of geographical
incorporation.
Today, the United States government con-
siders itself to have a trust or fiduciary rela-
tionship with Indian people and governments.
Growing out of treaties, court decisions, fed-
eral statutes and the Constitution itself, this
Institute for the Development of Indian Law
TV-39
-------
trust relationship can be defined as "the unique
legal and moral duty of the United States to
assist Indians in the protection of their prop-
erty and rights."*4
Unfortunately, one cannot turn to a written
document and find all the specific duties the
United States has under the trust relationship,
for it is too ill-defined, too vague, and too vul-
nerable to change for a detailed list to be accu-
rate for all tribes in all situations. There are,
however, three broad areas in which the trust
duties fall:
1) Protection of Indian trust property.
2) Protection of the Indian right to self-
government.
3) Provision of those social medical and
educational services necessary for the
survival of the tribe.
Congress is said to be the ultimate trustee in
the relationship. This means that only Con-
gress has the power to change and redefine the
scope of the relationship. Although it is often
assumed that the Bureau of Indian Affairs is
the trustee, the BIA is merely the principle
agent of the Congress in administering the trust
responsibility. Other federal agencies may also
act as agents.
In its endeavor to "protect" Indian people
and governments. Congress has seen the
necessity from time to time to pass laws which
enable the United States to assert jurisdiction
over them. Perhaps this sentiment is expressed
best in the Northwest Ordinance of 1787:
"The utmost good faith shall always
be observed toward the Indians; their
lands and property shall not be taken
from them without their consent;
and, in their property, rights, and
liberty, they never shall be invaded
or disturbed unless in just and law-
ful wars authorized by Congress, but
laws founded injustice and human-
ity shall, from time to time, be made
for preventing wrongs being done
to them and for preserving peace
and friendship with them."25
It is because the courts recognize that Con-
gress has these special trust duties with respect
to Indian nations that they have allowed Con-
gress broad power in Indian affairs. While.the
Constitution does not actually give the federal
government, and specifically the Congress, any
authority to govern Indian people in Indian
territory, the United States courts have come
to describe Congress' power over Indian tribes
as plenary. "Plenary" means complete or almost
absolute.
The Congress has used the plenary power
'doctrine to pass laws such as the Major Crimes
Act and Public Law 280 which, as we will see
in discussions below and throughout this book,
seriously infringed upon the exclusive jurisdic-
tion of the tribes.
Finally, United States courts have con-
vinced themselves that since an Indian nation's
territory is within the geographical boundaries
of the United States, the United States has
ultimate "title" to all lands which are held in
"trust" for the Indians. This theory of geo-
graphical incorporation has enabled the United
States to claim that Indian land is technically
federal land and thus the United States has a
right to assert jurisdiction over it.
3. From the Point of View of
Indian Nations
By virtue of the fact they were here first,
Indian governments have original jurisdiction
over civil and criminal matters within Indian
Country. This jurisdiction is derived from the
inherent sovereignty of each Indian nation. Since
Indian governments do not receive their sov-
ereignty from the United States, in their view
the United States has no right to assert juris-
diction over them. An exception to this feeling
would be in cases where they have specifically
granted jurisdiction to the United States in
treaties and agreements. In treaties many tribes
agreed to accept the general protection of the
United States. Nevertheless there are few
instances where tribes granted to the United
States exclusive jurisdiction over their affairs.*
Generally speaking, Indian nations have not
entered into special agreements with state gov-
Indian Jurisdiction
TV-AO
-------
ernments and therefore do not accept the juris-
diction of states over matters occurring within
their boundaries.
Indian people feel that Indian reservations
and trust lands were set aside by their ances-
tors for the exclusive use of future generations
of Indians. In the view of Indian governments,
however, without the ability to assert jurisdic-
tion over their people and territory, the future
of their tribe is in jeopardy.
By virtue of the fact that they were
here first, Indian governments
have original jurisdiction over civil
and criminal matters within Indian
Country.
4. From the Point of View of the
States
There are many reasons why states believe
they should have a right to assume jurisdiction
in Indian territory. As can be expected the
primary one is economic in nature. But states
also voice concern for law and order and effi-
ciency in government. Underlying all three,
unfortunately, is racial prejudice.
a. Economic Factors
First, assumption of jurisdiction within Indian
Country has very real economic ramifications
with respect to taxation and natural resource
development. Although within the boundaries
of a state, Indian lands are exempt from state
taxation because of their independent sover-
eign status. Although studies have shown that
federal involvement within the state because
of trust obligations more than make up for the
loss of tax revenues, special interest groups
continue to push for taxation.
Many politically powerful interest groups
within states view Indian treaty rights as giving
unfair advantage to the tribes. For example,
commercial and sport fishermen27 in several
states feel that Indian treaty rights threaten
their profit-making capability. Sport fishermen
are equally upset claiming that treaty rights
make Indians "super citizens" and therefore
violate the equal protection clause of the United
States Constitution.2*
Similar arguments support state efforts to
assume jurisdiction over natural resources,
including water, and economic development.
b. Law and Order
Sporadically throughout the history of the
United States-Indian relations states have felt
the necessity to assume criminal jurisdiction in
Indian territory because of what they have felt
to be inadequate law and order administration.
This assertion is partially founded on racial
prejudice.
In most cases, however, states have claimed
that criminal jurisdiction is needed because
tribes either do not have the inclinations or the
institutions to establish and enforce discipline
within their territory, thus making reservations
sanctuaries for law-breaking Indians and a dan-
ger to Anglos living nearby.29
c. Efficiency of Government
Many interests within states argue that
because the law related to jurisdiction in Indian
Country is so vague and unclear conflicts will
continue to occur which result in lengthy court
battles and other costly expenditures. Many of
these people do not believe, as a practical mat-
ter, that Indian governments and non-Indians
can work together successfully. Consequently,
they believe that in the interest of government
efficiency, the states should have sole control.
d. Prejudice
Pervading all arguments put forth by states
and their interests with respect to the assump-
tion of jurisdiction in Indian Country is the fear
of Indians exercising control over the behavior
and/or economic interests of non-Indians on
Indian reservations. Many non-Indians appear
to be threatened by the fact that they may place
themselves under the jurisdiction of a cultur-
ally foreign government when they enter an
Institute for the Development of Indian Law
IV-41
-------
Indian reservation, a fact that does not seem
to bother them when they enter another state
or a foreign country.
In support of their arguments, non-Indians
(some of whom have organized themselves into
groups such as "Montanans Opposed to Dis-
crimination" and "Inter-State Congress on
Equal Rights and Responsibilities") claim that
their constitutional rights are violated when
they are forced to submit themselves to tribal
jurisdiction. The basis for this claim is that non-
Indians are generally prohibited from partici-
pating in the voting franchise within the res-
ervation community. Again, this situation exists
throughout the United States where individu-
als own property in more than one state.
D. GENERAL STATE
OF THE LAW
It is difficult to summarize the general state
of the law concerning the question, "Who has
jurisdiction in Indian Country?" The answer
depends on a number of complex and often
conflicting variables such as treaties a tribe
may have made with the federal government,
statutes passed by Congress, federal court
decisions, specific tribal laws, state laws and
the economic and political climate at any one
time. Nevertheless, in this section we will
attempt to describe in as general and simple
terms as possible what United States law says
on this topic.
First we will state the general rule which is
highly supportive of Indian sovereignty. Then
we will discuss two legal doctrines which are
applied by United States Courts to determine
when it is appropriate for federal and/or state
courts to assume jurisdiction. Finally we will
discuss and trace the creeping jurisdiction of
both the federal government and the states with
respect to criminal and civil matters.
1. General Rule
A formidable body of law favorable to Amer-
ican Indian people and tribes has been devel-
oped which, if properly administered and
applied, will protect Indian self-government and
enhance their potential for social and economic
growth. From this body of law can be gleaned
a general rule concerning jurisdiction in Indian
Country.
Because of their inherent sover-
eignty Indian nations have exclu-
sive jurisdiction over their people
and territory with respect to crimi-
nal and civil matters except where
limited or taken away by treaties or
Acts of Congress.30
Many individual Indian governments have
chosen to limit their own jurisdictional powers.
These limitations usually appear in tribal con-
stitutions and codes or in treaties and agree-
ments they have made with the federal govern-
ment. The federal government claims the right
to limit tribal exclusive jurisdiction on the basis
that it is the trustee of Indian governments and
must "protect" them. States have no authority
over Indian affairs, tribal governments or res-
ervation lands. Any power of the states to reg-
ulate relations with Indian nations is a dele-
gated power accorded to states by either the
federal government or by the Indian nation itself.
Thus, to determine whether it has jurisdic-
tion in a specific situation, an Indian tribe must
ask the following questions: Do our own laws
and customs, including our constitution, per-
mit us to exercise this power? Did we cede this
power to the federal government in a treaty?
Has the federal government delegated the power
to itself or a state through a federal statute? If
so, do we still have concurrent jurisdiction?
a. Federal Preemption Doctrine
and Infringement Test
We have seen that despite the original juris-
diction of Indian tribes over criminal and civil
matters within their territory. United States
law permits both the federal government and
the states to assume jurisdiction in Indian
Country in certain circumstances. To help the
courts determine when such circumstances are
appropriate two legal doctrines have evolved.
The first is the Federal Preemption Doctrine
which stems from the unique federal-Indian
Indian Jurisdiction
TV-A?
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trust relationship. The federal preemption
doctrine says that the plenary power of Con-
gress to regulate Indian affairs can preempt
state jurisdiction over Indian nations and their
territories. This means, for example, that if
there is a federal statute regulating an activity
on an Indian reservation, the state cannot reg-
ulate that same activity.
What happens, however, if there is no fed-
eral statute and a state wants to assume juris-
diction? In such cases, the infringement test,
not the federal preemption doctrine, applies.
The infringement test is used by the courts to
determine whether the tribe or a state has juris-
diction in the absence of a federal statute.
Refined through numerous court-decisions31 the
infringement test essentially says that the state
has jurisdiction only in cases where the state's
action does not infringe on the right of Indian
nations to make their own laws and be ruled
by them.
When states attempt to assert jurisdiction
over non-Indians within an Indian reservation,
both doctrines, the federal preemption doc-
trine and the infringement test, are potentially
applicable.
One can readily see that these two doctrines
still leave many unanswered questions. Con-
fusion arises frequently over whether there is
a governing act of Congress and whether or not
a state action actually "limits tribal self-gov-
ernment."
United States law permits both the
federal government and the states
to assume jurisdiction in Indian
Country in certain circum-
stances.
In summary, court decisions seem to indi-
cate that if there is a "governing" Act of Con-
gress, the federal preemption doctrine applies.
If there is no such act, the infringement test
applies. If non-Indians are not involved, the
states have no interest and therefore cannot
assume jurisdiction under any circumstance.
See Chapters II and III of this text for a more
detailed discussion of these doctrines.
2. Criminal Jurisdiction
It is in the area of criminal jurisdiction that
most of the controversies among the federal
government, the various states, and Indian
nations have arisen. In this section we will
highlight the detailed discussion of this emo-
tionally charged subject which appears in
Chapter II of this text.
To determine which of the three has juris-
diction in a criminal matter one must first estab-
lish: (I) what crime was committed; (2) whether
the defendant is an Indian; (3) in which state
the crime occurred; and (4) what tribal laws
and treaties are applicable to the case, if any.
Still the general rule applies that Indian tribes
have exclusive jurisdiction unless a treaty or a
federal statute states otherwise.
a. Federal Assumption of
Criminal Jurisdiction
Soon after the founding of the new nation,
the United States Government found it neces-
sary to pass laws concerning the conduct of its
own citizens within Indian Country. This early
series of laws known as the Trade and Inter-
course Acts32 was passed largely because the
fledgling nation was concerned that the fraud-
ulent conduct of its citizens might provoke
Indian nations to war. Although the motives
behind the acts were to protect Indian tribes,
they succeeded in firmly establishing the power
of the federal government to control its own
citizens and their dealings with the Indians.
The Trade and Intercourse Acts were only
the beginning of the steadily creeping federal
jurisdiction over Indian Country. In 1816 Con-
gress passed the General Crimes Act33 which
made all federal criminal laws applicable to
Indian Country except where: (I) offenses are
between Indians; (2) an Indian has already been
punished under tribal law; or (3) exclusive
jurisdiction over a particular offense has already
been reserved by a tribe in a treaty. With minor
modification, the act is still in effect today.
The Major Crimes Act of 188534 is the first
major federal statute which allowed the federal
government to assert jurisdiction over purely
Indian matters in Indian territory. The act as
Institute for the Development of Indian Law
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amended gives federal courts jurisdiction over
fourteen violent crimes even in cases where
the crime was committed by one Indian against
another. These crimes include murder, man-
slaughter, rape, incest, assault with intent to
kill, arson, burglary, robbery and kidnapping.35
A1946 Supreme Court decision36 applied the
Assimilative Crimes Act of 182537 to Indian
Country. The result was to make state criminal
laws apply to federal enclaves in the absence
of a specific federal law. This decision greatly
increased the number of crimes (such as simple
assault) subject to federal prosecution within
Indian Country.
More recently, in 1978, there was a serious
attack against Indian sovereignty and self-gov-
ernment when the Supreme Court decided the
case ofOliphant v. Suquamish Tribe* In this
case the court found that tribal courts did not
have the power to try and punish non-Indians
who commit crimes on the reservation and are
arrested on the reservation. This unfortunate
decision was based on poor legal analysis and
guided by the out-of-date prejudice that Indian
judicial systems are inferior to the non-Indian
system.
b. State Criminal Jurisdiction
over Indian Country
Since the establishment of the United States,
state governments have continually attempted
to exercise criminal jurisdiction over Indian
territory. Nevertheless, the general rule still
applies today: states have no jurisdiction unless
a specific Act of Congress has granted it to
them. As we said earlier, states have no juris-
diction over Indians unless the tribes or the
United States Congress has specifically granted
them that jurisdiction. Such a grant happened
in 1953 when Congress passed, without the
consent of the tribes. Public Law 280. See dis-
cussion below and in Chapter IV.
Limited state criminal jurisdiction in Indian
territory aside from P.L. 280 has been allowed
by the federal government in certain circum-
stances. The legal rationales are too erratic and
confusing, however, to discuss them in a short
space. See the more detailed discussion in
Chapter II.
c. Criminal Jurisdiction and the
Tribes
We have already seen that the tribes have
exclusive jurisdiction unless it was specifically
given up in a treaty or it was denied in an Act
of Congress. We have also seen that there have
been a series of congressional acts which have
infringed upon tribal sovereignty and chipped
away at their exclusive jurisdiction. It is impor-
tant to note, however, that there are still many
areas where tribal exclusive jurisdiction is intact.
With the exception of the fourteen offenses
listed in the Major Crimes Act, Indian nations
retain exclusive jurisdiction over offenses
committed by Indians which do not affect the
person or property of non-Indians. And where
an existing treaty between the federal govern-
ment and an Indian tribe guarantees the tribal
court exclusive jurisdiction, no other court may
hear the case.9*
In addition, it is important to remember that
the legislative history of the Major Crimes Act
and other legislation does not support the notion
that the federal government, in claiming juris-
diction over Indian Country in certain matters,
claimed exclusive jurisdiction. When offenses
against the person or property of non-Indians
are committed by Indians, tribal and federal
governments share concurrent jurisdiction.
Indeed, strong arguments can be made to sup-
port concurrent jurisdiction in most cases where
the federal government or the states have
assumed jurisdiction over Indian Country.40
3. CivilJurisdiction
In the area of civil jurisdiction over Indian
Country the working rule remains that the Indian
nations retain all their jurisdictional powers over
the people and property within their territory
except where restricted by a treaty provision
or an Act of Congress.
a. Federal Civil Jurisdiction
Just as there are statutes authorizing federal
assumption of criminal jurisdiction in Indian
Country, Congress has passed several laws
asserting federal civil jurisdiction in Indian
Indian Jurisdiction
-------
affairs. The forum in which both powers are
exercised, however, differs. Federal criminal
jurisdiction is administered in the federal court
system, whereas federal civil jurisdiction is pri-
marily a question of administrative law carried
out by federal executive agencies such as the
Bureau of Indian Affairs in the Department of
the Interior.*1
Indian tribes have exclusive juris-
diction unless a treaty or a federal
statute states otherwise.
The Bureau of Indian Affairs plays the major
role in exercising federal civil jurisdiction over
Indian nations, for it is the primary agency
within the government for carrying out trust
obligations to Indian tribes. The major author-
izing legislation for the BIA, the Snyder Act of
1921 and the Johnson O'Malley Act of 1934,42
give the BIA the power to expend funds and
set up programs in all areas of tribal life,43
including education, social welfare, health care,
economic development, and tribal govern-
ment. The administration of these programs
and other trust responsibilities has enabled the
BIA and other federal agencies to exert so much
control over tribal self-government, that they
all too frequently have invaded the area of tri-
bal self-government.44
It was not until the passage of the Indian
Civil Rights Act (ICRA) of 1968, however, that
a major protest was heard from tribes. This
legislation made most of the United States Bill
of Rights applicable to tribal criminal and civil
procedures. Consequently the Act seriously
affected the cultural values by which Indian
tribes operated their governments and court
systems.
The extent of federal civil jurisdiction under
the Act was unclear. Ten years of confusion
followed until 1978 when the United States
Supreme Court clarified the scope of the ICRA.45
In that decision, the Court restricted the juris-
diction of federal courts solely to habeas cor-
pus cases. The Court, realizing that the ICRA
incorporated two distinct and often competing
congressional purposes of protecting individ-
ual Indians from unjust actions of tribal gov-
ernment and promoting Indian self-govern-
ment, decided that the latter must prevail.
b. State Civil Jurisdiction
As in the case of criminal jurisdiction, states
generally do not have civil jurisdiction over
Indian Country. But the courts themselves have
said that there can be no rigid rule in this mat-
ter. Thus the area of state civil jurisdiction in
Indian Country is very confusing. In trying to
determine whether a state would have jurisdic-
tion one must first look to see whether a spe-
cific federal statute would "preempt" state
involvement, or specifically grant the jurisdic-
tion to the state as in the case of Public Law
280. In the absence of a specific federal statute,
the courts use the infringement test to see
whether state jurisdiction would "infringe" upon
tribal self-government and tribal sovereignty.
If it is found that state action would not infringe
upon tribal self-government, states can be
granted civil jurisdiction by the courts. In such
cases, however, there is a strong argument for
tribal concurrent jurisdiction.
c. Tribal Civil Jurisdiction
Indian governments have inherent jurisdic-
tion to regulate their own affairs as well as all
activities occurring within their territory. As
part of this jurisdiction they have the power to
make and enforce their own laws. This has
been upheld in numerous court decisions.46
United States courts have upheld a tribe's power
to enforce its laws regarding crimes and taxa-
tion, thus it can reasonably be concluded that
tribal jurisdiction extends to all aspects of civil
law.
