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This document is designed solely to inform EPA
personnel about EPA's Indian Program and its
implementation. It is not intended to substitute for the
requirements contained in EPA statutes or regulations.
EPA may update this document as appropriate.
-------
CONTENTS
CHAPTER ONE: UNDERSTANDING NATIVE AMERICANS 1
I. WHY LEARN ABOUT NATIVE AMERICANS? 1
H. DISCUSSING "NATIVE AMERICANS" 2
A. Native Hawai'ians 2
ffl. THE DEMOGRAPHIC LANDSCAPE 3
A. Native American Populations Are Increasing 3
B. The Geographic Distribution of Native American Communities 3
1. Tribal Areas 4
C. Social and Economic Conditions 5
IV. CULTURAL AND HISTORICAL SNAPSHOTS 6
A. Beginnings 6
B. Families 7
C. Land and Its Resources 7
D. Language 8
E. Education 9
F. Traditional Story Telling 10
G. Traditions 11
H. Worship 11
I. Discrimination 12
V. TRIBAL COMMUNITIES 13
A. Native Americans as Tribal Members 13
B. Reservations 14
1. The Special Circumstances of Alaska and Oklahoma 16
C. Governments 17
1. Unique Aspects of Tribal Governance 18
2. Intergovernmental Relations 20
VI. SELECTED NATIONAL/REGIONAL INDIAN ORGANIZATIONS 20
CHAPTER TWO: FEDERAL INDIAN LAW 25
I. INTRODUCTION 25
A. What Is Federal Indian Law? 25
B. Definition of Tribe, Indian, and Indian Country 25
n. HISTORY OF FEDERAL INDIAN LAW 28
A. Pre-contact 28
B. European Colonization 28
C. Foundation of Federal Indian Law and Policy (1789-1871) 29
1. The Marshall Trilogy: The Bedrock of Federal Indian Law 29
2. Removal 32
3. Treaties 32
D. Attempted Assimilation (1871-1928) 33
1. Allotment 34
2. Case Law at the Turn of the Century 34
E. Reorganization (1928-1942) 35
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F. Termination (1943-1968) 35
1. Public Law 83-280 36
G. Self-determination (1968-present) 37
m. TRIBAL SOVEREIGNTY AND JURISDICTION 39
A. The Source and Scope of Tribal Powers 39
1. Limitations 39
2, Tribal Powers 40
B. Tribal Jurisdiction 41
1. Criminal Jurisdiction 42
2. Civil Jurisdiction 42
3. Indian Country Jurisdiction 43
4. Other Jurisdiction 45
IV. THE FEDERAL-INDIAN RELATIONSHIP 47
A. Federal Powers 47
B. Federal Trust Responsibility 47
V. DISTINCTIVE TRIBAL RIGHTS 48
A. Treaties 49
I. Canons of Treaty Construction 49
2. Continued Validity and Significance of Treaties 50
B. LandRights 50
C. Fishing, Hunting, and Gathering Rights 50
D. Water Quantity Rights 51
CHAPTER THREE: EPA's APPROACH TO ENVIRONMENTAL PROTECTION IN INDIAN
COUNTRY 53
1. INTRODUCTION 53
A. The Importance of the Indian Program 53
B. Objectives of the Indian Program 54
C. How To Accomplish Objectives 54
H. FEDERAL AND EPA POLICIES 55
A. Executive Order on Consultation and Coordination with Indian Tribal
Governments 55
B. Presidential Memorandum on Government-to Government Relations
With Native American Tribal Governments 56
C. EPA Indian Policy 56
D. Other Policies and Guidance 57
1. Executive Order and Memorandum on Environmental Justice .. 57
2. Executive Order on Sacred Sites 58
3. Federal, Tribal, and State Roles in the Protection and Regulation of
Reservation Environments (Concept Paper) 58
4. Tribal Operations Action Memorandum 58
5. EPA Environmental Justice Strategy 59
6. EPA Regional Policies for Environmental Protection in Indian
Country 59
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7. Memorandum of Understanding Between the Bureau of Indian
Affairs, the Environmental Protection Agency, the Department of
Housing and Urban Development, and the Indian Health
Service 60
8. Enforcement 60
9. Protocol for EPA Interactions With Tribes 60
ffl. PROGRAM IMPLEMENTATION 61
A. Building Capability 62
1. Financial Assistance 62
2. Technical Assistance 63
3. Information 64
B. Tribal Assumption of Federal Environmental Programs 65
1. Congressional Authorization for Approval of Tribal Programs
Under Environmental Statutes 66
2. Tribal-Specific Eligibility Criteria 67
3. Tribal Jurisdiction 68
C. Direct Federal Implementation 70
D. Cooperative Approaches to Implementation 72
IV. ORGANIZATION OFEPA'S INDIAN PROGRAM 73
A. The American Indian Environmental Office 73
B. Regional Programs and Operations 74
C. Tribal Operations Committee 74
D. Agency Senior Indian Program Managers 74
E. National Indian Work Group 74
F. National Indian Law Work Group 75
G. American Indian Advisory Council 75
H. National Environmental Justice Advisory Council Indigenous Peoples
Subcommittee 75
I. Other EPA Advisory Council With Tribal Representation 75
V. TRIBAL OPERATIONS IN OTHER SELECTED FEDERAL DEPARTMENTS
AND AGENCIES 76
A. White House Domestic Policy Council 76
B. White House Council on Environmental Quality 76
C. Department of the Interior 76
D. Department of Justice 76
E. Department of Health and Human Services 77
F. Department of Defense 77
G. Department of Agriculture 78
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CHAPTER ONE: UNDERSTANDING NATIVE