A recent United States Supreme Court deci-
sion supported the principle that tribes have
exclusive civil jurisdiction over matters occur-
ring on the reservation involving tribal mem-
bers.47 (See discussion of Fisher v. District
Court in Chapter III. C). Tribes have the right
to impose oil and gas severance taxes upon
non-Indian lessees of tribal trust lands.^Tribes
have the fundamental right to determine citi-
Institute for the Development of Indian Law
IV-45
-------
zenship.49 Tribes have exclusive jurisdiction in
regulating domestic relations and child cus-
tody.50 This includes marriages and divorces,
as well as the ability to make rules governing
division of property and support of family
members. Marriages in accordance with Indian
laws and customs are as valid as marriages
under state laws.51
Indian nations also have exclusive jurisdic-
tion over the regulation of property and land
use. Indian nations have the authority to reg-
ulate both Indian and non-Indians by taxing
and licensing people and activities (commercial
dealings, contracts, leases or other arrange-
ments) when that person enters or that activity
occurs in Indian Country .M
It is through its courts that a tribe can exer-
cise and enforce potentially all matters involv-
ing the internal affairs of the tribe, including
the enforcement of its own laws and regula-
tions. Many tribes, however, have denied
themselves civil jurisdiction over non-Indians
on the reservation. These limitations are often
written in a tribal code or constitution. The
self-enforced limitations are unfortunate because
the United States Supreme Court has recog-
nized tribal civil jurisdiction over non-Indians
in many situations. Tribes would greatly enhance
their powers of self-government by attempting
to regulate all people and activities within their
territories.
4. Special Cases
While Indian nations throughout the United
States retain many jurisdictional powers either
exclusively or concurrently, tribes in certain
regions, because of political and historical cir-
cumstances, are particularly confused and lack
confidence in carrying out their duties of self-
government. Particularly, these are tribes
located within the geographical boundaries of
states who were delegated limited jurisdiction
over Indian Country by the federal government
through Public Law 280 and in the State of
Oklahoma. For this reason, we have devoted
two separate chapters in this book to these
subject areas.
a. Public Law 280
Perhaps the most widely denounced federal
Indian legislation in recent years is Public Law
83-280. Passed in 1953, P.L. 280 gave the states
of 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 bound-
aries of those five states.
In 1958 Alaska was added to the list of states.
In later years additional states opted to assert
full or partial civil and/or criminal jurisdiction
without the consent of Indians. Tribal govern-
ments protested forcefully and in (968, P.L.
280 was amended to require the consent of
Indian nations before states could assume
jurisdiction.53
In the area of criminal jurisdiction the act
provided that the Major Crimes and the Gen-
eral Crimes acts would no longer apply and the
state would assume jurisdiction over such
crimes. It is important to note, however, that
because of the federal-Indian trust relation-
ship, P.L. 280 states are not allowed to assume
jurisdiction over Indian trust or restricted real
or personal property, including water. Conse-
quently, states are not able to tax or otherwise
place restrictions on Indian lands or property.
Moreover, rights retained by tribes in treaties
and other agreements made with the federal
government are preserved for the tribes. These
include hunting, fishing and trapping rights.
With respect to civil jurisdiction Public Law
280 placed under state jurisdiction only those
laws of general application, that is, which applied
to everyone within the state.*4 Local laws, such
as zoning ordinances are not under state juris-
diction.
By passing Public Law 280 Congress
attempted to secure the cheapest solution to
the problem of alleged lawlessness on Indian
reservations. No federal funds were ever com-
mitted for the practicalities of law enforce-
ment. It was left entirely to the states to pro-
vide and pay for policing the reservations.
Because of the high costs and inefficiency many
Indian Jurisdiction
TV-46
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states today are attempting to return jurisdic-
tion to the tribes and the federal government.
It is also important to remember that no mat-
ter how much Public Law 280 has infringed
upon tribal sovereignty, it theoretically has not
seriously affected tribal jurisdictional powers.
Recently, federal court decisions and opinions
of the Solicitor of the Department of Interior55
have upheld that P.L. 280 does not extinguish
concurrent tribal jurisdiction over its own
members.
b. Oklahoma
Perhaps nowhere else has state encroach-
ment on tribal jurisdiction been more confusing
than in Oklahoma. Up until recently the State
of Oklahoma has been held by the courts not
to be "Indian Country"56 for jurisdictional pur-
poses because of the "lack" of reservations, a
problem created by the General Allotment Act
of 1887. The legal reasoning behind this con-
tention has been seriously defective. Other
states with similar allotment situations did not
have their reservation boundaries "lifted." Nor
can legal scholars find a specific act or order
which generally nullifies reservation bound-
aries within the State of Oklahoma. Neverthe-
less, the State with the help of federal agency
officials, successfully perpetuated the myth.
Compounding the confusion are historical
circumstances and the fact that Congress has
passed numerous laws affecting the exercise of
sovereign powers of certain tribes (primarily
the Five Civilized Tribes). Over the years many
of these laws have been applied incorrectly to
tribes throughout the state.
Until recently, this confusing set of circum-
stances has made the Indian nations located
within the State with the second largest Indian
population afraid to assert their sovereign pow-
ers particularly in the area of jurisdiction. Since
1977 two court decisions57 have held that activ-
ities occurring on tribal lands and trust allot-
ments are under the jurisdiction of the tribes
and/or the federal government and not the State
of Oklahoma. Today, tribes throughout Okla-
homa are exercising more of their inherent sov-
ereign powers and are working to develop and
enhance their law enforcement capabilities.
E. CONCLUSION
Despite the numerous and sometimes con-
flicting rules of law, court decisions and stat-
utes concerning jurisdiction in Indian Country.
the general rule remains that tribes have juris-
diction over their own people and territory
unless restricted by a treaty provision or an
Act of Congress. Where assumptions of juris-
diction have been taken by the federal govern-
ment or the states, we have seen that in most
instances tribes retain concurrent jurisdiction.
Indeed United States law endorses Indian
sovereignty and tribal self-government and
generally supports the exercise of tribal juris-
diction within Indian territory. Nevertheless,
tribes can expect continued attempts by both
the federal government and the states to assert
jurisdiction over them. There are several rea-
sons for this. First, Indian nations are in effect
nations within a nation. Consequently, they do
not enjoy the advantage of physical separation
by clearly delineated national boundaries such
as exists between the United States and Can-
ada or the United States and Mexico.
As in the case of criminal juris-
diction, states generally do not
have civil jurisdiction over Indian
Country.
Second, within Indian Country there are often
sizeable non-Indian populations creating court-
inspired problems of enforcement of both civil
and criminal jurisdiction.
Third, although the relationship between the
federal government and Indian nations is said
to be exclusive, in practical terms there have
been many intrusions upon sovereignty through
state encroachment, federal-state agreements,
and federal laws such as P.L. 280. Each time
an encroachment takes place it supports fur-
ther creeping jurisdiction.
Fourth, shortages of natural resources and
the never-ending need for tax revenues will
continue to encourage attempts by states to
assume jurisdiction over civil mailers.
Institute for the Development of Indian Law
IV-47
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Despite such negative factors, however, there
are also encouraging indicators supporting the
return of more and more criminal and civil
jurisdiction to the tribes. For example, recent
experience has proven to federal and state gov-
ernmental officials and politicians that local
government is not only more effective than
federal government but it is also less expen-
sive. It is reasonable to forecast that Indian.
societies will also be more efficient and orderly
when they live under a governmental and legal
system reflecting Indian values and adminis-
tered by Indians. Moreover, current federal
policy supports tribal self-government and
recent court decisions have followed suit.
Indian people are looking to their own gov-
ernments to meet their needs, solve their prob-
lems, and build their futures. They are refining
their traditional governmental institutions to
meet contemporary needs. They are reestab-
lishing law enforcement and court systems,
amending constitutions and passing laws
enabling their governments to exercise greater
jurisdiction over their internal affairs. In order
to preempt attempts by states to regulate eco-
nomic development and taxation, tribes are
creating tribal codes covering such matters.
Each tribe must decide for itself which of its
sovereign jurisdictional powers it wants to
exercise. Yet. more and more tribes are coming
to realize that if they do not exercise these
powers, there is a very good chance that the
federal or state governments will. It is only by
pushing to retain or reacquire jurisdiction over
their own land and people that Indian govern-
ments can ensure the survival of their tribes.
Indian Jurisdiction
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IV.
PUBLIC LAW 280
A. Overview
Previous chapters have discussed the gen-
eral rule that states have no jurisdiction over
Indian Country unless a tribe or a specific Act
of Congress has granted it to them. Such a
"grant" of jurisdiction by the federal govern-
ment to the states occurrred in 1953 with the
passage of Public Law 83 280.' Perhaps the
most widely denounced federal Indian legisla-
tion in recent years. Public Law 280 gave the
states of Wisconsin, Oregon, California, Min-
nesota and Nebraska criminal and civil juris-
diction in Indian Country and provided a mech-
anism whereby the states could assume per-
manent jurisdiction over Indian nations. The
law applied to most of the Indian land within
the boundaries of these five states. To some
extent, under PL 280. tribal laws and customs
were honored, but if there was a conflict, it was
to be decided by the state and not by tribal law.
Indian lands were still to be held in trust by the
federal government, and no taxation or other
encumbrance upon these lands was to be
Institute for the Development of Indian Law
IV-49
-------
allowed. Indian hunting, fishing and trapping
rights were to be retained by the tribes, and
were not to be subjected to state control. The
states were limited to applying only laws "of
general application," which means that local
and county ordinances such as zoning regula-
tions were not to be applied.
In 1958, Alaska was added as one of the
states that possessed full civil and criminal
jurisdiction over Indians. In addition to these
states, any other state could opt to assert full
or partial civil and/or criminal jurisdiction with-
out consent of the affected Indians. Many did.
These partial assertions have been the cause
of much litigation. In 1968, PL 280 was amended
so that states could no longer assert jurisdiction
over Indians without their consent. However,
the 1968 Amendments only allowed for a
retrocession, or giving back, of jurisdiction
acquired under the 1953 Act at the states' request
instead of at tribal request. Only the state could
Today . . . many states are seek-
ing to return jurisdiction to the
tribes for a variety of reasons most
of which are economically based.
make the offer of retrocession, and only the
federal government, through the Secretary of
the Interior, could accept that offer. Indians
were still excluded from the decision-making
process.
In passing PL 280 Congress bowed to state
pressures to secure the cheapest solution to
the problem of alleged lawlessness on Indian
reservations. Today, however, many states are
seeking to return jurisdiction to the tribes for
a variety of reasons most of which are econom-
ically based. And many tribes within those states
are firming up their governmental structures
and institutions in order to accommodate the
return of such jurisdiction.
1. Why Study It?
An understanding of Public Law 280 (PL
280) is necessary not only for those tribes and
individuals subjected to it, but also for ail con-
cerned Indian and non-Indian people who rec-
ognize the concept of inherent sovereignty as
being vital to the survival of Indian nations.
Indeed, Public Law 280 infringes upon tribal
jurisdictional powers by limiting both individ-
ual and tribal rights.
In an effort to help tribal governments over-
come the devastating implications of this Act
and prevent future legislation with similar intent
and shortcomings from being passed, this
chapter will discuss the legislative history of
the Act, including its political predecessors,
analyze in detail what the Act does, and discuss
how the courts have both limited or extended
the Act's rather vague provisions over the years.
B. Historical
Background
'Beginning in the 1920's with the publication
of the Merriam Report2 and extending through
the 1930's, federal policy and legislation3
strongly affirmed tribal sovereignty and sup-
ported mechanisms which would assist tribes
in strengthening their governments and insti-
tutions and consolidating their land bases
severely fragmented by allotment. After decades
of broken promises, moral disillusionment, the
ravages of disease, and abrupt changes in life-
style, Indian governments and their people were
beginning to pick up the pieces and forge new
self-determined futures. World War II put an
end to the United States' spirit of commitment
to Indian self-determination and the reforms
made during the 1930's.
While the war years marked a dormant period
in Indian-United States relations, the post-war
years (late 1940's through the early 1%0's) saw
the development and implementation of a
"new" policy which brings chills to the spines
of almost every Indian who hears the word
today. When the nation emerged from the War,
Congress began to look upon Indians, who had
participated in great numbers in the war effort,
as financial burdens. In 1953, therefore. Con-
gress passed House Concurrent Resolution No.
108 declaring the United States policy toward
Indian tribes to be that of termination.
Indian Jurisdiction
IV-50
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1. Termination: An Old Policy
With A New Twist
Termination was presented as a method of
making Indians first-class citizens, even though
they had been made United States citizens in
1924.4 By terminating the special trust relation-
ship and sovereign status of Indian nations, the
United States government would be promoting
their "assimilation'—socially, culturally and
economically—into the mainstream of Ameri-
can society. Through termination Indians would
be given the same rights and responsibilities of
all other citizens, thereby making them first
class and "fully taxpaying citizens."5
Americans have always held close to their
hearts the idea that this society is a "melting
pot" where peoples from all over the world
have come to make their fortunes and live hap-
pily ever after with each other. One does not
have to visit many ghettos of large cities or the
many rural enclaves of distinct ethnic groups
which dot the land to know that the melting pot
is more theory than fact. Nevertheless, the ulti-
mate passage of House Concurrent Resolution
108 in 1953 affirming the terminationist policy
towards Indians had as a basis this out-dated
and uniquely American myth.
The report of the Hoover Commission,6 pub-
lished in 1949, advocated complete integration
into the dominant society. With Indian advo-
cacy in the federal sector at a low point, this
outlook quickly gained momentum. Certainly,
some legislators sincerely believed that inte-
gration was both equitable and a desirable solu-
tion for the endemic problems encountered by
the rural and isolated nature of Indian reser-
vations. This concern, combined with the polit-
ical realities of a newly elected and popular
Republican president. Republican and conser-
vative majorities in both Houses of Congress,
and nationalistic post-war "Americanism" led
to an easy passage of HCR 108.7
Whereas it is the policy of Con-
gress, as rapidly as possible to make
the Indians within -the territorial
limits of the United States subject
to the same laws and entitled to the
same privileges and responsibilities
as are applicable to other citizens of
the United States, and to grant them
all the rights and prerogatives per-
taining to American citizenship; and
Whereas the Indians within the ter-
ritorial limits of the United States
should assume their full responsi-
bilities as American Citizens:
Now, therefore be it resolved . . .
Without looking too far afield, we can see above
sentiments expressed in the 1980's, by the so-
called backlash groups such as Montanans
Opposed to Discrimination (MOD) and the
Interstate Congress on Equal Rights and
Responsibilities (ICERR).
Although a statement of policy only, HCR
108 was quickly followed by the notorious Pub-
lic Law 280 in August of the same year and
subsequently by many pieces of legislation
which "terminated" the special relationship
between Indian tribes and the United States.
The real effect of the termination policy was
to make Indian lands subject to state property
taxes. Indians were too poor to pay the taxes
and thus states began to confiscate Indian lands
for nonpayment. Over 70 Indian tribes and
rancherias fell victim to the termination pol-
icy.8 Again short-sightedness on the parts of
the federal government and states neither took
into consideration the effect that the cessation
of federal dollars to Indians would have on
states or the debilitating social burden which
would become the states' responsibility. Today,
as in the case with Public Law 280. many tribes
have had their "federally recognized" status
reinstated through Congressional legislation.
2. Legislative History
Fueled by federal reports such as the Hoover
Commission Report, HCR 108, the loss of Indian
advocates in policy-making positions in the
federal government, the economic climate, and
the generally conservative mood of the nation,
the imposition of civil and/or criminal jurisdic-
tion over Indians by certain states through pas-
sage of PL 2809 was not surprising.
Institute for the Development of Indian Law
IV-51
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a. Earlier Legislation
Earlier attempts by states to obtain through
federal legislation civil and/or criminal jurisdic-
tion over Indian Country had been carried out
subsequent to World War II. For example.
North Dakota was accorded criminal jurisdic-
tion over the Devils Lake Reservation in 1946,10
and Iowa was given criminal jurisdiction on the
Sac and Fox Reservation in 1948." In 1949
.California was accorded full civil and criminal
jurisdiction over the Agua Caliente Reserva-
tion,12 a decision prompted more by a desire of
the "fashionable" city of Palm Springs to be
rid of the "Indian problem" than a concern for
the successful integration of Indians into the
mainstream of society. It was the State of New
York's successful attempt to assert both civil
and criminal jurisdiction over Indian tribes that
served as the first serious "test" for Public
Law 280.
(1) The New York Example
In July, 1948 an Act of Congress granted to
the State of New York criminal jursidiction
"over offenses committed by or against Indi-
ans on Indian reservations within the State of
New York. . . ."13 A comparison of the legis-
lative history of this act with that of PL 280
reveals similar rationales for passage: lawless-
ness on reservations and the subsequent threats
to neighboring Anglos.14 The following excerpt
from the House Report on the New York Act
underscores this concern:
The need of this legislation arises
from the fact that in certain instances,
Indian tribes do not enforce the laws
covering offenses committed by
Indians and law and order should be
established on the reservations when
tribal laws for the discipline of its
members have broken down."
New York State's civil jurisdictional act was
passed in 1950,16 and allows for tribal laws and
customs as certified by the Secretary of the
Interior, to govern in all civil cases if a tribal
law or custom is at issue in the suit. September
13,1952 was the date that state civil jurisdiction
became effective.
b. The Evolution of Public Law
280
Concurrently with the passage of the juris-
dictional acts in New York, Congress began
formulating pieces of legislation which would
grant states across the nation civil and/or crim-
inal jurisdiction over Indian Country for both
general application and in particular instances.17
At this time, jurisdiction over Indians in Indian
Country was under tribal or federal control,
except in cases of treaty provisions, special
feature statutes or court cases allowing state
intrusion due to the involvement of non-Indi-
ans.1*
The early bills often favored only concurrent
criminal jurisdiction for states over Indians on
reservations.19 The Department of the Interior
opposed such bills because they provided for
no tribal consent provision before imposition
of state jurisdiction and the Interior Depart-
ment favored the greater flexibility of state-by-
state application of jurisdiction.20 the position
historically preferred by Interior. Although
introduced in the 80th and 81st Congresses, the
bill failed to gain passage by both Houses.
In the 82nd Congress, it was amended to
include only certain stales, provide for Indian
consent, and preserve Indian hunting and fish-
ing rights. Interior still opposed it in favor of
state-by-state control approval,21 prophetically
citing problems such as discrimination against
Indians in state courts, reluctance of states to
provide adequate law enforcement on reser-
vations, the already efficiently functioning law
and order and tribal court systems on some
reservations, and the unfamiliarity of Indians
with state laws in general.22 But claiming that
tribal referenda were too costly, the Interior
Department said it favored tribal consulta-
tion.23 A revised version of the bill died in the
82nd Congress.
Indian Jurisdiction
IV-52
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c. A Bill Becomes Law
At the beginning of the 83rd Congress, the
House Subcommittee on Indian Affairs revised
a bill transferring criminal and civil jurisdiction
over Indians in California into a bill of general
application.24 That bill, HR 1063, became PL
280. The full text of the bill appears in the
appendix at the end of this book. The bill was
favored in theory by some tribes, but objected
to by at least five tribes.25 Despite Indian oppo-
sition to the bill, the House of Representatives
passed it without amendment on July 27,1953.26
After deleting section eight, which dealt with
federal liquor laws, the Senate passed it with-
out amendment. It then was returned to the
House to concur in the deletion of section eight.
This was done on August 1, 1953.27 Interior
had not stated its previous objections to con-
ferral of jurisdiction without tribal referenda or
consultation as it had in the past. This lack of
consultation apparently bothered President
Eisenhower too, as he stated that he had grave
doubts about portions of the bill:28
1 have . . . signed it because its basic
purpose represents still another step
in granting complete political equal-
ity to all Indians in our Nation . . .
My objection to the bill arises
because of the inclusion in it of sec-
tions six and seven. These sections
permit other states to impose on
Indian tribes within their borders,
the criminal and civil jurisdiction of
the State, removing the Indians from
Federal jurisdiction, and, in some
instances, effective self-govern-
ment.
The failure to include in these pro-
visions a requirement of full con-
sultation in order to ascertain the
wishes and desires of the Indians
and of final federal approval, was
unfortunate. 1 recommend, there-
fore, (hat at the earliest possible time
in the next session of the Congress,
the Act be amended to require such
consultation with the tribes prior to
the enactment of legislation sub-
jecting them to State jurisdiction, as
well as approval by the Federal
Government before such legislation
becomes effective.29
It was some fifteen years before the President's
recommendations became law.
C. Provisions of the Act
In examining the provisions of the Act, it
becomes clear that the grant of jurisdiction to
the states was indeed a broad one, limited pri-
marily by the language contained in section 2
(b):
(b) Nothing in this section shall
authorize the alienation, encumbr-
ance, or taxation of any reai'or per-
sonal property, including water
rights, belonging to any Indian or
any Indian tribe, band, or commu-
nity that is held in trust by the United
States or is subject to a restriction
against alienation imposed by the
United States; or shall authorize
regulation of the use of such prop-
erty in a manner inconsistent with
any Federal treaty, agreement, or
statute or with any regulation made
pursuant thereto; or shall deprive
any Indian or any Indian tribe, band,
or community of any right, privi-
lege, or immunity afforded under
Federal treaty, agreement, or stat-
ute with respect to hunting, trap-
ping, or fishing or the control,
licensing, or regulation thereof.
1. Criminal Jurisdiction
Sections one and two accorded criminal
jurisdiction, with certain exceptions to the states
of California, Minnesota. Nebraska, Oregon,
and Wisconsin. Alaska was included by a 1958
Amendment.30 Specifically excluded from state
control was trust or restricted real or personal
Institute for the Development of Indian Law
IV-53
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property, including water rights. No taxation,
encumbrance, or other restrictions upon Indian
lands or other property was allowed in the Act,
and the primacy of the Federal-Indian relation-
ship with regard to treaties, agreements, or
federal statutes was acknowledged, as were
Indian hunting, fishing, and trapping rights.
Congress attempted.. .to secure
the cheapest solution to the prob-
lem of alleged lawlessness on
Indian reservations.
Section 2 (c) also provided that both the Major
Crimes Act31 and the General Crimes Act32
would no longer apply in those areas now cov-
ered by PL 280.
What Congress attempted to accomplish by
the sections was to secure the cheapest solu-
tion to the problem of alleged lawlessness on
Indian reservations. No federal funds were ever
committed toward the practicalities of law
enforcement. It was left up to the states to
provide and pay for the policing of Indian res-
ervations.
2. Civil Jurisdiction
Sections 3 and 4 provided for civil jurisdic-
tion, with the same limitations on the states
regarding trust or restricted property contained
in the grant of criminal jurisdiction under sec-
tion 2. The Act stated that ". . . those civil
laws of such State that are of general applica-
tion . . ."33 shall apply.
The words "of general application" proved
to be key ones, as much litigation has been
decided by judicial interpretations of the phrase.
What is a state law "of general application?"
For example, a law prohibiting gambling on
horse races throughout the State of Utah is a
state law of general application; it applies to
everyone throughout the state. A law of local
or limited application would be something such
as a zoning ordinance that prohibits shopping
centers in San Bernadino, California, but does
not affect other counties in California.
a. ' 'General Application''
Defined and Redefined
In 1975, the 9th Circuit Federal Court of
Appeals squarely addressed the issue of inter-
preting what constitutes a state law of general
application. In Santa flosa Band of Indians
v. Kings County,94 the court not only discussed
the "general application" doctrine, it also clar-
ified the "encumbrance"35 exception con-
tained in section 4 (b) of PL 280. The Court
chose to interpret the term "encumbrance"
broadly, and relied on several Supreme Court
decisions for its authority.36 In Sanfa flosa,
the court held that a certain county zoning ordi-
nance restricting the use of mobile homes did
not apply on the Santa Rosa Rancheria in Cal-
ifornia, a PL 280 state. It found the county
ordinance not a state law of general application
under PL 280. The ordinance said that prior
approval from the county was required for use
of a mobile home and then the use was limited
to not more than two years. Had the law
restricting mobile homes been statewide, even
then the court would not have reached a dif-
ferent decision, as we shall see below, because
of the "encumbrance" doctrine.
After deciding that the ordinance was not a
law of general application, the court addressed
the issue of "encumbrance." The standard set
by the court here for an "encumbrance" would
be any state regulation which effects the ". . .
value, use and enjoyment of the land."37 The
Court then said,
"Following the (Supreme) Court's
lead, and resolving, as we must,
doubts in favor of the Indians, we
think that the word (encumbrance)
as used here may reasonably be
interpreted to deny the state the
power to apply zoning regulations
to trust property."38
The court further stated that,
"... application of state or local
zoning regulations to Indian trust
lands threatens the use and eco-
nomic development of the main tri-
Indian Jurisdiction
IV-54
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bal resource—here it even handi-
caps the Indians in living on the res-
ervation—and interferes with tribal
government of the reservation."39
Thus, the zoning ordinance was an impermis-
sible encumbrance on the right of Indian nations
to determine the proper usage of their lands.
One year later, the U. S. Supreme Court
examined §4 (b) of PL 280 and those principles
discussed in the Santa Rosa case in Bryan v.
Itasca County,40 and found that states clearly
could not tax an Indian's personal property
located on federal trust lands. Here, a Minne-
sota Chippewa living on the Leech Lake Res-
ervation was taxed by the county for personal
property—a mobile home—located on trust
land. The court found that.
"... if Congress in enacting Public
Law 280 had intended to confer upon
the States general civil regulatory
powers, including taxation, over
reservation Indians, it would have
expressly said so."41
As it did not. the tax was an impermissible
one. In a footnote, the Court made reference
to both the Indian Financing Act of 1974 and
the Indian Self-Determination Act of 1975 as
indications that Congressional policy seemed
to be returning to that of strengthening tribal
government. State and local general civil laws,
including taxation, should not apply to reser-
vation Indians, as such a policy would have a
devastating effect on tribal governments. Sec-
tion 4 (c) did allow for "any tribal ordinance
or custom" adopted by an Indian nation to be
given "full force and effect" so long as it was
not inconsistent with a state law. This language
has been held by the U. S. Supreme Court to
"... contemplate the continuing vitality of tri-
bal government."42 Tribal self-government
through tribal courts and therefore tribal juris-
diction survives despite PL 280. as we see from
a series of recent federal and Supreme Court
cases.
43
3. Concurrent Jurisdiction
Recently, a federal court in Washington State
held that PL 280 does not extinguish concur-
rent tribal jurisdiction over its own members.44
An opinion of the Solicitor of the Depart-
ment of the Interior dated November 14, 1978,
entitled, "Criminal Jurisdiction on the Semi-
nole Reservation in Florida," holds that the
Seminole Tribe possesses concurrent criminal
jurisdiction along with the PL 280 criminal
jurisdiction accorded to the State of Florida.
Florida assumed civil and criminal jurisdiction
over all reservations pursuant to PL 280.45
As long as there is no inherent inconsistency
in the concurrent exercise of state and tribal
jurisdiction, no conflict exists and only by
express Congressional action could the tribe
lose its power of jurisdiction over Indians in
Indian Country. PL 280 does not expressly
extinguish such jurisdiction, and therefore con-
current criminal jurisdiction remains in the tribe.
Recently, a federal court in
Washington State held that PL 280
does not extinguish concurrent
tribal jurisdiction over its own
members.
In U. S. v. Wheelsr,46 the Supreme Court upheld
the right of a tribe to enact and enforce criminal
laws against members as a fundamental right
of tribal self-government. Any reading of PL
280 as an implied withdrawal of tribal criminal
jurisdiction would constitute an intrusion upon
tribal jurisdictional powers.47
Section 5 of PL 280 was a technical section
which repealed civil and criminal jurisdiction
over the Agua Caliente Reservation, so as to
assure a uniformity of jurisdiction throughout
the State of California.
4. The Mandatory and Optional
States
The five states "granted" jurisdiction in
Indian Country in the original bill—California,
Minnesota, Nebraska, Oregon, and Wiscon-
Institute for the Development of Indian Law
IV-55
-------
sin, joined by Alaska in 1958—are the so-called
"mandatory" states. These states were given
immediate civil and criminal jurisdiction as of
the date of passage of the Act without any
requirement of tribal consent, nor was any
affirmative state action required by any of the
"mandatory" states.* Thus, we have six man-
datory states.
Prior to PL 280's 1968 amendments, any other
state may have assumed criminal and/or civil
jurisdiction over Indians within its borders,
simply by deciding to do so. No Indian consent
or consultation was required. These are
"optional" states. Optional states are divided
into two categories: those without any barriers
to assuming jurisdiction in either their state
constitutions or enabling acts,49 and those with
disclaimers of jurisdiction over Indians.
When territories became states, they either
were required to acknowledge in their state
constitutions, or it was put into the Federal
Enabling Act making them a state, that the
state had no right to jurisdiction over Indians
within its borders. Eight states fell into the
category of having either enabling act or state
constitutional disclaimers; Arizona, Montana,
New Mexico, North Dakota, Oklahoma, South
Dakota, Utah, and Washington.50 Section 6
allowed the eight optional states with disclaim-
ers to amend their constitutions or statutes,
where necessary, to assume jurisdiction. A
provision was included which stated that the
assumption of jurisdiction would not be effec-
tive until such amendment was accomplished.
The U.S. Supreme Court interpreted section
6 on January 16, 1979. In Washington v. Con-
federated Bands and Tribes of the Yakima
Indian Nation* it was held that a partial
assumption of civil and criminal jurisdiction
under section 6 of PL 280 was valid, even though
Washington State's constitution disclaimed
jurisdiction over Indians and the state failed to
amend its constitution when it assumed partial
jurisdiction in 1963. The Court predicated part
of its decision on the wording of section 6 and
said that the phrase "where necessary" in this
case did not apply to Washington because it
had assumed jurisdiction prior to the 1968
amendment to PL 280, and it was not necessary
to amend its constitution, as passage of the
1963 Washington State statute asserting juris-
diction was sufficient to effectively confer
jurisdiction.
The stricter standard of close compliance
with the intended procedures envisioned by PL
280 was disregarded. Instead, the Court deter-
mined that any affirmative legislative action
was sufficient. Thus, it was not necessary for
Washington State to amend its constitution.
The mere passage of the state statute asserting
partial jurisdiction was sufficient to satisfy this
"affirmative legislative action" standard.
5. The 1968 Amendments
As federal-Indian policy gradually shifted
from its termination phase into what is called
the self-determination era, the practical prob-
lems underlying assertion of state jurisdiction
without federal funding and without tribal con-
sent became obvious. Without federal funds
states were (and are) reluctant to assert their
criminal jurisdiction. They want Indian lands
removed from their tax exempt trust status.
Without either federally or tribally based fund-
ing sources, states find it economically imprac-
tical to assert jurisdiction and the surrounding
non-Indian community cites Indians' alleged
"non-taxpaying status" as a justification for
discrimination in providing state services to
Indian communities.
Responding to the shift in federal policy away
from termination and in an attempt to rectify
the lack of tribal consent to assertion of state
jurisdiction, the 90th Congress passed amend-
ments to PL 280 as part of a package which
included the Indian Civil Rights Act.52
There are two major provisions of the 1968
amendments to PL 280. First, in section 401
(2), 402 (2), and 406. a tribal consent provision
is included to require a tribal referendum before
assumption of either civil and/or criminal juris-
diction by the state. Second, under section 403
(3), any state which already had acquired either
partial or full civil and/or criminal jurisdiction
can ret recede, or give back, all or part of that
jurisdiction to the federal government.
The legislative history of the measure indi-
cates both a dissatisfaction with the policy of
Indian Jurisdiction
IV-56
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termination and a shift toward a new policy of
self-determination for Indian people.53 It is use-
ful to place ourselves within a historical frame
of reference. President Johnson was in office,
many of his civil rights programs were being
implemented, the Congress had a heavy Dem-
ocratic majority in both Houses, and the bit-
terness and dissatisfaction with the United
States' handling of the Vietnam War had not
yet fully taken hold. In short, it was an oppor-
tune time for assertion of Indian rights.
President Johnson's endorsement of the
Indian Civil Rights bill is informative:
Fifteen years ago, the Congress gave
to the States authority to extend their
criminal and civil jurisdictions to
include Indian reservations where
jurisdiction previously was in the
hands of the Indians themselves.
Fairness and basic democratic prin-
ciples require that Indians on the
affected lands have a voice in decid-
ing whether a State will assume legal
jurisdiction on their land.
I urge the Congress to enact legis-
lation that would provide for tribal
consent before such extensions of
jurisdiction take place.54
The amendments to PL 280, contained in HR
2516, passed the Senate on March 11, 1968.
The House then passed the bill without going
to conference. PL 280 now no longer permitted
a state to unilaterally assert civil and/or crimi-
nal jurisdiction without Indian consent by pop-
ular vote. It must be remembered that such
assertions only applied prospectively. That is.
according to the provisions of section 403 (b),
jurisdiction previously acquired under PL 280,
unilaterally imposed or not, was not affected.
There was no retroactive consent requirement,
so those states which had acquired either full
or partial jurisdiction prior to the 1968 amend-
ments still retained it.
a. Retrocession
Since the major provisions of the 1968
amendments to PL 280 ensured Indian consent
before imposition of jurisdiction, it quickly
became clear that the more controversial pro-
vision would be the retrocession procedure.
Under the terms of the Act, (see section 403)
either a mandatory or an optional state could
retrocede all or a part of the jurisdiction over
Indians which it possessed. The process is sim-
ple: the sfafe initiates the retrocession, and it
In some PL 280 states there is a
growing sentiment that retroces-
sion is both equitably and eco-
nomically necessary and the
support of these states may be
forthcoming in a retrocession
movement.
is within the discretion of the Secretary of the
Interior whether or not to accept such retroces-
sion, in whole or in part.55 It is presently unclear
whether the term "state" means the state leg-
islature or the executive (governor). Either or
both may be sufficient to have a valid retroces-
sion process begin.
The retrocession provisions are inadequate,
as they still do not provide for mandatory Indian
input in a retrocession procedure. A tribe may
not initiate retrocession of its own accord. The
procedure begins with the state and is decided
by the federal government. Indians are still
excluded from the decision-making process.
Such a process is not in accord with a federal
policy of Indian self-determination. Despite the
obvious problems, the potential for a substan-
tial retrocession movement is promising.
Intensive lobbying of the Senators and Repre-
sentatives affected by states may be the answer.
S. 1722, The Criminal Code Reform Act of
1979. a comprehensive revision of the federal
criminal code, contained in section 161 a pro-
vision for retrocession of state jurisdiction over
Indians. In some PL 280 states there is a grow-
ing sentiment that retrocession is both equita-
bly and economically necessary and the sup-
Institute for the Development of Indian Law
IV-57
-------
port of these states may be forthcoming in a
retrocession movement.
D. The Effects of PL 280
What are some of the effects of criminal
jurisdiction under PL 280 on Indian reserva-
tions? The answer, not suprisingly, is inade-
quate law enforcement, and poor relations
between Indians and surrounding communi-
ties, and general confusion. Since the federal
government allowed the states to assume juris-
diction over Indians the law enforcement sit-
uation in Indian Country has worsened. States
were accorded jurisdiction from the-federal
government but no federal dollars were appro-
priated to pay for the costs of policing the res-
ervations. States and localities had to fund such
enforcement, with the actual financial burden
most often falling on county and local govern-
ments, which had not asked for jurisdiction
over their Indian neighbors. These municipal-
ities view Indians and Indian lands as non-tax
paying entities, and usually refuse to spend
"their" tax revenues for on-reservation
enforcement. In addition, the rural setting and
isolated nature of most Indian communities
nearly ensures poor law enforcement. Tribes
and individual Indians cite numerous cases of
local police departments failing to respond to
calls for assistance.
Poor community relations between Indians
and the surrounding non-Indian population often
results in discriminatory treatment toward
Indians in the state and local criminal justice
system. The non-Indian local administrations
cannot identify with Indian culture, moral val-
ues, and social standards, with more inequita-
ble treatment as the end result.
Confusion abounds in those states which have
asserted only partial jurisdiction under PL 280.
Police officers in certain counties in Washing-
ton State need tract books (books describing
land boundaries and giving the names of the
owners of each parcel of land) to effectively
enforce the partial checkerboard jurisdiction
that state has chosen to assert. Other counties
are well known for their failure to enforce the
law at all in Indian Country.
The ultimate effect of this situation is a gen-
erally deplorable stale of law enforcement in
Indian Country, with no resolution of the prob-
lem other than complete retrocession of all
criminal jurisdictional assertions by the states.
Indian Jurisdiction
IV-58
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Appendix A
PL 83-280
PUBLIC LAW 280
CHAPTER 505
AN ACT
To confer jurisdiction on the State of California, Minnesota, Nebraska, Oregon, and
Wisconsin, with respect to criminal offenses and civil causes of action committed or
arising on Indian reservations within such States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That chapter 53 of
title 18, United States Code, is hereby amended by inserting at the end
of the chapter analysis preceding section 1151 of such title the
following new item:
"1162. State jurisdiction over offenses committed by or against Indians in the Indian
country."
SEC. 2. Title 18, United States Code, is hereby amended by inserting
in chapter 53 thereof immediately after section 1161 a new section, to
be designated as section 1162, as follows:
"§ 1162. STATE JURISDICTION OVER OFFENSES COMMITTED BY OR
AGAINST INDIANS IN THE INDIAN COUNTRY
"(a) Each of the States listed in the following table shall have
jurisdiction over offenses committed by or against Indians in the
areas of Indian country listed opposite the name of the State to the
same extent that such State has jurisdiction over offenses committed
elsewhere within the State, and the criminal laws of such State shall
have the same force and effect within such Indian country as they
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 the State
Oregon All Indian country within the State, except the Warm
Springs Reservation
Wisconsin All Indian country within the State, except the Me-
nominee Reservation
l"(b) Nothing in this section shall authorize the alienation, en-
cumbrance, or taxation of any real or personal property, including
water rights, belonging to any Indian or any Indian tribe, band, or
community that is held in trust by the United States or is subject to a
restriction against alienation imposed by the United States; or shall
authorize regulation of the use of such property in a manner incon-
sistent with any Federal treaty, agreement, or statute or with any
regulation made pursuant thereto: or shall 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
hunting, trapping, or fishing or the control, licensing, or regulation
thereof.