AMERICANS
I. WHY LEARN ABOUT NATIVE AMERICANS?
There are two basic reasons for acquiring an understanding of Native American communities. The first
reason is that the President of the United States has directed all federal agencies to do so to promote
EPA's and the federal government's Indian policy: "The head of each executive department and agency
shall be responsible for ensuring that the department or agency operates within a govemment-to-
government relationship with federally-recognized tribal governments."1 The second reason for doing so
is that all EPA Administrators since 1984 have directed EPA employees to do this through
implementation of EPA's Indian Policy: "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 in making decisions and managing environmental programs affecting reservation lands."2
A less authoritative reason for getting to know something about Native American communities—but a no
less important reason—is that, by knowing these communities, EPA will learn how to work with them in
the best ways possible. A great deal can be learned through this resource guide and in EPA's training
classes. However, EPA employees should realize that their learning will be enhanced if, as individuals,
the employees actually get to know Native American people at a personal level and at a community level.
The landscape and the natural resources are important to become familiar with, but there is more to
knowing these communities than that. To the extent possible, EPA employees should learn as much as
possible about cultural values, beliefs and practices, community history, culture, government, economies,
and other infrastructure and community systems. Cultural awareness and sensitivity is required to work
with such an interestingly diverse, but collectively unique, society of Americans. Native American
people are industrious and have a raw determination to maintain their ways of life. They also are
courteous, hospitable, and willing to share. One can expect vigorous and enthusiastic support for
environmental management development.3
1 Presidential Memorandum for the Heads of Executive Departments and Agencies (April 29, 1994).
2 U.S. Environmental Protection Agency, EPA Policy for the Administration of Environmental Programs on
Indian Reservations (November 8, 1984). (Reaffirmed by Administrator Browner, Memorandum EPA Indian
Policy (March 14, 1994)).
3 Veronica E. Velarde Tiller, Ph.D. (Jicarilla Apache), Tiller's Guide to Indian Country: Economic Profiles
of American Indian Reservations, iv (1996).
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Resource Guide
II. DISCUSSING "NATIVE AMERICANS"
"Native American" is a general term used in this resource document. The term is used in a very broad
sense to describe an ethnically distinct group of American citizens.4 They are distinct from other
Americans in that, as an ethnic group, Native Americans are considered indigenous to North America.
They are not, as a group, descendants of the European or other immigrants who began colonizing this
continent in the 16th century. The term as used here, includes "American Indians," "Indians," "Alaska
Natives," "Eskimos," and "Aleuts." Sometimes the term "Indian" or "American Indian" is used
expansively to also include "Alaska Native", "Eskimos", and "Aleuts". Although these terms can be
used in an ethnologically descriptive sense, they also have legal and political meaning. An "Indian" also
is described as a person with some amount of Indian blood who is recognized as such by the person's
tribe or community.5
An "Indian tribe," as used in this resource document, is generally a community of Indians who are
ethnologically similar, but who as a community, also exist in a legal-political sense. Historically, the
federal government has determined that it will recognize particular groups of Indians as political entities,
or "Indian tribes," pursuant to its authority under the Indian Commerce Clause of the United States
Constitution.6 However, keep in mind that not all tribes are federally-recognized. This subject is
discussed in Chapter 2: Federal Indian Law.