"(c) The provisions of sections 1152 and 1153 of this chapter shall
not be applicable within the areas of Indian country listed in subsec-
tion (a) of this section."
Atifunl 15. 1953
1H. R. 1083)
67 Slat. SR8
Indian*.
State jurisdiction
over criminal offenses.
1589
Taxation of property.
etc.
Institute for the Development of Indian Law
IV-59
-------
State jurisdiction
«v*r civil routes.
SEC. 3. Chapter 85 of title 28, United States Code, is hereby amended
by inserting at the end of the chapter analysis preceding section 1331
of such title the following new item:
"1360. State civil jurisdiction in actions to which Indians are parties."
SEC. 4, Title 28, United States Code, is hereby amended by inserting
in chapter 85 thereof immediately after section 1359 a new section, to
be designated as section 1360, as follows:
*•§ 1360. STATE CIVIL JURISDICTION IN ACTIONS TO WHICH INDIANS
ARE PARTIES
"(a) Each of the States listed in the following table shall have
jurisdiction over civil causes of action between Indians or to which
Indians are parties which arise in the areas of Indian country listed
opposite the name of the State to the same extent that such State has
jurisdiction over other civil causes of action, and those civil laws of
such State that are of general application to private persons or private
property shall have the same force and effect within such Indian
country as they 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 the State
Oregon All Indian country within the State, except the Warm
Springs Reservation
Wisconsin All Indian country within the State, except the Me-
nominee Reservation
Taxation of property.
etc.
1590
Repeal
Removal of leral im-
pediment.
"(b) Nothing in this section shall authorize the alienation, encum-
brance, or taxation of any real or personal property, including water
rights, belonging to any Indian or any Indian tribe, band, or commu-
nity that is held in trust by the United States or is subject to a
restriction against alienation imposed by the United States; or shall
authorize regulation of the use of such property in a manner incon-
sistent with any Federal treaty, agreement, or statute or with any
regulation made pursuant thereto; or shall confer jurisdiction upon
the State to adjudicate, in probate proceedings or otherwise, the
ownership or right to possession of such property or any interest
therein.
"(c) Any tribal ordinance or custom heretofore or hereafter adopted
by an Indian tribe, band, or community in the exercise of any
authority which it may possess shall, if not inconsistent with any
applicable civil law of the State, be given full force and effect in the
determination of civil causes of action pursuant to this section."
1SEC. 5. Section 1 of the Act of October 5,1949 (63 Stat. 705, ch. 604),
is hereby repealed, but such repeal shall not affect any proceedings
heretofore instituted under that section.
SEC. 6. Notwithstanding the provisions of any Enabling Act for the
admission of a State, the consent of the United States is hereby given
to the people of any State to amend, where necessary, their State
constitution or existing statutes, as the case may be, to remove any
legal impediment to the assumption of civil and criminal jurisdiction
in accordance with the provisions of this Act: Provided, That the
provisions of this Act shall not become effective with respect to such
assumption of jurisdiction by any such State until the people thereof
have appropriately amended their State constitution or statutes as
the case may be.
Indian Jurisdiction
IV-60
-------
SE& 7. The consent of the United States is hereby given to any con«m <>r u.s to
other State not having jurisdiction with respect to criminal offenses or oth'r Stmt"
civil causes of action, or with respect to both, as provided for in this
Act, to assume jurisdiction at such time and in such manner as the
people of the State shall, by affirmative legislative action, obligate and
bind the State to assumption thereof.
Approved, August 15,1953.
IV-61
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IV-62
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V
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PREPARING PRESENTATIONS FOR
AN AMERICAN INDIAN AUDIENCE
Indian Water Issues
Indian water rights evolved from the Supreme Court decision of Winters v. United States
in 1908. The case involved the Fort Belknap Reservation in Montana. The Reservation
was created by an agreement in 1880 from a larger area that had been set aside for the
Tribes. The agreement described one boundary of the reservation as being the middle
of the Milk River, but it did not mention the use of water. Thereafter, white settlers off
the reservation built dams that diverted the flow of the river and interfered with
agricultural uses by the Indians. The settlers claimed they owned the water after the
reservation was established but prior to any use of water by the Indians.
The Supreme Court held that when the Fort Belknap lands were reserved by the 1888
agreement, water rights for the Indians were also reserved by necessary implication. The
Court thought it unreasonable to assume that Indians would reserve lands for farming and
pasture without also reserving the water to do these things. The Court also held that this
implied reservation of water was unaffected by the subsequent admission of Montana into
the Union "upon an equal footing with the original States."
Despite the clear ruling of Winters, Indian water rights were largely ignored for many
decades. Indian people had to fight long and hard to finally get rulings on water issues
is the 1960's and after. Water issues, as you know, are very controversial and sometime
very personal issues in Indian country.
The Role of the Federal Government
The Tribal Perspective
Tribes view all Federal agencies as having a "trust responsibility" to Indian Tribes. They
believe they are entitled to the water they need and to the right to contract for the
operation and maintenance of any water facilities.
The Federal Perspective
The U.S. Congress generally decides who gets water under certain settlements.
Sometimes they also decide the issue of who contracts for the operation and maintenance
of Reclamation projects. The Tribes are not always entitled to what they believe they
should have.
NAT EC
v-i
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Working Effectively With Indian Tribes
Reclamation is also responsible for providing water and power to many non-Indians.
They must consider the needs and entitlements of both groups. How does Reclamation
balance these issues? How does the Park Service or the Bureau of Land Management
balance Indian and non-Indian concerns?
Think Indian
When you address an Indian audience, put yourself in their place. What is their
perspective? Are they happy you built a dam on their land or traded some of their land
for other land? What did that project do to their land, their culture, their lifestyle? Have
they historically supported your project? What did the dam or project do the land,
culture, and lifestyle of the non-Indians in the community?
Avoid cliches
Never start your presentation by trying to convince your audience that you are "part
Indian". If you are a member of an Indian Tribe and want to share that fact, fine. If you
are not a member of a Tribe but you think you have some Indian ancestry, keep it to
yourself.
Do your homework and talk about the specific history of the Tribes you are addressing.
Don't talk in generalities like "all Tribes had treaties with the Federal Government."
These kind of statements alert your audience that you don't know your facts. Therefore,
they will assume you cannot be trusted.
The list of Tribes on the following page show the distribution of Tribes by State. If you
are making a presentation in California refer to the number of Tribes and learn something
about some of them.
Don't Talk Down to Your Audience
Don't put yourself in the role of the "Great White Father" and assume you know more
than your audience. Avoid using large words and bureaucratic jargon, but don't deliver
a presentation prepared for children.
V-1
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Working Effectively With Indian Tribes
How to Dress for Your Message
First and foremost you must be comfortable with how you look. If you always wear a
suit, then a suit is what you should wear for a presentation to an Indian audience. (Try
to avoid navy blue, it looks like the FBI coming to the reservation).
If you are working with a Tribe over a long period and have built a good working
relationship, you can dress down after your initial meetings. Slacks and a shirt with an
open collar and bolo tie is a friendly look then a three piece suit.
Indian women often wear slacks. If you are a woman, start your meetings with business
clothes but again, as you build a relationship you may want to trade your suit for a jean
skirt and cotton sweater. Don't go native with too much Indian jewelry and Indian
design! Remember, even when you spend a lot of time on the reservation and have a
good relationship with Tribal members, you are an outsider.
How to Evaluate Your Presentation
If your audience shows the usual response of clapping and asking questions, you are
lucky. If you are thanked by a Tribal representative and presented with a gift, you a
lucky. If your message was bad news and people simply got up and left, then they heard
your message. If people were rude, they also heard you.
Don't take an unfriendly response personally! That is very difficult advice to follow but
sometimes you are simply seen as the "Federal Government doing it again!"
Generally, Tribal people are very appreciative of Federal employees taking the time to
meet with them. They will treat you kindly, feed you and joke with you. To measure
the success of your presentation, you must be honest with yourself about the message.
Ask yourself the following questions:
Was it good news or bad?
Was it honest?
Was it fair?
Did your presentation show respect for the Tribe?
Did you do your homework and address the Tribe's history, or did you talk in
generalities?
NATEC
V-3
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Working Effectively With Indian Tribes
If you avoid stereotypes and show Indian people the respect they deserve, generally they
will do the same.
Relax, enjoy your audience, and learn history from another perspective.
V-A
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In the chart which follows, an attempt has been
made to describe key values adhered to by most
Indian groups. Educational considerations to reflect
upon are also mentioned. The chart covers many fun-
damental values, attitudes, and behaviors but is by no
means exhaustive.
Some individuals reviewing the chart will argue that
not all American Indians believe or behave in this
way. However, there are enough similarities to war-
rant the inclusion of each characteristic described. It is
also important that an open discussion about cultural
beliefs, including important tribal taboos, be initiated.
During such discussions it is important to remember
that many of the values and characteristics described
are also shared by members of other cultures and that
no culture is uniformly unique in its values, beliefs,
and characteristics. It should also be noted that varia-
tions occur among Indians. This listing is not designed
to establish still another set of sterotypes.
It should also be noted that the specific characteris-
tics highlighted here are defined in ways that show
impact on the educational processes used in teaching
children and adolescents. It is in the spirit of encour-
aging improved rapport between Indians and non-
Indians that the chart is presented.
V-5
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V-6
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Indian Values, Attitudes, and Behaviors, Together
with Educational Considerations
Vtlues
Attitudes and behaviors
Educational considerations
I. Cooperation '• Cooperation is highly valued. The value
placed on cooperation is strongly rooted
in the past, when cooperation was neces-
sary for the survival of family and group.
Because of strong feelings of group soli-
darity, competition within the group is
rare. There is security in being a member
of the group and in not being singled out -
and placed in a position above or below
others. Approved behavior includes im-
proving on and competing with one's
own past performance, however. The
sense of cooperation is so strong in many
tribal communities that democracy means
consent by consensus, not by majority
rule. Agreement and cooperation among
tribal members are all-important. This
value is often at odds with the competi-
tive spirit emphasized in the dominant
society.
1. A common result of the disparity between
cooperation and competition is that, under
certain circumstances, when a fellow In-
dian student does not answer* question
in class, some Indian children may state
they too do not know the answer, even
though they might. This practice stems
from their noncompetitive culture and
concern that other individuals do not
lose face.
2. Group
Harmonv
Emphasis is placed on the group and the
importance of maintaining harmony within
the group. Most Indians have a low ego
level and strive for anonymity. They
stress the importance of personal orienta-
tion (social harmony) rather than task
orientation. The needs of the group are
considered over those of the individual.
This value is often at variance with the
concept of rugged individualism.
2. One result of the difference between
group and individual emphasis is that
internal conflict may result since the
accent in most schools is generally on
work for personal gain, not on group
work. The Indian child may not forge
ahead as an independent person and may
prefer to work with and for the group.
Some educators consider this to be be-
havior that should be discouraged and
modified.
3. Modesu
The value of modesty is emphasized.
Even when one does well and achieves
something, one must remain modest.
Boasting and loud behavior that attract
attention to oneself are discouraged. Mod-
esty regarding one's physical body is also
common among most Indians.
3. Indian children and their parents may
not speak freely of their various accom-
plishments (e.g., traditional Indian danc-
ing; championships or rodeo riding
awards won). Therefore, -non-Indians are
generally unaware of special achieve-
ments. Regarding the matter of physical
modesty, many Indian students experi-
ence difficulty and embarrassment in
physical education classes and similar
classes in which students are required to
undress in front of others.
V-7
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Indian Values, Attitudes, and Behaviors, Together with Educational Considerations (Continued)
Values
Attitudes and behaviors
Educational considerations
4. Autonomy
Value is placed on respect for an individ-
ual's dignity and personal autonomy.
People are not meant to be controlled.
One is taught not to interfere in the
affairs of another. Children are afforded
the same respect as adults. Indian par-
ents generally practice noninterference
regarding their child's vocation. Indians
support the rights of an individual. One
does not volunteer advice until it is asked
for.
4. A conflict in these essential values is evi-
dent in circumstances in which Indians
resist the involvement of outsiders in
their affairs. They may resent non-Indian
attempts to help and give advice, particu-
larly in personal matters. Forcing opin-
ions and advice on Indians on such
things as careers only causes frustration.
5. Placidity 5. Placidity is valued, as is the ability to
remain quiet and still. Silence is comfor-
table. Most Indians have few nervous
mannerisms. Feelings of discomfort are
frequently masked in silence to avoid
embarrassment of self or others. When ill
at ease, Indians observe in silence while
inwardly determining what is expected of
them. Indians are generally slow to dem-
onstrate signs of anger or other strong
emotions. This value may differ sharply
from that of the dominant society, which
often values action over inaction.
This conflict in values often results in
Indian people being incorrectly viewed
as shy, slow, or backward. The silence of
some Indians can also be misconstrued
as behavior that snubs, ignores, or appears
to be sulking.
6. Patience 6. To have the patience and ability to wait
quietly is considered a good quality among
Indians. Evidence of this value is appar-
ent in delicate, time-consuming works of
art, such as beadwork, quillwork, or
sandpainting. Patience might not be valued
by others who may have been taught
"never to allow grass to grow under one's
feet."
6. Educators may press Indian students or
parents to make rapid responses and
immediate decisions and may become
impatient with their slowness and delib-
erateness of discussion.
7. Generosity
7. Generosity and sharing are greatly valued.
Most Indians freely exchange property
and food. The respected person is not
one with large savings but rather.one
who gives generously. Individual owner-
ship of material property exists but is
sublimated. Avarice is strongly discour-
aged. While the concept of sharing is
advanced by most cultures, it may come
into conflict with the value placed by the
dominant society on individual ownership.
7. Some educators fail to recognize and
utilize the Indian students' desire. to
share and thus maintain good personal
relations with their peers.
V-8
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Values
Attitudes and behaviors
Educational considerations
8. Indifference
to Ownership
8. Acquiring material goods merely for the
sake of ownership or status is not as
important as being a good person. This
was a value held by many Indians in
times past. The person who tried to
accumulate goods was often viewed with
suspicion or fear. Vestiges of this value
are still seen among Indians today who
share what little they have, at times to
their own detriment. Holding a "give-
away" at which blankets, shawls, and
numerous other items, including money,
are publicly given away to honor others
is still a common occurrence, even in
urban areas. Because of this traditional
outlook, Indians tend not to be status
conscious in terms of material goods.
Upward social mobility within the domi-
nant non-Indian society is not actively
sought.
8. Non-Indians frequently have difficulty
understanding and accepting the Indian's
lack of interest in acquiring material
goods. If the student's family has an
unsteady or nonexistent income, educa-
tors may incorrectly feel that economic
counseling- is in order.
9. Indifference 9. Traditionally, Indians have not sought to
to Saving acquire savings accounts, life insurance
policies, and the like. This attitude results
from the past, when nature's bounty pro-
vided one's needs. Not all food could be
saved, although what meat, fruit, or fish
that could be preserved by salt curing or
drying was saved. Most other needs (e.g.,
food, clothing, shelter, and land) were
provided by nature in abundance, and
little need existed to consider saving for
the future. In Indian society, where shar-
ing was a way of life, emphasis on saving
for one's own benefit was unlikely to be
found. This value may be at odds with
the dominant culture, which teaches one
to forgo present use of time and money
for greater satisfactions to come.
9. Emphasis on the European industrial
viewpoint in most educational systems
causes frustration and anxiety for the
Indian student and parent, since it con-
flicts sharply with so many other values
honored by Indians (sharing, generosity,
and so on).
10. Indifference
to Work Ethic
10. The Puritan work ethic is foreign to most
Indians. In the past, with nature provid-
ing one's needs, little need existed to
work just for the sake of working. Since
material accumulation was not impor-
tant, one worked to meet immediate,
concrete needs. Adherence to a rigid
work schedule was traditionally not an
Indian practice.
10. Indians often become frustrated when
the work ethic is strongly emphasized.
The practice of assigning homework or
in-class work just for the sake of work
runs contrary to Indian values. It is
important that Indians understand the
value behind any work assigned, whether
in school or on the job.
V-9
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Indian Values, Attitudes, and Behaviors, Together with Educational Considerations (Continued)
Values
Attitudes and behaviors
Educational considerations
11. Moderation
in Speech
11. Talking for the sake of talking is discour-
aged. In days past in their own society,
Indians found it unnecessary to say hello,
good-bye, how are you, and so on. Even
today,* many Indians find this type of
small talk unimportant. In social interac-
tions Indians emphasize the feeling or
emotional component rather than the
verbal. Ideas and feelings are conveyed
through behavior rather than speech.
Many Indians still cover the mouth with
the hand while speaking as a sign of
respect. Indians often speak slowly, quietly,
and deliberately. The power of words is
understood; therefore, one speaks care-
fully, choosing words judiciously.
II. The difference in the degree of verbosity
may create a situation in which the
Indian does not have a chance to talk at
all. It may also- cause non-Indians to
view Indians as shy, withdrawn, or disin-
terested. Indians tend to retreat when
someone asks too many questions or
presses a conversation. Because many
Indians do not engage in small talk, non-
Indians often consider Indians to be
unsociable.
12. Careful 12. Being a good listener is highly valued.
Listening Because Indians have developed listening
skills, they have simultaneously devel-
oped a keen sense of perception that
quickly detects insincerity. The listening
skills are emphasized, since Indian cul-
ture was traditionally passed on orally.
Storytelling and oral recitations were
important means of recounting tribal
history and teaching lessons.
12. Problems may arise if Indian students
are taught only in non-Indian ways.
Their ability to follow the traditional
behavior of remaining quiet and actively
listening to others may be affected. This
value may be at variance with teaching
methods that emphasize speaking over
listening and place importance on express-
ing one's opinion.
13. Careful 13. Most Indians have sharp observational
Observation skills and note fine details. Likewise,
nonverbal messages and signals, such as
facial expressions, gestures, or different
tones of voice, are easily perceived. Indi-
ans tend to convey and perceive ideas
and feelings through behavior.
13. The difference between the use of verbal
and nonverbal means of communication
may cause Indian students and parents
to be labeled erroneously as being shy,
backward, or disinterested. Their keen
observational skills are rarely utilized or
encouraged.
14. Permissive 14. Traditional Indian child-rearing practi-
Child ces are labeled permissive in comparison
Rearing with European standards. This misun-
derstanding occurs primarily because In-
dian child rearing is self-exploratory rather
than restrictive. Indian children are gen-
erally raised in an atmosphere of love. A
great deal of attention is lavished on
them by a large array of relatives, usually
including many surrogate mothers and
fathers. The child is usually with relatives
in all situations. Indian adults generally
lower rather than raise their voices when
correcting a child. The Indian child learns
to be seen and not heard when adults are
present.
14. In-school conflicts may arise since most
educators arc taught to value the outgo-
ing child. While an Indian child may be
showing respect by responding only when
called upon, the teacher may interpret
the behavior as backward, indifferent, or
even sullen. Teachers may also misinter-
pret and fail to appreciate the Indian
child's lack of need to draw attention,
either positive or negative, upon himself
or herself.
V-10
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Values
Attitudes and behaviors
Educational considerations
IS. View of IS. Time is viewed as flowing, as always
Time as being with us. Time is relative; clocks are
Relative not watched. Things are done as they
have to be done. Time is, therefore, flexi-
ble and is geared to the activity at hand.
This attitude is rooted in the past, when
only the sun, moon, and seasons were
used to mark the passage of time. Many
Indian languages contain no word for
time as well as no words to denote a
future tense. This view of time is radi-
cally different from that of the dominant
society, for which careful scheduling of
activities is important. In that view time
is linear and moves at a fixed, measur-
able rate. Emphasis is placed on using
every minute.
15. Because of the influence of the tradi-
tional view of time, some Indian students
and parents may clash with educators
when they do not arrive at the appointed
hour for class or a meeting. Non-Indians
may mistakenly interpret Indians' differ-
ent attitude toward time as irresponsible.
16. Orientation 16. Indians are more oriented to living in the
to the Present present. There is a tendency toward an
immediate rather than postponed gratifi-
cation of desires. Living each day as it
comes is emphasized. This value is closely
tied to the philosophy that one should be
more interested in being than in becoming.
16. One result of the disparity between the
Indian's present orientation and the Euro-
pean's future orientation is that frustra-
tion often results when Indian students
are pressured to forgo present needs for
future vague rewards.
17. Pragmatism 17. Most American Indians are pragmatic.
Indians tend to speak in terms of the
concrete rather than the abstract or
theoretical.
17. In learning situations educators frequently
place primary emphasis on the memorization
of abstract theories, concepts, formulas, and so
on and provide examples only to validate a
particular theory. Indian students often learn
more rapidly if there is greater emphasis on
concrete examples, with discussion of the ab-
stract following.
18. Veneration 18. Indian people value age. They believe
of Age that wisdom comes with age and expe-
rience. Tribal elders are treated with
great respect. It is not considered neces-
sary to conceal white hair or other signs
of age. This stage of life is highly esteemed.
To be old is synonymous with being
wise. The talents of the elders are utilized
for the continuance of the group. Hence,
even today there is little evidence of a
generation gap, since each age group is
afforded respect. The Indian view of
aging is at odds with the emphasis on
youthfulness and physical beauty evident
in the dominant culture.
18. Conflict may result when Indians are
influenced by non-Indian attitudes toward
youthfulness. A generation gap may result,
causing a loss to Indian people of the
wisdom and knowledge of the elders,
who are the speakers of native languages
and the carriers of the culture.
v-n
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Indian Values, Attitudes, and Behaviors, Together with Educational Considerations (Continued)
Values Attitudes and behaviors Educational considerations
19. Respect for
Nature
19. Because nature cannot be regulated, In-
dians formed a cooperative way of life to
function in balance with nature. If sick-
ness occurs or food is lacking, the Indian
believes that the necessary balance or
harmony has somehow been destroyed.
Nature is full of spirits and hence spiri-
tual. Indians fashioned their way of life
by living in harmony with nature. As a
result, even today most Indians do not
believe in progress at the expense of all
else. Many Indians have also been taught
• -to reject a strictly scientific explanation
of the cosmos in favor of a supernatural
one. Certain tribes adhere to restrictions
against touching certain animals. The
Indian respect for nature is-in opposi-
tion to the value others place on the
importance of controlling and asserting
mastery over nature.
19. Although the general public, including
the school system, is becoming more con-
scious of ecology, the continuing empha-
sis on man's attempts to control nature
runs contrary to what Indian students
are taught by their people. In science
classes young Indians may also have dif-
ficulties because of their particular tribe's
taboo against touching, let alone dissect-
ing, frogs and other reptiles. In general,
because of their respect for all of nature,
the practice of using animals in science
experiments is met with revulsion by
many Indians.
20. Spirituality 20. Indians hold to a contemplative rather
than a utilitarian philosophy. Religious
aspects are introduced into all areas of
one's life. Much emphasis is placed on
the mystical aspects of life. Religion is an
integral part of each day; it is a way of
life. There is no evidence that any Indian
group ever imposed its system of reli-
gious beliefs on another group, nor were
there separate denominations that sought
to attract members.
20. The Indian value placed upon the spiri-
tual is frequently misunderstood by non-
Indians. Additional frustration may result
when spirituality is avoided in most
school discussions, since it is not seen as
being an integral part of a person's life.
This practice ignores an aspect of life
considered essential and natural to Indians.
21. Discipline 21. Indians believe that demeaning personal
criticism and harsh discipline only dam-
age a child's self-image and are thus to be
avoided. Most Indian parents do not
practice spanking. Noncorporal means
of discipline are preferred. Traditional
forms of noncorporal punishment include
frowning, ignoring, ridiculing, shaming,
or scolding the individual or withholding
all praise. Sibling pressure and peer pres-
sure are also important means to control
behavior. Among many Indian groups,
relatives other than the natural parents
are responsible for disciplining the Indian
child (e.g., the mother's brother), thereby
leaving the father free for a closer, non-
threatening relationship with the child.
In addition, criticism of another is tradi-
tionally communicated indirectly through
another family member rather than directly
as in the dominant society. In general,
Indians still use withdrawal as a form of
disapproval.
21. The difference in attitude toward disci-
pline frequently causes problems when
educators and social service workers con-
sider Indian parents to be unfit because
they will not spank their children or oth-
erwise punish them in public. In addi-
tion, since Indian children are sometimes
disciplined by ridicule, they may fear
making a mistake in class if they are not
prepared adequately. Additional communi-
cation problems may arise when educa-
tors directly criticize an Indian student
or parent, an act that is viewed by tradi-
tional Indian standards as rude and
disrespectful.
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Values
Attitudes and behaviors
Educational considerations
22. Importance of 22. The importance of and value placed on
the Family the Indian extended family cannot be
underestimated. Aunts are often consid-
ered to be mothers, just as uncles may
be considered fathers; and cousins may
be considered brothers and sisters of the
immediate family. Even clan members
are considered relatives. Thus, Indian
cultures consider many more individuals
to be relatives than do non-Indian cul-
tures. This large network of relatives pro-
vides much support and a strong sense of
security. Occasionally, a grandparent, an
aunt, or other relative may actually raise
the child. Since traditional Indian homes
were small, family members became accus-
tomed to being in close proximity to one
another.
22. Educators and social service personnel
often fail to understand the validity of
various Indian relatives who function
exactly as natural parents do and may
consider the natural parents to be lax in
their duties. Indian children sometimes
live with relatives, even when there are
no problems at home. Whether an Indian
child resides (temporarily or permanently)
with members of the extended family,
this behavior should not be considered
abnormal or indicative of problems.
23. Importance 23. Indians resist assimilation and, instead,
of Cultural emphasize the importance of cultural
Pluralism pluralism. Indian people desire to retain
as much of their cultural heritage as pos-
sible. They leave the reservation to find
city jobs and educational opportunities,
not to stop being Indian. Indians avoid
educators with reformist attitudes who
strive to propel Indian students into the
American mainstream. In reservation com-
munities and even in urban areas where
there are anti-Indian attitudes among the
non-Indian population, Indians tend to
stay among Indians and go into non-
Indian areas only when necessary.
23. Confusion and misunderstanding often
resuh when Indians go through the motions
of assimilating outwardly (e.g., adopting
the use of material items, clothing, and
so on) when they have not really accepted
European-American values.
24. Avoidance 24. Most Indian people avoid prolonged
of Eye direct eye contact as a sign of respect.
Contact Among some tribes, such as the Navajo,
one stares at another only when angry. It
is also a simple matter of being courteous
to keep one's eyes cast downward.
24. Frequently and erroneously, non-Indians
presume that Indians are disrespectful,
arc behaving in a suspicious manner, or
are hiding something when they fail to
look a person in the eye. Since educators
consider direct eye contact as a measure
of another's honesty and sincerity, they
often become upset with Indian students
and say, "Look at me when I speak to
you!" when the student is looking down
out of respect.
25. Holistic 25. Sickness implies an imbalance within the
Approach individual and between the individual
to Health and his or her universe. Indians believe
in a holistic approach to health (i.e., the
whole individual must be treated, not
merely one physical segment of the body).
25. Many Indians still prefer being attended
by an Indian medicine person rather
than by or in addition to a non-Indian
physician. The use of chemical prescrip-
tions may be avoided. When counseling
an Indian family on health concerns,
educators and social service personnel
must recognize the validitv of Indian
V-13
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Indian Values, Attitudes, and Behaviors, Together with Educational Considerations (Continued)
Values Altitudes and behaviors Educational considerations
26. Importance of 26. It is important to Indians to retain their
Bilingualism native languages. Many cultural elements
arc contained within the context of a
native language. Certain words and con-
cepts are not easily translatable into En-
glish. Each Indian language contains the
key to that society's view of the universe.
26. Often, non-Indians become impatient
with Indians who still speak their own
language and whose grasp of English may
not be as strong as or as fluent as the
non-Indians would prefer. The Indian
parent and student may need a longer
time to formulate a response, since they
may be thinking in their native language
and must translate into English before
verbalizing. Clear and accurate com-
munication between Indians and non-
Indians may be difficult, since words do
not always translate identically in cither's
language. Because the general popula-
tion prefers that everyone speak English,
the importance of native languages goes
unrecognized.
27. Caution
•\
1
27. Indians use caution in personal encoun-
ters and are usually not open with others.
Information about one's family is not
freely shared, and personal and family
problems are generally kept to oneself.
Indians may have difficulty communicat-
ing their subjective reactions to situa-
tions. Some of the personal caution
stems from a hesitancy about how they
will be accepted by others. Because of
past experiences Indians may fear that
non-Indians will be embarrassed for or
ashamed of Indian individuals, family,
or friends.
27. Because the American ideal is. to appear
friendly and open, although one may be
hiding one's true feelings, Indians and
non-Indians may be uncomfortable with
each other because of these differing
modes of behavior. While non-Indians
may see Indians as aloof and reserved,
Indians may see European-Americans as
superficial and hence untrustworthy.
v-u
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Working Effectively With Indian Tribes
COMPARISON OF LIFESTYLES
[Edwards, 1977; Palema, 1975; Miller & Bishop 1974]
Nurturing System
(Native American)
Social Structure
Sustaining System
(Anglo-Dominant Culture)
a. Non-status seeking a.
b. Decentralized government Family/clan b.
governance predominate
c. Life family centered c.
d. Extended family d.
e. Frequent, ongoing contact with relatives e.
f. Family, a producing unit of society f.
g. Matrilineal orientation g.
h. Loosely continued rules and regulations h.
Economics
Status seeking
Centralized government
Life divided between family, work and
outside interests
Nuclear family
Sporadic contact with relatives
Family, consuming unit of society
Patrilineal orientation
Legalistic approach to governance
a. Depend on food availability a.
b. Sharing of basics of life expected to be b.
cared for
c. Not accept private ownership of land c.
d. Work limited to meeting family needs d.
e. Harmony with nature-environment e.
f. Use only what is needed f.
g. Slow pace—time sense rhythmical and in g.
harmony with surrounding
h. Present orientation h.
Money economy
Self-sufficiency
Ownership of land promoted
Work ethic
Subdue the earth
Accumulation valued
Rapid pace—time an economic commodity
Future orientation
Family
a. Family, work centered
b. Family, first priority
c. Discipline threat from external sources
d. Discipline in form of threats to physical
well-being or harmony with environment
e. Formal education often questioned
f. Family shares common dwelling areas—
hogan, tepee
a.
b.
c.
d.
Family, activity and support centered
Family may be placed last
Discipline from parents
Discipline withdrawal of love-support
Formal education supported and highly
stressed
Separate living space esteemed and sought
(own bedroom)
NATEC
V-15
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Working Effectively With Indian Tribes
Family (Continued)
g. Giving valued and expected g.
h. Orientation of meeting others' needs h.
i. Retiring approach valued i.
j. Family members expected to be quiet—re- j.
spectful
k. Respect for all things k.
1. Dress: modest 1.
Receiving often expected (matter of rights)
Self-gratification increasingly stressed
Assertiveness valued
Family members often verbal and challeng-
ing
Respect of authority
Dress: sexy
Communications
a. Limited eye contact a.
b. Decisions-making by consensus b.
c. Emotions controlled—no words for many c.
emotions d.
d. Silence contemplative e.
e. Affection not shown publicly f.
f. Soft speaking voice
Time
Servant of people
Eye contact expected
Decision-making by authority and for repre-
sentation
Emotions expressed—verbalized
Talk and sharing expected
Encourage open expression of affection
More boisterous or louder speaking voice
Time controls
Structured
Courtship
a. Dating and free choice
a. Family-centered
b. Participate in total family
Leisure
Person/skill/interest
Centered often away from family
Death
a. Little or no ceremony around body
b. Great fear of dead
c. Ceremonies in memory of deceased—as in
the "give-away"
V-16
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AMERICAN
INDIANS
TODAY
ANSWERS TO YOUR QUESTIONS
I 9 9 • •
THIRD EDITION
V-17
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Bureau of Indian Affairs
The Bureau of Indian Affairs (BIA) in the U.S. Department of the
Interior, is the federal agency with primary responsibility for working with
federally-recognized Indian tribal governments and with Alaska Native vil-
lage communities. Other federal, state, county and local governmental agen-
cies may work with Indians or Alaska Natives as members of ethnic groups or
as U.S. citizens. The BIA relates its work to federal tribal governments in
what is termed a Ngovernment-to-governmentH relationship.
It must be made clear at this point that BIA does not "run Indian
reservations." Elected tribal governments run Indian reservations, working
with the BIA whenever trust resources or Bureau programs are involved.
Under a U.S. policy of Indian self-determination, the Bureau's main goal
is to support tribal efforts to govern their own reservation communities by
providing them with technical assistance, as well as programs and services,
through 12 area offices and 109 agencies and special offices.
A principal BIA responsibility is administering and managing some 56.2
million acres of land held in trust by the United States for Indians. Develop-
ing forest lands, leasing mineral rights, directing agricultural programs and
protecting water and land rights are a part of this responsibility in
cooperation with the tribes, who have a greater decision-making role in these
matters now than in the past.
Most Indian students (about 89 percent) attend public, private or paro-
chial schools. BIA augments these through funding of 180 Bureau education
facilities, many of which are operated by tribes under contract with the
Bureau. The BIA also provides assistance for Indian college students; voca-
tional training; adult education; a solo parent program; and a gifted and
talented students program.
A part of the Bureau's work is also to assist tribes with local governmental
services such as road construction and maintenance, social services, police
protection, economic development, and enhancement of governance and
administrative skills.
The BIA was established in 1824 in the War Department. It became an
agency of the Department of the Interior when the Department was created
in 1849. Until 1980, BIA was headed by a Commissioner who by law was a
presidential appointee requiring confirmation by the U.S. Senate. The post
remained vacant until 1991 when the post of Deputy Commissioner was filled
by David J. Matheson, an enrolled member of the Coeur d'Alene Tribe of
Idaho, who is responsible for the day-to-day operations of the Bureau. His
post as Deputy Commissioner does not require Senate confirmation. From
1980 to 1991, the BIA was administered by an Assistant Secretary - Indian
Affairs (or his deputy), a post that was created in 1977 by the Interior
Secretary. Five successive Indians have been appointed by the President to
the office. Since 1989, Eddie F. Brown, an enrolled member of the Pasqua
Yaqui Tribe of Arizona, has held the post. He sets policy for the BIA.
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About 87 percent of BIA employees are Indian through Indian pref-
erence in hiring. Under federal law, a non-Indian cannot be hired for a
vacancy if a qualified Indian has applied for the position. To qualify for
preference status, a person must be a member of a federally-recognized
Indian tribe or be of at least one-half Indian blood of tribes indigenous to the
U.S.
BIA EDUCATION PROGRAMS
Legislation — Since the 1970's, two major laws have restructured the BIA
education program. In 1975, the Indian Self-Detennination and Education
Assistance Act (P.L. 93-638) authorized contracting with tribes to operate
education programs. The Educational Amendments Act of 1978 (P.L.
95-561) and technical amendments (P.L. 98-511, 99-89 and 100-297)
mandated major changes in both Bureau-operated and tribally contracted
schools, including decision-making powers for Indian school boards, local
hiring of teachers and staff, direct funding to schools, and increased authority
to the director of Indian Education Programs within the Bureau.
Federal Schools — In 1990-91, the BIA is funding 180 education facilities
including 48 day schools, 39 on-reservation boarding schools, five off-
reservation boarding schools and eight dormitories operated by the Bureau.
Additionally, under "638" contracting, tribes operate 62 day schools, 11
on-reservation boarding schools, one off-reservation boarding school and six
dormitories. The dormitories enable Indian students to attend public schools.
Indian Children in Federal Schools — Enrollment in schools and dormitories
funded by the BIA for 1991 is about 40,841 including 39,092 instructional
and 1.749 dormitory students.
Public School Assistance (Johnson-O'Malley Program) — The BIA provides
funds to public school districts under the Johnson-O'Malley Act of 1934 to
meet the special educational needs of about 225,871 eligible Indian students
in public schools.
Indians in College — Approximately 15,000 Indian students received schol-
arship grants from the BIA in the 1990-91 school year to enable them to
attend colleges and universities. About 432 students receiving BIA assistarce
are in law school and other graduate programs. The total number of Indian
college students is not known, but is estimated to be more than 70,000. Total
appropriations provided through the BIA for Indian higher education was
about S30.2 million in fiscal year 1991.
Tribally Controlled Colleges — Currently, the BIA provides grants for the
operation of 22 tribally controlled community colleges. The number of
Indian students enrolled in these colleges in school year ipon.oi was ao-
proximately 7,050 with a total funding of $23.3 million.
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BIA Post-Secondary Schools - The BIA operates two post-secondary
schools: Haskell Indian Junior College in Lawrence, Kansas, with an enroll-
ment of about 816 students, and Southwestern Indian Polytechnic Institute
at Albuquerque, New Mexico, with about 427 students.
Handicapped Children's Program - Under the Handicapped Children's Act
(P.L. 94-142), the Bureau provides financial support for the educational
costs of an average of 226 such children annually in some 28 different
facilities
Substance/Alcohol Abuse Education Program — BIA education programs in
substance and alcohol abuse provide Bureau schools with curriculum materi-
als and technical assistance in developing and implementing identification,
assessment, prevention, and crisis intervention programs through referrals
and added counselors at the schoob.
BIA HOUSING
The BIA Housing Program administers the Housing Improvement Pro-
gram (HIP), a grant program to which Indians may apply who are unable to
obtain housing assistance from other sources, to repair and renovate existing
housing. In some special cases, HIP provides for the construction of new
homes. It also provides financial help to qualified Indians for down payments
in the purchase of new homes. The grants are made only to those Indians who
do not have the income to qualify for loans from tribal, federal or other
sources of credit.
The 1989 BIA inventory of housing needs on reservations and in Indian
communities shows that of a total of 155,539 existing dwellings, 100,037 met
standards and 55,502 needed replacement (39,516 of which can be ren-
ovated). With the numbers of dwellings needing total replacement (15,986)
and families needing housing (35,886), the BIA Housing Program estimates
that a total of 51,872 new homes are required. The program budget for fiscal
year 1991 is S20.1 million.