A. Native Hawai'ians
"Native Hawai'ian" people can also be described as Native American because they are indigenous to
their areas and they are not descendants of the European colonizers. For purposes of this resource
document, Native Hawai'ians are not included as Native Americans. The Native Hawai'ian community
has a different relationship with the U.S. Government. As a group, they are not recognized as a legal,
political entity or "government." Nevertheless, Native Hawai'ians are described as a discrete group in
the Native American Programs Act of 1974 (NAPA). They number in the 150,000 range and they have
maintained a distinct cultural identity. NAPA has helped them to receive federal funds to support
education, health, and civil rights initiatives. The Native Hawai'ians are attempting to restore land bases
and establish formal recognition of a federal trust responsibility and government-to-government relations.
4 Tim Giago (Dakota), publisher of the Rapid City, South Dakota-based Indian Country Today, an important
Indian advocacy newspaper, states the paper's policy, as published December 4,1991 in the "Notes from Indian
Country" editorial: "We use 'American Indian,' 'Indian,' or 'Native American,' but we prefer to use the individual
tribal affiliation when possible."
5 American Indian Lawyer Training Program, Inc., Indian Tribes As Sovereign Governments, a Sourcebook
On Federal-Tribal History, Law, and Policy, 34 (1988).
6 Id. at 34. Other countries are recognized as "nations," separate and apart from the "nation" of the U.S.A.
Under the U.S. Constitution, "States" are considered political entities and under State constitutions, counties and
cities are considered political entities.
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Resource Guide Page 3
III. THE DEMOGRAPHIC LANDSCAPE
A. Native American Populations Are Increasing
Rather than facing extinction, as many believe, the Native American population is growing. When
European explorers arrived in North America in the late 15th century, there were at least a million people
already on the continent. Some estimates range as high as 15 million or more. By 1890,400 years later,
the Native American population had been reduced to less than half a million, decimated by European
diseases and warfare. Today their numbers have grown again. The 1990 census figures showed that 1.9
million people in the United States considered themselves to be American Indian, Inuit (Eskimo), or
Aleut. This is about 0.8 percent of the total U.S. population.7 Many Native Americans believe that the
1990 census grossly undercounted Native Americans. The U.S. Census Bureau acknowledges an
undercount of 4.6 percent. More notably, however, the Bureau acknowledges an underestimate of the
numbers living in tribal areas by 12.2 percent.8
B. The Geographic Distribution of Native American Communities
Native American people and their tribes are very different from one another, which makes it difficult to
refer to them as one "Indian community." In reality they are many communities scattered geographically
throughout the United States and most particularly in the western states. Native American people live in
every state in the union, in small towns, villages, big cities, on reservations, and off reservations. Four
states (all in the West) have Indian populations of 100,000 or more: Oklahoma, California, Arizona, and
New Mexico. The six States where Native Americans make up 5 percent or more of the total population
are Alaska, New Mexico, Oklahoma, South Dakota, Montana, and Arizona.9
Some of the most rapid population increases have taken place in Michigan, Texas, Florida, and Colorado.
In addition, New England states (especially Maine) showed a major increase in the Indian population
during the 1970s. There is probably no single explanation for this but there has been a move toward
greater awareness of, and pride in, ethnicity in the last two decades and there are tribes that have received
federal recognition in recent years.I0
7 James B. Reed and Judy A. Zelio, States and Tribes, Building New Traditions, National Conference of
State Legislatures, (NCSL), 2 (November 1995).
8 U.S. Department of Housing and Urban Development, Office of Policy Development and Research,
Assessment of American Indian Housing Needs and Programs: Final Report, Thomas G. Kingsley, et. al, 8 (May
1996) (Also, see discussion of "tribal areas" later in this Chapter).
9 Id. at 2.
10 Mai 2.
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Resource Guide
1. Tribal Areas
For purposes of this resource guide, "tribal area" is a generic term adapted from concepts used by the
U.S. Census Bureau to discuss where Native Americans live. It includes American Indian reservations,
Alaska Native Villages, and other special types of areas that represent ongoing centers of tribal culture.
Some of these special areas are state-recognized American Indian reservations, California rancherias,
tribal-jurisdictional statistical areas, and tribal-designated statistical areas.11 An assessment of the
population and other trends in these areas reveal some interesting observations:
• The bulk of the Native American population is not gradually shifting away from
reservations to metropolitan areas. The indication is that cultural ties to tribal areas
remain strong. For example, urban case studies indicate that many Native Americans
living in urban areas retain ties to their tribes and hope to move back when they retire.
Also, 71 percent of the Native Americans who live outside of reservation areas but in the
same county indicated that they would prefer to move back.
• Of the nearly 2 million Native Americans counted in the 1 990 census, 37 percent lived in
tribal areas and 23 percent lived in the surrounding counties. Another 31 percent were
residents of metropolitan areas in the rest of the country and 9 percent lived in other
nonmetropolitan areas.