The program works cooperatively with the Indian Health Service which
provides water and sewage facilities for the homes, and the Housing and
Urban Development (HUD) program which builds new homes.
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The President's American Indian
Policy
On June 14, 1991, President George Bush issued an American Indian
policy statement which reaffirmed the government-to-government relation-
ship between Indian tribes and the Federal Government.
The President's policy builds upon the policy of self-determination first
announced by President Nixon in 1970, reaffirmed and expanded upon by
the Reagan-Bush Administration in 1983. President Bush's policy moves
toward a permanent relationship of understanding and trust, and designates a
senior staff member as his personal liaison with all Indian tribes. President
Bush's policy statement follows:
Reaffirming The Governmen.t-to~Govern.ment Relationship
Between The Federal Government and Tribal Governments
On January 24, 1983, the Reagan-Bush Administration issued a state-
ment on Indian policy recognizing and reaffirming a government-to-govern-
ment relationship between Indian tribes and the Federal Government. This
relationship is the cornerstone of the Bush-Quayle Administration's policy of
fostering tribal self-government and self-determination.
This government-to-government relationship is the result of sovereign
and independent tribal governments being incorporated into the fabric of our
Nation, of Indian tribes becoming what our courts have come to refer to as
quasi-sovereign domestic dependent nations. Over the years the relationship
has flourished, grown, and evolved into a vibrant partnership in which over
500 tribal governments stand shoulder to shoulder with the other gov-
ernmental units that form our Republic.
This is now a relationship in which tribal governments may choose to
assume the administration of numerous Federal programs pursuant to the
1975 Indian Self-Determination and Education Assistance Act.
This is a partnership in which an Office of Self-Governance has been
established in the Department of the Interior and given the responsibility of
working with tribes to craft creative ways of transferring decision-making
powers over tribal government functions from the Department to tribal
governments.
An Office of American Indian Trust will be established in the Department
of the Interior and given the responsibility of overseeing the trust respon-
sibility of the Department and of insuring that no Departmental action will be
taken that will adversely affect or destroy those physical assets that the
Federal Government holds intrust for the tribes.
I take pride in acknowledging and reaffirming the existence and durabil-
ity of our unique government-to-government relationship.
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Within the White House I have designated a senior staff member, my
Director of Intergovernmental Affairs, as my personal liaison with all Indian
tribes. While it is not possible for a President or his small staff to deal directly
with the multiplicity of issues and problems presented by each of the 510
tribal entities in the Nation now recognized by and dealing with the Depart-
ment of the Interior, the White House will continue to interact with Indian
tribes on an intergovernmental basis.
The concepts of forced termination and excessive dependency on the
Federal Government must now be relegated, once and for all, to the history
books. Today we move forward toward a permanent relationship of under-
standing and trust, a relationship in which the tribes of the nation sit in
positions of dependent sovereignty along with the other governments that
compose the family that is America.
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Federal Appropriations for Indian
Affairs
Over the past decade, the annual budget for the BIA has averaged
pproximately $1 billion. The fiscal year 1991 appropriation for the BIA is
1.5 billion for the principal program categories of: Education, $554.5
lillion; Tribal Services (including social services and law enforcement),
338.9 million; Economic Development, $14.6 million; Navajo-Hopi Settle-
lent, $1.4 million; Natural Resources, $139.7 million; Trust Responsibil-
ries, $74.7 million; Facilities Management, $94.2 million; General
Administration, $112.0 million; Construction, $167.6 million; Indian Loan
ruaranty, $11.7 million; Miscellaneous Payments to Indians, $56.1 million;
nd Navajo Rehabilitation Trust Fund, $3.0 million.
Under the Indian self-determinatioa policy, tribes may operate their own
eservation programs by contracting with the BIA. In fiscal year 1990, tribal
overnments contracted programs totalling $415 million, over 30 percent of
he total BIA budget.
Appropriations for other federal agencies with Indian programs, for FY
991, are: Indian Health Service, $1.4 billion; and Administration for Native
itnericans, $33.3 million (both agencies of the Department of Health and
luman Services); and the Office of Indian Education in the U.S. Department
f Education, $75.3 million.
Other federal departments, such as Agriculture, Commerce, and HUD,
Iso receive funds specifically designated for Indian programs.
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American Indians and Alaska Natives
POPULATION:
According to U.S. Census Bureau figures, there were 1,959,234 American
Indians and Alaska Natives living in the United States in 1990 (1,878,285
American Indians, 57,152 Eskimos, and 23,797 Aleuts). This is a 37.9
percent increase over the 1980 recorded total of 1,420,400. The increase is
attributed to unproved census taking and more self-identification during the
1990 count. The BlA's 1990 estimate is that almost 950,000 individuals of
this total population live on or adjacent to federal Indian reservations. This is
the segment of the total U.S. Indian and Alaska Native population served by
the BIA through formal, on-going relations.
RESERVATIONS:
The number of Indian land areas in the U.S. administered as Federal
Indian reservations (reservations, pueblos, rancherias, communities, etc.)
total 278. The largest is the Navajo Reservation of some 16 million acres of
land in Arizona, New Mexico and Utah. Many of the smaller reservations are
less than 1.000 acres with the smallest less than 100 acres. On each reserva-
tion, the local governing authority is the tribal government. The states in
which the reservations are located have limited powers over them, and only
as provided by federal law. On some reservations, however, a high percent-
age of the land is owned and occupied by non-Indians. Some 140 reservations
have entirely tribally-owned land.
TRUST LANDS:
A total of 56.2 million acres of land are held in trust by the United States
for various Indian tribes and individuals. Much of this is reservation land;
however, not all reservations land is trust land. On behalf of the United
States, the Secretary of the Interior serves as trustee for such lands with
many routine trustee responsibilities delegated to BIA officials.
INDIAN TRIBES:
There are 510 federally recognized tribes in the United States, including
about 200 village groups in Alaska. "Federally-recognized" means these
tribes and groups have a special, legal relationship to the U.S. government
and its agent, the BIA, depending upon the particular situation of each tribe.
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URBAN AND OFF-RESERVATION INDIAN POPULATIONS:
Members of federal tribes who do not reside on their reservations have
limited relations with the B1A, since BIA programs are primarily admin-
istered for members of federally-recognized tribes who live on or near
reservations.
NON-FEDERAL TRIBES AND GROUPS:
A number of Indian tribes and groups in the U.S. do not have a federally-
recognized status, although some are state-recognized. This means they have
no relations with the BIA or the programs it operates. A special program of
the BIA, however, works with those seeking federal recognition status. Of
126 petitions for federal recognition received by the BIA since 1978, eight
have received acknowledgment of tribal status and 12 have been denied.
Twelve other groups gained federal recognition outside the BIA process
through action by the U.S. Congress.
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Indian Health Service
The primary Federal health resource for American Indians and Alaska
Natives is the Indian Health Service (IHS), an agency of the Public Health
Service of the U.S. Department of Health and Human Services. The IHS
operates hospitals and clinics on reservations and provides related health
services for Indian communities. Like the BIA, the IHS contracts with tribes
to operate some of its programs. Some of the significant statistics related to
the state of Indian health in 1991 are as follows:
Birth Rate - Birth rates were 28.0 births per 1,000 in 1986-88. The U.S. all
races rate was 15.7 births per 1,000 in 1987.
Infant Death Rate - The infant death rate was 9.7 per 1,000 live births in
1986-88, while the U.S. all races was 10.1 per 1,000 births in 1987.
Life Expectancy -- In 1979-81, life expectancy was 71.1 years (males, 67.1
years and females 75.1 years). These figures are based on 1980 census
information.
Causes of Death — Diseases of the heart and accidents continue to be the two
major causes of death among American Indians and Alaska Natives. The
1988 age-adjusted death rate for diseases of the heart was 138.1 per
100,000 of the population and 166.3 per 100,000 for all U.S. races. In the
same period, the age-adjusted death rate from accidents was 80.8 percent per
100,000, including 44.7 related to motor vehicle accidents and 36.1 from
other accidents. The U.S. all races 1988 age-adjusted rate was 35.0 per
100,000, including 19.7 related to motor vehicle accidents and 15.3 related
to other accidents.
Suicide Rate — The age-adjusted suicide death rate for the population has
decreased 29 percent since its peak in 1975 (2.1.1 deaths per 100,000
population). The Indian rate for 1988 was 14.5 compared to the U.S. all
races rate of 11.4.
HIV/ AIDS — The numbers of AIDS cases among American Indians and Alaska
Natives is, as yet, relatively low (236 in the period 1982-1990). There are,
however, no firm statistics on the numbers of those who may be HIV-positive.
The IHS is, therefore, directing its attention to education/prevention, sur-
veillance, and treatment programs in cooperation with the BIA in its school
systems, with tribal leaders, and local and state health departments. The
Centers for Disease Control (CDS) provides some funding support toward the
total fiscal year 1991 budget for this work of $3.1 million.
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Answers to Frequently Asked Questions
Who it an Indian?
No single federal or tribal criteria establishes a person's identity as an
Indian. Government agencies use differing criteria to determine who is an
Indian eligible to participate in their programs. Tribes also have varying
eligibility criteria for membership. To determine what the criteria might be
for agencies or tribes, you must contact them directly.
For its purposes, the Bureau of the Census counts anyone an Indian who
declares himself or herself to be such.
To be eligible for Bureau of Indian Affairs services, an Indian must (1) be
a member of a tribe recognized by the federal government and (2) must, for
some purposes, be of one-fourth or more Indian ancestry. By legislative and
administrative decision, the Aleuts, Eskimos and Indians of Alaska are eli-
gible for BLA services. Most of the BIA's services and programs, however, are
limited to Indians living on or near federal reservations.
What is an Indian Tribe?
Originally, an Indian tribe was a body of people bound together by blood
ties who were socially, politically, and religiously organized, who lived
together in a defined territory and who spoke a common language or dialect.
The establishment of the reservation system created some new tribal
groupings when two or three tribes were placed on one reservation, or when
members of one tribe were spread over two or three reservations.
How does an Indian become a member of a tribe?
A tribe sets up its own membership criteria, although the U.S. Congress
can also establish tribal membership criteria. Becoming a member of a
particular tribe requires meeting its membership rules, including adoption.
Except for adoption, the amount of blood quantum needed varies, with some
tribes requiring only a trace of Indian blood (of the tribe) while others
require as much as one-half.
What is a reservation?
In the U.S., there are only two kinds of reservedlands that are well known
— military and Indian. An Indian reservation is land a tribe reserved for itself
when it relinquished its other land areas to the U.S. through treaties. More
recently, Congressional acts, executive orders and administrative acts have
created reservations. Some reservations, today, have non-Indian residents
and land owners.
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Are Indians required to stay on reservations?
No. Indians are free to move above like all other Americans.
Did all Indians speak one Indian language?
No. At the end of the 15th century, more than 300 languages were spoken
by the native population of what is now the United States. Some were linked
by "linguistic stocks" which meant that widely scattered tribal groups had
some similarities in their languages. Today, some 250 tribal languages are
still spoken, some by only a few individuals and others by many. Most Indians
now use English as their main language for communicating with non-tribal
members. For many, it is a second language.
Do Indians serve in the Armed Forces?
Indians have the same obligations for military service as other U.S.
citizens. They have fought in all American wars since the Revolution. In the
Civil War, they served on both sides. Eli S. Parker, Seneca from New York,
was at Appamattox as aide to Gen. Ulyssess S. Grant when Lee surrendered,
and the unit of Confederate Brigadier General Stand Watie, Cherokee, was
the last to surrender. It was not until World War I that Indians' demonstrated
patriotism (6,000 of the more than 8,000 who served were volunteers)
moved Congress to pass the Indian Citizenship Act of 1924. In World War II,
25,000 Indian men and women, mainly enlisted Army personnel, fought on
all fronts in Europe and Asia, winning (according to an incomplete count) 71
Air Medals, 51 Silver Stars, 47 Bronze Stars, 34 Distinguished Flying
Crosses, and two Congressional Medals of Honor. The most famous Indian
exploit of World War II was the use by Navajo Marines of their language as a
battlefield code, the only such code which the enemy could not break. In the
Korean conflict, there was one Indian Congressional Medal of Honor winner.
In the Vietnam War, 41,500 Indians served in the military forces. In 1990,
prior to Operation Desert Storm, some 24,000 Indian men and women were
in the military. Approximately 3,000 served in the Persian Gulf with three
among those killed in action. One out of every four Indian males is a military
veteran and 45 to 47 percent of tribal leaders today are military veterans.
Are Indians wards of the government'?
No. The federal government is a trustee of Indian property, it is not a
guardian of individual Indians. The Secretary of the Interior is authorized by
law, in many instances, to protect the interests of minors and incompetents,
but this protection does not confer a guardian-ward relationship.
Do Indians get payments from the government?
No individual is automatically paid for being an Indian. The federal
government may pay a tribe or an individual in compensation for damages for
resulting from treaty violations, for encroachments on Indian lands, or
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for other past or present wrongs. A tribe or an individual may also receive a
government check for payment of income from their lands and resources, but
this is only because their resources are held in trust by the Secretary of the
Interior and payment for their use has been collected from users by the
federal government in their behalf. Fees from oil or grazing leases are an
example.
Are Indians U.S. citizens?
Yes. Before the U.S. Congress extended American citizenship in 1924 to
all Indians born in the territorial limits of the United States, citizenship had
been conferred upon approximately two-thirds of the Indian population
through treaty agreements, statutes, naturalization proceedings, and by
"service in the Armed Forces with an honorable discharge" in World War I.
Indians are also members of their respective tribes.
Can Indians vote?
Indians have the same right to vote as other U.S. citizens. In 1948, the
Arizona supreme court declared unconstitutional disenfranchising inter-
pretations of the state constitution and Indians were permitted to vote as in
most other states. A 1953 Utah state law stated that persons living on Indian
reservations were not residents of the state and could not vote. That law was
subsequently repealed. In 1954, Indians in Maine who were not then fed-
erally recognized were given the right to vote, and in 1962, New Mexico
extended the right to vote to Indians.
Indians also vote in state and local elections and in the elections of the
tribes of which they are members. Each tribe, however, determines which of
its members is eligible to vote in its elections and qualifications to do so are
not related to the individual Indian's right to vote in national, state or local
(non-Indian) elections.
Do Indians have the right to hold federal, state and local government
offices?
Indians have the same rights as other citizens to hold public office, and
Indian men and women have held elective and appointive offices at all levels
of government. Charles Curtis, a Kaw Indian from Kansas, served as Vice
President of the United States under President Herbert Hoover.
Indians have been elected to the U.S. Congress from time to time for more
than 80 years. Ben Reifel, a Sioux Indian from South Dakota, served five
terms in the U.S. House of Representatives. Ben Nighthorse Campbell, a
member of the Northern Cheyenne Tribe of Montana, was elected to the U.S.
House of Representatives in 1986 from the Third District of Colorado, and is
currently serving in his third term. He is the only American Indian currently
serving in Congress.
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Indians also served and now hold office in a number of state legislatures.
Others currently hold or have held elected or appointive positions in state
judiciary systems and in county and city governments including local school
boards.
Do Indians have the right to own land?
Yes. As U.S. citizens, Indians can buy and hold title to land purchased
with their own funds. Nearly all lands of Indian tribes, however, are held in
trust for them by the United States and there is no general law that permits a
tribe to sell its land. Individual Indians also own trust land which they can
sell, but only upon the approval of the Secretary of the Interior or his
representative. If an Indian wants to extinguish the trust title to his land and
hold title like any other citizen (with all the attendant responsibilities such as
paying taxes), he can do so if the Secretary of the Interior or his authorized
representative, determines that he is able to manage his own affairs. This is a
protection for the individual.
Do Indians pay taxes?
Yes. They pay the same taxes as other citizens with the following excep-
tions applying to those Indians living on federal reservations: (1) federal
income taxes are not levied on income from trust lands held for them by the
United States; (2) state income taxes are not paid on income earned on a
federal reservation; (3) state sales taxes are not paid on transactions made on
a federal reservation, and (4) local property taxes are not paid on reservation
or trust land.
Do laics that apply to non-Indians oho apply to Indians?
Yes. As U.S. citizens, Indians are generally subject to federal, state, and
local laws. On federal reservations, however, only federal and tribal laws
apply to members of the tribe unless the Congress provides otherwise. In
federal lav., the Assimilative Crimes Act makes any violation of state criminal
lav a federal offense on reservations.
Most tribes now maintain tribal court systems and facilities to detain
tribal members convicted of certain offenses within the boundaries of the
reservation. A recent U.S. Supreme Court decision restricted the legal ju-
risdiction of federal tribes on their reservations to members only, meaning
that an Indian tribe could not try in its tribal court a member of another tribe
even though that person might be a resident on the reservation and have
violated its law. There currently are bills in the Congress that would restore
tribes' right to prosecute any Indian violating laws on an Indian reservation.
Does the United States still make treaties with Indians?
Congress ended treaty-making with Indian tribes in 1871. Since then,
relations with Indian groups are by congressional acts, executive orders, and
executive agreements.
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The treaties that were made often contain obsolete commitments which
have either been fulfilled or superseded by congressional legislation. The
provision of educational, health, welfare, and other services by the govern-
ment to tribes often has extended beyond treaty requirements. A number of
large Indian groups have no treaties, yet share in the many services for
Indians provided by the federal government.
The specifics of particular treaties signed by government negotiators
with Indians are contained in one volume (Vol. II) of the publication, "Indian
Affairs, Laws and Treaties," compiled, annotated and edited by Charles
Kappler. Published by the Government Printing Office in 1904, it is now out
of print, but can be found in most large law libraries. More recently, the
treaty volume has been published privately under the title, "Indian Treaties,
1778-1883."
Originals of all the treaties are maintained by the National Archives and
Records Service of the General Services Administration. A duplicate of a
treaty is available upon request for a fee. The agency will also answer
questions about specific Indian treaties. Write to: Diplomatic Branch, Na-
tional Archives and Records Service, Washington, D.C. 20408.
How do Indian tribes govern themselves?
Most tribal governments are organized democratically, that is, with an
elected leadership..The governing body is generally referred to as a "coun-
cil" and" is comprised of persons elected by vote of the eligible adult tribal
members. The presiding official is the "chairman," although some tribes use
other titles such as "principal chief," "president" or "governor." An elected
tribal council, recognized as such by the Secretary of the Interior, has
authority to speak and act for the tribe and to represent it in negotiations with
federal, state, and local governments.
Tribal governments generally define conditions of membership, regulate
domestic relations of members, prescribe rules of inheritance for reservation
property not in trust status, levy taxes, regulate property under tribal
jurisdiction, control conduct of members by tribal ordinances, and admin-
ister justice.
Many tribes are organized under the Indian Reoganization Act (IRA) of
1934. including a number of Alaska Native villages, which adopted formal
governing documents (Constitutions) under the provisions of a 1936 amend-
ment to the IRA. The passage in 1971 of the Alaska Native Claims Settlement
Act, however, provided for the creation of village and regional corporations
under state law to manage the money and lands granted by the Act. The
Oklahoma Indian Welfare Act of 1936 provided for the organization of
Indian tribes within the State of Oklahoma. Some tribes do not operate under
any of these acts, but are nevertheless organized under documents approved
by the Secretary of the Interior. Some tribes continue their traditional forms
of governments.