• About 47 percent of the Native American population is located in areas that are remote,
small, and poor with little access to employment and other opportunities.
• About 53 percent of the Native American population is located in areas that are near
urban metropolitan areas, and have at least as many Indians as non-Indians living within
tribal area boundaries.12
There are two interesting implications of this information for environmental management purposes.
First, Native Americans are not leaving their homelands and, in fact, there is a likelihood that these
communities will develop to accommodate their increasing numbers. Second, many Native American
communities perceive that they have been and are being encroached upon by the larger non-Native
American populations. Environmental management will be needed more than ever before to minimize
environmental impacts as populations grow. Also, Native American environmental management systems
will need to be innovative and creative in accommodating the needs of their Native American and non-
Native American populations.
1' Kingsley, supra, note 8, 28-32.
12 Id. at xiv-xvi.
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Resource Guide Paae 5
C. Social and Economic Conditions
Native Americans are considerably younger, on the average, than the general population. In 1990,
approximately 34 percent of the population was children and teenagers. The contrasting figure for the
general population was 25 percent. Only about 8 percent was elderly, compared to 15 percent for the
general population.
Native Americans tend to have larger families than the average. About 80 percent still live in extended-
family households. Many of these households are headed by women with children. The numbers are
above average. Education trends lag in Native American populations. Thirty-four percent of those over
25 never graduated from high school. Only 9 percent reported having graduated from college.
The unemployment rate is seriously high—14 percent nationally, 20 percent in tribal areas and 10
percent in urban areas. The highest rate is in the Plains area at 29 percent and the lowest rate is in
Oklahoma and the Eastern regions. The average for all Americans is 6 percent.
The 1989 rate for Native Americans living below the poverty level was 34 percent, almost twice the rate
for non-Indians. Poverty rates were highest in tribal areas at 36 percent and somewhat lower in
metropolitan areas, non-metropolitan areas, and surrounding counties (17 to 23 percent).13
Finally, health statistics for Native Americans indicate their mortality rates are significantly higher than
for the average population in the areas of alcoholism, tuberculosis, accidents, diabetes, flu and
pneumonia, suicide, and homicide.14
Given the statistics provided above, Native Americans, particularly the leadership, shoulder tremendous
responsibilities for achieving community well-being in addition to environmental well-being. There are
many who believe incorrectly that widespread poverty in Native American communities has been
mitigated by gaming activities, and there are increased pressures on Native American communities to
assume a greater share of the cost of programs and services to tribal members. States covet gaming
revenues and seek a piece of the pie. A 1993 study indicated that Indian gaming has proven successful in
only a few areas. In many areas, locations are too remote from urban centers to be profitable. In 1997,
67 percent of over 550 federally-recognized tribes had no gaming operation. Of the tribes that did have
gaming, 10 of them earned 56 percent of the gaming income. The majority of the gaming tribes earn
modest incomes from their endeavors and are spending it on such things as housing and education for
tribal members to alleviate the deep and persistent poverty that characterizes many Native American
communities.15
13 Id. at 44-51.
14 U.S. Department of Health and Human Services, Indian Health Service, Office of Planning, Evaluation,
and Legislation, Division of Program Statistics, 1997 Trends in Indian Health, 5.
Kingsley, supra, note 8, at 51-52. Also, Tax Policy, A Profile of the Indian Gaming Industry, Report to the
Chairman, Committee on Ways and Means, House of Representatives, U.S. General Accounting Office, 5-7 (1997).
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Resource Guide PaaeB
IV. CULTURAL AND HISTORICAL SNAPSHOTS
It is impossible to describe everything there is to know about Native American history and culture.
Native communities are numerous and diverse as well as culturally rich and unique. However, it is
possible to capture a small fraction of insight into the inner mechanisms of these societies where certain
life ways have worked for many generations. Certain aspects of their lifestyles have helped Native
Americans survive despite tremendous odds against them. These were such things as family and kinship,
special relationships to land and other species, language, education, storytelling, traditions, customs, and
religious practices. Some knowledge of these lifestyles can be helpful in understanding how to act on or
accept tribally-unique ideas, customs, and practices. "Stereotyping" is also discussed to help understand
how it is that this phenomenon is considered to be discriminatory.16
A. Beginnings
Where did they come from? The indigenous people of the Arctic and Subarctic? The people of the Great
Plains, Northwest Coast, the Plateau, Great Basin, West Coast, and the Southwest? What about the
people in the Prairies, Northeast, and the Southeast?