Prior to reorganization, the tribes maintained t
developed, systems of self-government.
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FEDERALLY REC
''••I ,, ••«,,,
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INDIAN TRIBES
TisV-->•
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Do Indians have special rights different from other citizens?
Any special rights that Indian tribes or members of those tribes have are
generally based on treaties or other agreements between the United States
and tribes. The heavy price Indians paid to retain certain "sovereign" rights
was to relinquish much of their land to the United States. The inherent rights
they did not relinquish are protected by U.S. law. Among those may be
hunting and fishing rights and access to religious sites.
How do I trace my Indian ancestry andbecome a member of a tribe?
The first step in tracing Indian ancestry is basic genealogical research if
you do not already have specific family information and documents that
identify tribal ties. Some information to obtain is: names of ancestors; dates of
birth, marriages and death; places where they lived; their brothers and
sisters, if any, and, most importantly, tribal affiliations. Among family docu-
ments to check are bibles, wills, and other such papers. The next step is to
determine whether any of your ancestors are on an official tribal roll or
census. For this there are several sources. Contact the National Archives and
Records Administration, Natural Resources Branch, Civil Archives Division,
8th and Pennsylvania Ave., NW, Washington, D.C. 20408. Or you may
contact the tribal enrollment officer of the tribe of which you think your
ancestors may be members. Another source is the Bureau of Indian Affairs,
Branch of Tribal Enrollment, 1849 C St. NW, Washington, D.C. 20240. The
key in determining your Indian ancestry is identification of a specific tribal
affiliation.
Becoming a member of a tribe is determined by the enrollment criteria of
the trite from which your Indian blood may be derived, and this varies with
each tribe. Generally, if your linkage to an identified tribal member is far
removed, you would not qualify for membership, but it is the tribe, not the
BIA, which makes that determination.
What does tribal sovereignty mean to Indians?
When Indian tribes first encountered Europeans, they were dealt with
from strength of numbers and were treated as sovereigns with whom treaties
were made. When tribes gave up lands to the U.S., they retained certain
sovereignty over the lands they kept. While such sovereignty is limited today,
it is nevertheless jealously guarded by the tribes against encroachments by
other sovereign entities such as states. Tribes enjoy a direct government-
to-government relationship with the U.S. government wherein no decisions
about their lands and people are made without their consent.
What does the term "federally recognized mean?
Indian tribes that have a legal relationship to the U.S. government
through treaties, Acts of Congress, executive orders, or other administrative
actions are "recognized" by the federal government as official entities and
receive services from federal agencies. Some tribes are state-recognized, but
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do not necessarily receive services from the state. Others have neither
federal or state recognition and may not seek such recognition. Any tribe or
group is eligible to seek federal recognition by a process administered by a
program of the Bureau of Indian Affairs or through direct petition to the U.S.
Congress. Only the Congress has the power to terminate a tribe from federal
recognition. In that case, a tribe no longer has its lands held in trust by the
U.S. nor does it receive services from the BIA.
Do all Indians live on retervationt?
No. Indians can and do live anywhere in the United States that they wish.
Many leave their home reservations for educational and employment pur-
poses. Over half of the total U.S. Indian and Alaska Native population now
lives away from reservations. Most return home often to participate in family
and tribal life and sometimes to retire.
Why are Indians sometimes referred to as Native Americans?
The term, "Native American," came into usage in the 1960s to denote the
groups served by the Bureau of Indian Affairs: American Indians and Alaska
Natives (Indians, Eskimos and Aleuts of Alaska). Later the term also included
Native Hawaiian* and Pacific Islanders in some federal programs. It, there-
fore, came into disfavor among some Indian groups.
The Eskimos and Aleuts in Alaska are two culturally distinct groups and
are sensitive about being included under the "Indian" designation. They
prefer, "Alaska Native/'
Does the BIAprovide scholarships for att Indians?
The Bureau provides some higher education scholarship assistance for
eligible members of federally-recognized tribes. For information, contact the
Indian Education Program, Bureau of Indian Affairs, 1849 C St. NW, Wash-
ington, D.C. 20240.
21
V-35
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Where to Find More Information
About Indians
The first and best local resource for finding information about Indians is
your library. Libraries have (1) reference books that include Indian informa-
tion, (2) books on Indian tribes, people, or on various aspects of Imlian life or
history, and (3) periodicals with articles about Indians. If your library is a
Federal Depository Library (there were some 1,400 in 1988), materials
published by federal agencies, including the Bureau of Indian Affairs, may
also be available in the reference collections. Librarians are professionals
trained to help you find materials or obtain them from other libraries on an
inter-library loan basis. You may also consider contacting one of the Indian
organizations listed on pages 35-36 of this booklet if you have questions
about areas of their expertise. The following are other major resources:
Library, U.S. Department of the Interior, 1849 C St., NW, Rm. 1041,
Washington, DC 20240 (202) 208-5815. The Interior Library has a large
collection of books on Indians available to the public or through inter-library
loan, as well as research periodicals for current information about Indians.
Indian Arts and Crafts Board, U.S. Department of the Interior, 1849 C St.
NW, Rm. 4004-MIB, Washington, DC 20240 (202) 208-3773. The Board
publishes information related to contemporary Native American arts and
crafts, including directories of Native American sources for these products,
available upon request.
Indian Health Service, U.S. Department of Health and Human Services,
Parklawn Building, 5600 Fishers Lane, RockvUle, MD 20857 (301)
443-1397. The IHS has information on Indian health matters, including
programs supported by the federal government, and statistics.
Bureau of the Census, U. S. Department of Commerce, Racial Statistics
Branch, Population Division, Washington, DC 20233 (301) 763-2607. The
Liaison with American Indians office provides 1990 Census information
including statistical profiles of the American Indian, Eskimo and Aleut popu-
lation for the United States.
National Archives and Records Service, U.S. General Services Admin-
istration, Civil Reference Branch, 7th St. and Pennsylvania Ave., NW,
Washington, DC. 20480 (202) 523-3238. The Archives assists scholarly
research into the history of the federal-Indian relationship and those con-
cerned with the legal aspects of Indian administration. Pertinent materials
are among the old records of the Department of War, the Bureau of Indian
Affairs, and the General Land Office. They Include papers related to Indian
treaty negotiations; annuity, per capita and other payment records; tribal
census rolls; records of Indian agents; and maps of Indian lands and reserva-
tions. You may inquire to use these records or obtain copies of specific
segments for a small fee.
23
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Smithsonian Institution, Public Affairs Office, Department of Anthropol-
ogy, National Museum of Natural History, 10th Street and Constitution Ave.,
NW, Washington, DC 20560 (202) 357-1592. The Handbook Office is
preparing a 20-volume series on the history, culture and contemporary
circumstances of North American Indians. The series, is entitled, Handbook
of North American Indians* of which nine volumns have thus far been
published.
Library of Congress, General Reading Room Division, 10 First St., SE,
Washington, DC 20540 (202) 707-5522. Reference librarians will help you
use the general or special collections of the Library of Congress. Its resources
are collections of over 84 million items — books, maps, music, photographs,
motion pictures, prints, manuscripts — some of which contain much material
for research on American Indians.
Newberry Library Center for the History of the American Indian, 60
West Walton St., Chicago, IL 60610 (312) 943-9090. One of America's
foremost research libraries, the Newberry makes its resources available to
academic and lay scholars. The library has more than 100,000 volumes on
American Indian history.
National Indian Law Library, Native American Rights Fund, 1522
Broadway, Boulder, CO 80302 (303) 447-8760. A clearinghouse for Indian
law-related materials, the Library contains 14,000 court proceedings in
every major Indian case since the 1950s and 4,000 non-court materials. It
has a government documents and tribal codes and constitutions collection. A
catalogue of holdings is available (S75) as well as two supplements (1985,
S10;1989, S30). Copies of materials under six pages are free. More than six
cost 15 cents per page.
The National Native American Cooperative, PO Box 1000, San Carlos,
Arizona, 85550-0301 (602) 230-3399, periodically publishes a directory
that includes a calendar of American Indian events and celebrations and
information on arts and crafts. Separate card sets are also available listing
this and other information. There is a fee for these publications.
PHOTOGRAPHS
The BIA does not have photographs of Indians available to the public.
The following sources provide copies for a fee.
National Anthropological Archives, Smithsonian Institution, Museum of
Natural History, Washington, DC 20560 (202) 357-1986, has a large collec-
tion of photographs dating back to the early 1800s. Inquiries should specify
names of individuals, tribe name, historical events, etc. Researchers with
broad or numerous interests should visit the NAA which has, in addition to
photographs, manuscripts, field notes, sound tapes, linguistic data, and other
documents including vocabularies of Indian and Inuit languages and
drawings.
Photo Lab, Museum of History and Technology, Smithsonian Institution,
14th and Constitution Ave., NW, Washington, DC 20560 (202) 357-1933,
prints photographs upon request after research has been completed at the
Smithsonian. You need to provide a negative number from source filer.
V-37
-------
Still Pictures Branch, National Archives and Records Service, Washing-
ton, DC 20408 (202) 501-5455, receives photographs from government
agencies, principally the BIA, grouped by subject. Make inquiry as specific as
possible, including names, dates, places, etc.
Library of Congress, Prints and Photographs Division, Washington, DC
20540 (202) 707-6394, has available an historic collection of prints and
photographs of American Indians. Go to the library to do your research (open
Monday-Friday, 8:30 a.m. to 5:00 p.m.). The Library responds to a limited
amount of mail.
National Museum of the American Indian, Smithsonian Institution, Pho-
tograph Department, 3735 Broadway, New York, NY 10032, (212)
283-2420, has a large collection of objects and photographs of Native
Americans. Much of the Museum's collection will be moved to Washington,
D.C., when the National Museum of the American Indian is built on the Mall
to house the the collections currently located in New York City.
AUDIO-VISUALS
Audio-visual materials are available from the following source:
Native American Public Broadcasting Consortium, PO Box 8311, Lin-
coln, !S"B 68501 (402) 472-3522, maintains the Nation's largest quality
library of Native American video programs for public television,
instructional and information use. Topics range from history, culture and
education to economic development and the arts. Programs are available for
rent or purchase. A free catalogue is available.
25
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Bibliography: North American Indians
(This bibliography was prepared with the assistance of Cesare Marino,
Smithsonian Institution, Washington, DC)
Bureau of Indian Affairs:
Commissioner of Indian Affairs, 1849-1967, Annual Reports to the
Secretary of the Interior, Washington, D.C. U.S. Government Printing
Office (Reprinted by AMS Press, New York, 1976-1977).
Kvasnicka, Robert M., and Herman J. Viola, eds. 1979, The
Commissioners of Indian Affairs, 1824-1977. Lincoln, Nebraska:
University of Nebraska Press.
Merlam, Lewis, et. al., 1928, The Problem of Indian Administration.
Report of a survey made at the request of the Honorable Hubert Work,
Secretary of the Interior, and submitted to him, February 21, 1927.
(Originally published by the U.S. Government Printing Office).
Baltimore, Maryland: John Hopkins University Press.
Taylor, Theodore W., 1984, The Bureau of Indian Affairs. Boulder,
Colorado: Westview Press.
Economic Development:
Lovett, Vincent, et al., 1984, American Indians (U.S. Indian Policy,
Tribe.; and Reservations, BIA: Past and Present, Economic Development)
Washington, D.C.: U.S. Government Printing Office.
Presidential Commission on Indian Reservation Economies, 1984. Report
and Recommendations to the President of the United States. Washington,
D.C.: U.S. Government Printing Office.
White, Robert H., 1991, Tribal Assets, The Rebirth of Native America,
1990. New York: Henry Holt & Co.
Education:
Fuchs, Estelle, and Robert J. Havighurs t, 1972, To Live on This Earth:
American Indian Education. Garden City, New York: Doubleday.
Indian Nations at Risk Task Force, 1991, Final Report to the Secretary
of Education. Washington, D.C.: U.S. Department of Education.
National Advisory Council on Indian Education, U.S. Department of
Education, Annual Reports, 1973- . Washington, D.C.: U.S. Government
Printing Office.
Prucha, Francis Paul, 1979, The Churches and the Indian Schools,
Lincoln, Nebraska: University of Nebraska Press.
Szasz, Margaret, 1975, Education and the American Indian: the Road to
Self-Determination, 1928-1973. Albuquerque, New Mexico: University oi
New Mexico Press.
27 V-39
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United States Congress, Senate Committee on Interior and Insular
Affairs, 1970, Comprehensive Indian Education Act. Hearings, 92nd
Congress, 2nd session, on S. 2724. Washington, D.C.: U.S. Government
Printing Office.
United States Congress, Senate Special Subcommittee on Indian
Education, 1969, Indian Education: A National Tragedy, A National
Challenge. 91st Congress, 1st Session. Senate Report No. 91-501.
Washington, D.C.: U.S. Government Printing Office.
Guides and Directories:
Fleming, Paula R., and Judith Luskey, 1986, The North American Indian
in Photographs from 1850 to 1920. New York:-Harper & Row.
Hill, Edward E., 1974, The Office of Indian Affairs, 1824-1880:
Historical Sketches, New York, Clearwater Publishing Company.
Hill, Edward E., comp., 1981, Guide to Records in the National Archives
of the United States Relating to American Indians. Washington, D.C.:
National Archives Trust Fund Board, U.S. General Services
Administration.
Hirschfelder, Arlene B., et al., 1983, Guide to Research on North
American Indians. Chicago: American Library Association.
National Archives Trust Fund Board, 1984, American Indians: A Select
Catalog of National Archives Microfilm Publications. Washington, D.C.:
National Archives Trust Fund Board, U.S. General Services
Administration.
Prucha, Francis Paul, 1990, Atlas of American Indian Affairs, Lincoln,
Nebraska: University of Nebraska Press.
U.S. Department of Commerce, 1974, Federal and State Indian
Reservations and Indian Trust Areas. Washington, D.C.: U.S.
Government Printing Office.
Waldman, Carl, 1985, Atlas of the North American Indians. Facts on File
Publications.
Health:
Don-is, Michael, 1989, The Broken Cord. New York: Harper & Row.
Nabokov, Peter, 1981, Indian Running. Santa Barbara, California: Capra
Press.
Trends in Indian Health, 1991. Rockville, Maryland: U.S. Department of
Health and Human Services, Indian Health Service.
Vogel, Virgil J., 1970, American Indian Medicine. Norman, Oklahoma:
University of Oklahoma Press. (Reprint, in paperback, 1973, New York:
Ballantine Books).
2R
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Indian Policies:
Abernethy, Thomas Perkins, 1959, Western Lands and the American
Revolution. New York: Russell and Russell.
American Indian Policy Review Commission, 1977, Final Report,
Submitted to Congress May 17, 1977. Washington, D.C.: U.S.
Government Printing Office.
Deloria, Vine Jr., and Clifford M. Lytle, 1984, The Nations WitI in: The
Past and Future of American Indian Sovereignty. New York: Panuieon
Books.
Johanson, Bruce, E., 1982, Forgotten Founders: Benjamin Franklin, The
Iroquois and the Rationale for the American Revolution. Ipswich,
Massachusetts: Gambit.
Kelly, Lawrence C, 1983, The Assault on Assimilation: John Collier and
the origins of Indian Policy Reform. Albuquerque, New Mexico:
University of New Mexico Press.
Philp. Kenneth R., 1977, John Collier's Crusade for Indian Reform:
1920-1954. Tucson: University of Arizona Press.
Prucha. Francis P., 1984, The Great Father: The United States and the
American Indians. 2 vols. Lincoln, Nebraska: University of Nebraska
Press. -• -
Prucha. Francis P.. 1990, Documents of Unites States Indian Policy.
(2nd edition, expanded). Lincoln/London: University of Nebraska Press.
Schaaf. Gregory, 1990, Wampum Belts and Peace Trees, George Morgan,
Native Americans and Revolutionary Diplomacy. Golden, Colorado:
Fulcrum Publishing.
Taylor. Theodore W., 1972, The States and Their Indian Citizens,
Washington, D.C.: U.S. Department of the Interior, Bureau of Indian
Affairs.
Taylor, Theodore, 1983, American Indian Policy. Mt. Airy, Maryland:
Lomond Publications, Inc.
Tyler, S. Lyman, 1973, A History of Indian Policy. Washington, D.C.:
U.S. Department of the Interior, Bureau of Indian Affairs.
Washburn, Wilcomb E., 1973, The American Indian and the U.S., A
Documentary History. 4 vols. New York: Random House.
Indian-White Relations:
1982, Indian-White Relations in the United States: A Bibliography of
Works Published, 1975-1980. Lincoln, Nebraska: University of
Nebraska Press.
V-41
29
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Berkhofer, Robert F., Jr., 1978, The White Man's Indian: Images of the
American Indian from Columbus to the Present. New York: Alfred A
Knopf.
Deloria, Vine, Jr., 1974, Behind the Trail of Broken Treaties, New
York: Dell Publishing Company.
Hagan, William T., 1979, American Indians (Revised edition). Chicago:
The University of Chicago Press.
Haynie, Nancy A., comp., 1984, Native Americans and the Military,
Today and Yesterday. Fort McPherson, Georgia: U.S. Army Forces
Command Information Branch.
Josephy, Alvin M., Jr., 1973, The Indian Heritage of America. New
York: Alfred A. Knopf.
Matthiessen, Peter, 1983, In the Spirit of Crazy Horse. New York:
Viking Press.
Prucha, Francis P., 1971, Indian Peace Medals in American History
(State Historical Society of Wisconsin, Madison). Lincoln, Nebraska:
University of Nebraska Press.
Prucha. Francis P., 1977, A Bibliographical Guide to the History of
Indian-White Relations in the United States. Chicago: University of
Chicago Press.
Rosenstiel, Annette, 1983, Red and White: Indian Views of the White
Man. 1492-1982. New York: Universe Books.
Stedman. Raymond W., 1982, Shadows of the Indian: Stereotypes in
American Culture. Norman, Oklahoma: University of Oklahoma Press.
Utley. Robert M., and Wilcomb E. Washburn, 1977, The American
Heritage History of the Indian Wars. New York: American Heritage
Publishing Company.
Washburn, Wilcomb E., 1974, The Indian in America (The New
American Nation Series). New York: Harper & Row.
Viola, Herman J., 1990, After Columbus, The Smithsonian Chronicle of
the North American Indians. Washington, D.C.: Smithsonian Books.
Washburn, Wilcomb E., 1987, History of Indian-White Relations.
Handbook of North American Indians, Vol. 4, William C. Sturtevant, gen.
ed. Washington, D.C.: Smithsonian Institution.
Land:
Kickingbird, Kirke, and Karen Ducheneaux, 1973, One Hundred Million
Acres (The social, historical and legal significance of Indian land
problems). New York: Macmillan Company.
O'Donnell, Janet, 1991, The Dispossession of the American Indian,
1887-1934. Bloomington: University of Indiana Press.
-------
Ross, Norman A., comp., 1973, Index to Expert Testimony Before the
Indian Claims Commission: The Written Reports (The Library of
American Indian Affairs). New York: Clearwater Publishing Company.
Sutton, Imre, 1975, Indian Land Tenure, Bibliographical Essays and a
Guide to the Literature. New York: Clearwater Publishing Company.
Sutton, Imre, 1985, Irredeemable America: The Indians" Estate and
Land Claims. Albuquerque: University of New Mexico Press.
United States Indian Claims Commission, 1980, Final Report, I1. ^9. 96th
Congress, 2nd Session, House Document No. 96-383. (Serial No. *3354).
Washington, D.C.: U.S. Government Printing Office.
Languages:
Campbell, Lyle, and Marianne Mithun, eds., 1979, The Languages of
Native America: Historical and Comparative Assessment. Austin, Texas:
University of Texas Press.
Indian Law:
Brakel. Samuel J., 1978, American Indian Tribal Courts: The Costs of
Separate Justice. Chicago: American Bar Foundation.
Cohen. Felix S.. 1942. Handbook of Federal Indian Law. Albuquerque:
University of New Mexico Press. (Reprinted: The Michie Company, Law
Publishers, Charlottsville, Virginia, 19~82).
Deloria. Vme. Jr.. and Clifford M. Lytle, 1983, American Indians,
American Justice. Austin, Texas: University of Texas Press.
Peaxar. Stephen. 1983, The Rights of Indians and Tribes (ACLU
Handbook!. New York: Bantam Books.
Native American Rights Fund, 1985, Indian Cases: The 1984-1985
Supreme Court Term. The NARF Legal Review, Spring. Boulder,
Colorado.
U.S. Commission on Civil Rights, 1980, American Indian Civil Rights
Handbook. 2nd ed.. Clearinghouse Publications, No. 35. Washington,
D.C.: U.S. Government Printing Office.
1981, Indian Tribes: A Continuing Quest for Survival. Washington, D.C.:
U.S. Government Printing Office.
Profiles and Biography:
Dockstader, Frederick J., 1977, Great North American Indians: Profiles
in Life and Leadership. New York: Van Nostrand Reinhold Company.
Eastman, Charles A. (Ohiyesa), 1918, Indian Heroes and Great
Chieftains (Reprint. 1991. Lincoln, Nebraska: Bison Books, University of
Nebraska Press).
Neithammer. Carolyn, 1977, Daughters of the Earth: The Lives and
Legends of American Indian Women. New York: Macmillan.
31
V-43
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Religion:
Deloria, Vine, Jr., 1973, God is Red. New York: Grosset & Dunlap.
Huyltkranz, Ake, 1987, Native Religions of North America. New York:
Harper & Row.
Hurdy, John M., 1970, American Indian Religions. Los Angeles:
Sherbourne Press.
Native American Rights Fund, 1979, We Also Have a Religion: The
American Indian Religious Freedom Act and the Religious Freedom
Project of the Native American Rights Fund. Announcements (Winter)
5(1). Boulder, Colorado.
United States Federal Agencies Task Force, 1979, American Indian
Religious Freedom Act Report (P.L. 95-341). Chairman, Cecil D. Andrus,
Secretary of the Interior, Washington. D.C.
Peterson, Scott, 1990, Native American Prophecies; Examining the
History, Wisdom and Startling Predictions of Visionary Native
Americans. New York: Paragon House.
Treaties:
Kappler, Charles J., corap., 1904-1941, Indian Affairs: Laws and
Treaties. 5 vols. Washington, D.C.: U.S. Government Printing Office
(Reprinted: AMS Press, New York, 1971).
Tribal Government:
Lopach, James J., Brown, Margery Hunter, and Clow, Richmond L.,
1990, Tribal Government Today, Politics on Montana Indian
Reservations. San Francisco, Boulder, London: Westview Press.
O'Brien, Sharon, 1989, American Indian Tribal Governments. Norman,
Oklahoma: University of Oklahoma Press.
Taylor, Graham D., 1980, The New Deal and American Indian
Tribalism. Lincoln, Nebraska: University of Nebraska Press.
Tribes:
Hodge, Frederick W., ed., 1907-1910, Handbook of American Indians
North of Mexico. 2 vols. Bureau of American Ethnology Bulletin 30
(Reprinted 1971. New York: Rowman and Littlefield).
Sturtevant, William C., gen. ed., 1978, Handbook of North American
Indians. 20 vols. Washington, D.C.: Smithsonian Institution. 1978 vol. 8,
California; 1978 Vol. 15, Northeast; 1979 Vol. 9, Southwest (Pueblos);
1981 Vol 6, Subarctic; 1983 Vol. 10, Southwest (Navajo, Apache, etc.);
1984 Vol. 5, Arctic; 1986 Vol. 11, Great Basin; 1989 Vol. 4, History of
Indian-White Relations; 1990 Vol. 7, Northwest Coast; (1992 Vol. 13,
Plains).
32
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VI
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REGIONAL EPA CONTACTS
Region 9 Address:
75 Hawthorne Street
San Francisco, CA 94105
OFFICE OF THE REGIONAL ADMINISTRATOR
Felicia Marcus, Regional Administrator
John Wise, Deputy Regional Administrator*
Chair, Indian Program Steering Committee
OFFICE OF EXTERNAL AFFAIRS
Deanna Wieman*, Director
EPA Region 9 Indian Program Team
Steve Pardieck*, Senior Indian Program Officer
Roccena Lawatch*
Regional Indian Program Coordinator, contact for the following Arizona
tribes: Navajo, Hopi, San Juan South Paiute, Gila River, Ak-Chin,
Tohono O'Odham, Pascua Yaqui, Yavapai Prescott, Yavapai Apache,
and Tonto Apache.
Stephen Etsitty (415) 744-1593
Contact for the following Arizona Tribes: White Mountain Apache, San
Carlos, Fort McDowell, Salt River, Kaibab, Havasupai, Ft. Mojave,
Chemhuevi, Colorado River, and Cocopah.
Vijaya Duwuri (415) 744-1603
Contact for California Tribes
(415) 744-1001
(415) 744-1001
(415) 744-1566
(415) 744-1607
(415) 744-1602
Clarice Olson,
Contact for Nevada Tribes
(415) 744-1606
Christiane Camp (415) 744-1490
Lead Region Coordinator, Region 9 Indian Program Committee Coordi-
nator
Bill Clarke (415) 744-1595
Senior Environmental Employee (SEE) focusing on providing general
EPA information to California Tribes.
OFFICE OF REGIONAL COUNSEL
Gail Cooper*, Deputy Regional Counsel
Greg Lind*, Regional Indian Law Attorney
. OFFICE OF POLICY AND MANAGEMENT
Mike Schulz*, Chief, Contracts & Planning Branch
(415)744-1364
(415)744-1376
(415)744-1623
vi-i
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Pam Overman*, Grants Specialist
Dave Taylor*, Quality Assurance/Laboratory
IV. OFFICE OF FEDERAL ACTIVITIES
Jeanne Geselbracht, NEPA
V. OFFICE OF CRIMINAL ENFORCEMENT
David Wilma, Special Agent-in-charge
VL AIR AND TOXICS DIVISION
Carl Kohnert*. Deputy Director
Doug McDaniel*. Air Quality
Bob Kaneshiro, Pesticides-Navajo
Karen Salkind, Pesticides-ITCA
Allen Demorest, Pesticides-Gila River
Louise Hill, Radon
Don Lanier, Lead/PCBS
Pat Maravilla, Asbestos
Vn.HAZARDOUS WASTE MANAGEMENT DIVISION
Keith Takata, Deputy Director Superfund
Don White*, Chief, Superfund Planning/Response
Bob Mandel, CERCLA-Emergency Response
Barbara Joy, SARA Title HI
Carolyn Douglas, CERCLA/SARA Navajo-Gila
Greg Czajkowski, RCRA-Hazardous Waste
April Katsura, RCRA-Hazardous Waste Grants
Rebecca Jamison*, RCRA-Solid Waste
Matt Small, RCRA-Underground Storage Tanks
Mary Keil, RCRA-UST/Navajo
Bill Wilson, Pollution Prevention
WATER MANAGEMENT DIVISION
Cat Kuhlman*, Chief, Permits and Compliance Branch
Bill Thurston, Drinking Water Protection Branch
Su Cox*, Public Water Supply-Northern CA
Harold Rush, Public Water Supply - Southern CA
Jill Korte, Public Water Supply - AZ
Will Pack, Public Water Supply - NV
(415)744-1707
(415)744-1497
(415)744-1576
(415)744-2485
(415)744-1219
(415)744-1246
(415)744-1099
(415)744-1100
(415)744-1096
(415)744-1046
(415)744-1123
(415)744-1122
(415)744-2355
(415)744-2353
(415)744-2290
(415)744-2342
(415)744-2343
(415)744-2107
(415)744-2030
(415)744-2098
(415)744.2078
(415)744-2080
(415)744-2010
(415)744-2001
(415)744-1817
(415)744-1855
(415)744-1850
(415)744-1853
(415)744-1849
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Danny Collier, Public Water Supply - Navajo
George Robin, Groundwater Protection
Cynthia Sans, Underground Injection
Loretta Vanegas, Construction Grants
Terry Oda, NPDES Permits
Jeremy Johnstone, NPDES Compliance
Stephanie Wilson, Wetlands
Laurne Fondahl, Pretreatment/Sludge
Wendell Smith*, Water Quality (§106, §314, §319)
James Romero, Water Quality 401 Certification
Ed Liu, Water Quality Monitoring
* member of Region 9 Indian Program Committee
(415)744-1856
(415)744-1819
(415)744-1837
(415)744-1946
(415)744-1923
(415)744-1895
(415)744-1968
(415)744-1909
(415)744-2018
(415)744-1967
(415)744-1934
VI-3
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REGIONAL TRIBAL CONTACTS
NATIONAL TRIBAL OPERATIONS COMMITTEE -
REGION 9 TRIBAL REPRESENTATIVES
ARIZONA
Gila River Indian Community
Cecil Antone, Lt Governor
P.O. Box 97
Sacaton, AZ 8S247
Navajo Nation EPA
Lorenda Joe, Acting Director
P.O. Box 339
Window Rock. AZ 86515
CALIFORNIA
Morongo Band of Mission Indians
Jim Retcher, Planner
11581 PotreroRoad
Banning, CA 92220
NEVADA
Nevada Indian Environmental Coalition
Tom Burton, Executive Director
1280 Terminal Way #22
Reno.NV 89502
(A) - Alternate Representative
Hualapai Nation
Louise Benson, Vice-Chair (A)
P.O. Box 179
Peach Springs, AZ 86434
CampoEPA
Mike Connolly, Director (A)
1779 Campo Truck Trail
Campo, CA 91906
REGION 9 REGIONAL TRIBAL OPERATION COMMITTEE
TRIBAL REPRESENTATIVES*
ARIZONA
Ft. McDowell Indian Community
Stephanie Ostrom, Envir.Manager
P.O. Box 17588
Fountain Hills, AZ 85269
Hualapai Nation
Clay Bravo, Natural Resources
P.O. Box 300
Peach Springs, AZ 86434
Hopi Tribe
Nat Nutongla, Water Resources
P.O. Box 123
Kykotsmovi, AZ 86039
VI-4
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NORTHERN CALIFORNIA
Hoopa Valley Business Council
Hilton Hostler, Jr., Councilman
P.O. Box 1348
Hoopa, CA 95546
CENTRAL CALIFORNIA
Fort Independence Council
Richard Wilder, Chairman
P.O. BOX 67
Independence, CA 93526
SOUTHERN CALIFORNIA
Cahuilla General Council
Michele Salgado, Chairperson
P.O. Box 391760
Anza,CA 92539
NEVADA
Duck Valley Shoshone-Paiute
Bill Beck, Envir. Specialist
P.O. Box 219
Owyhee,NV 89832
Yurok Tribe
Sid Nix, Councilman
517 Third St. Suite 18
Eureka, CA 95501
Torres Martinez Business Cmte
Mary E. Belardo, Chairperson
66-725 Martinez Road
Thermal, CA 92274
Walker River Paiute Tribe
Sam Stegeman, Water Resources
P.O. Box 220
Schurz,NV 89427
* National TOC Members also sit on the Regional TOC
VI-5
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AMERICAN INDIAN ENVIRONMENTAL OFFICE
EPA PROGRAM OFFICE STAFF LIAISONS
Voice - (202) 260-7939
Fax - (202) 260-7509
PROGRAM OFFICE
Office of Air and
Radiation
Office of Water
Office of Prevention,
Pesticide and Toxic
Substances
Office Solid Waste
and Emergency Response
Office of Enforcement
& Compliance Assurance
Office of General
Counsel
Office of Environmental
Justice
LEAD CONTACT/BACKUP TELEPHONE
Tom Wall
Kathleen Simpson
Caren Rothstein
Marlene Regelski
Richard Longmire
Marlene Regelski
Marlene Regelski
Tom Wall
Caren Rothstein
Elizabeth Bell
Elizabeth Bell
Additional Person
Elizabeth Bell
Marlene Regelski
Administration of Regional Clara Mickles
SEE Program, Data/Reporting,
National and Headquarters
Indian Workgroups
General Assistance Program Ray Hall
(GAP)
** (202) 260-1489
260-8202
260-9872
260-7284
(703) 305-6005
260-7284
260-7284
260-1489
260-9872
260-8106
260-8106
260-7958
260-8106
260-7284
260-7519
260-9304
** - All phone numbers are area code (202) unless otherwise noted.
VI-6
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Bureau of Indian Affairs
Field Offices Nevada and Arizona
Arizona
Colorado River Agency
Rt. 1 Box 9-C
Parker, AZ 85344
(520) 669-7111
Fort Yuma Agency
P.O. Box 1591
Yuma, AZ 85364
(619) 572-0248
Tohono O'Odham Agency
P.O. BOX 578
Sells, AZ 85634
(520) 383-3286
Salt River Agency
10000 E. McDowell Rd.
Scottsdale, AZ 85256
(602) 640-2168
Traxton Canon Agency
P.O. Box 37
Valentine, AZ 86437
(520) 769-2286
Nevada
Eastern Nevada Agency
155 Shoshone Circle
Elko, NV 89801
(702) 738-0569
Fort Apache Agency
P.O. Box 560
Whiteriver, AZ 85941
(520) 338-5353
Hopi Agency
P.O. Box 158
Keams Canoyn, AZ 86034
(520) 738-2228
Pina Agency
P.O. Box 8
Sacaton, AZ 85247
(520) 562-3326
San Carlos Agency
P.O. Box 209
San Carlos, AZ 85550
(520) 475-2321
San Carlos Irrigation
Project
P.O. Box 250
Coolidge, AZ 85228
(520) 723-5439
Western Nevada Agency
1677 Hot Springs Rd.
Carson City, NV 89706
(702) 887-3500
Bureau of Indian Affairs
Phoenix Area Office
P.O. Box 10
Phoenix, AZ 85001-0010
(602) 37S-6600
Navajo Area Office
P.O. Box 1060
Gallup, NM 87305-1060
(505) 863-8200
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BUREAU OF INDIAN AFFAIRS
FIELD OFFICES
CENTRAL CALIFORNIA AGENCY
1824 Tribute Road, Suite J HAROLD BRAFFORD
Sacramento, Ca. 95814 Superintendent
(916) 978-4337
NORTHERN CALIFORNIA AGENCY
1900 Churn Creek Road Dr. VIRGIL AKINS
P.O. Box 494879 Superintendent
Redding, Ca. 96049-4879
(916) 246-5141
PALM SPRINGS FIELD STATION
555 South Palm Canyon Drive TERRY BECKWITH
P.O. Box 2245 Superintendent
Palm Springs, Ca. 92263
(619) 322-3086
SOUTHERN CALIFORNIA AGENCY
3600 Lime Street, Suite 722 VIRGIL TOWNSEND
Riverside, CA. 92501 Superintendent
(714) 351-6624
KLAMATH FIELD OFFICE
241 Salmon Avenue NORMON McLEMORE
P.O. Box 789 Field Representative
Klamath, Ca. 95548
(707) 482-6421
BUREAU OF INDIAN AFFAIRS
SACRAMENTO AREA OFFICE
2800 Cottage Way (Federal Office Building)
Sacramento, Ca. 95825
RONALD JAEGER
Area Director
(916) 978-4691 (Main Info.)
978-4703 (Don Knapp)
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National Indian Organizations
American Indian Graduate Center
4520 Montgomery Blvd., N. E.,
Suite IB
Albuquerque, NM 87109
(505) 881-4584
Adminstration for Native American
Hubert H. Humphrey Bldg. Room 344-F
200 Independence Avenue
Washington, D.C. 20201
(202) 690-7776
Inter-Tribal Agricultural Council
100 N. 27th St. Suuite 500
Billings, MT. 59101
(406) 259-3525
American Indian Science and
Engineering Society
1630 30th St. Suite 301
Boulder, CO 80301
(303) 939-0023
Council of Energy Resource Tribes
1999 Broadway, #2650
Denver, Colorado 80202
(303) 297-2378
Inter-Tribal Timber Council
4370 N.E. Halsey St.
Portland, Oregon 97213
(503) 282-4296
National Indian Gaming Association
904 Pennsylvania Av. SE
Washington, D.C. 20003
(202) 546-7711
National Congress of American
Indians
900 Pennsylvania Ave. SE
Washington, D.C. 20201
(202) 466-7767
Native American Rights Fund
1506 Broadway
Boulder, CO 80302-6296
(303) 447-8760
National Center for American Indi;
Enterprise Development
953 East Juanita
Mesa, AZ 85204
(602) 5445-1298
National Tribal Environmental
Council
1225 Rio Grande N.W.
Albuqerque, NM 87104
(505)242-2175
National Indian Justice Center
McNear Building #7
4th St., Suite 46
Petaluma, CA 94952
(707) 762-8113
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Regional Indian Organizations
American Indian Resources Institute
319 MacArthur Blvd.
Oakland, CA 94610
(510) 834-9333
California Indians for Cultural &
Environmental Protection
Star Route, Mesa Grande
Santa Ysabel, CA 92070
California Indian Legal Services
819 North Barlow Lane
Bishop, CA 93514
(619) 873-3581
California Indian Legal Services
120 W. Grand Av., #204
Escondido, CA 92025
(619) 746-8941
California Indian Legal Services
510-16th St., #310
Oakland, CA 94612-1500
(510) 835-0284
Inter-Tribal Council of Arizona
4205 N. 7th Ave, #200
Phoenix, AZ 85013
(602) 248-0070
Inter-Tribal Council of Nevada
P.O. Box 7440
Sparks, NV 89510
(702) 355-0600
Inter-Tribal Sinkyone wilderness
Council
190 Ford Rd., #333
Ukiah, CA 94582
InterTribal Council of California
835 Klein Way Way
Sacramento, CA 95831-4717
(916) 973-9851
Native American Water Association
P.O. Box 511
Minden, NV 89432
(702) 782-6636
National Indian Justice Center
McNear Building #7
4th St., Suite 46
Petaluma, CA 94952
(707) 762-8113
Nevada Indian Environmental Coaliti
1280 Terminal Way #22
Reno, NV 89502
(702) 323-6432
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