Anthropologists say that the people who populated what is now called the Americas came from Asia by
sailing or walking across the Bering Strait several thousand years ago, considerably before the Norsemen
"discovered" "Vineland" and long before Columbus encountered the western hemisphere lands.
According to tribal traditions, the Zuni Pueblo people say that the "Sunfather," hearing the cries from the
children deep within the womb of Mother Earth, struck two columns of foam at the base of a waterfall
and created twin gods. Sunfather told the twins to go into Mother Earth and bring the children up to the
light. They did it and that was the beginning. The Tewa and Hopi Pueblo people describe similar
beginnings. In the Encyclopedia of North American Indians, both origin accounts are provided.17
This difference in origin stories raises an important sensitivity. The relationship between Native
American communities and anthropologists has been somewhat uneasy for a variety of reasons. One
reason is that in the past, anthropologists often appeared to disrespect tribal culture and took possession
of many cultural objects. This represents a serious loss to Native American communities. Also, Native
American people consider themselves to be the experts on their own culture. So, there is also an issue of
"their story" and "our story." In more recent years, the anthropological community has made efforts to
repatriate cultural materials, and many tribal communities have begun to value some of the work done by
16 ArJene Hirschfelder, editor. Native Heritage, Personal Accounts by American Indians 1790 to the Present,
xix-xxii(1995).
17 JoAllyn Archambault (Standing Rock Sioux), Edmund J. Ladd, John A. K. Willis, Encyclopedia of North
American Indians, Frederick E. Hoxie, editor, 23,445-49 (1996). Note that there are many origin stories among the
many different Tribal cultures.
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Resource Guide Paoe 7
previous generations of anthropologists. Some tribes are using the work to revive their spiritual and
cultural lives. The tensions nevertheless continue to exist because of the significant loss of material
culture.18
B. Families
It used to be that when a family saw visitors approaching, the family would
automatically get up and begin cooking a full meal for the visitors. The visitors
were then expected to sit and eat; if the family did not cook a meal then the
visitor would be offended. Also, if the visitors refused to eat, the family who
cooked the meal would be offended. Nowadays, a family will just ask the
visitors, "Have you eaten yet?" If the visitors have eaten, the family would not
cook. If the visitors hadn't eaten, the family would cook. Some traditions have
changed to suit modern times.l9
"With us the family was everything." Tom Johnson, an elder from the Pomo Tribe of Northern
California, told a sociologist in 1940 that a man without a family would be poorer than a worm. For
Native American people, this has always been true. The traditional family is large. Many Native people
were and still are bom into clans that relate them to many people, not just their immediate or nuclear
family consisting of mother, father, and siblings. Families include grandparents, aunts who are like
mothers, uncles who are like fathers, cousins who are like brothers and sisters, and married and adopted
relatives who are like blood. Membership in a clan relates one to many people in close ways even though
the biological connections barely exist. Clan members do not necessarily reside in the same place, but
clan bonds were and are strong, obligating members to assist one another. Even distant clan members are
considered relatives in times of crisis and ceremony, on both happy and sad occasions.20
C. Land and Its Resources
The native peoples of the Columbia River Basin have always revered the way the Creator
took special care of nature and the way nature obeyed the Creator. This was a perfect
mystery. For that reason, Columbia River tribes found it easy to embrace the concept of
stewardship. For them, stewardship extends respect for life beyond the dignity of the
human person to the whole of creation. That respect involves responsibility to honor
what the Creator provides. As long as nature is taken care of, nature will take care of the
people. The tribes continue to acknowledge this traditional wisdom.
18 Archambault, supra note 11, at 23,445-49.
19 Ed Edmo (Shoshone-Bannock), "Finding the Best of Two Worlds; Teaching Children about Prejudices,"
Lakota Times (December 26, 1989).
20 Hirschfelder, supra note 16, at 3.
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Resource Guide Page 8
The tribes developed 'gravel-to-gravel' management principles from this traditional
wisdom. 'Gravel-to-gravel' management acknowledges the relationship between the
biology of the fish, the degree of human pressures on them, and the condition of their
physical environment throughout all life history stages. It is an ecologically sound
approach that is at the same time sacred and regulatory.
In non-Indian parlance, traditional wisdom is systems thinking. It is a discipline for
seeing wholes, recognizing patterns and interrelationships, and learning how to structure
human actions accordingly.21
According to many tribal accounts, Native American people feel they are related not only to family, but
to homelands. Tribal views of land ownership tend to be "use" oriented. That is, people may use certain
lands and resources, but they are not owned by human beings. To many Native Americans, land also is
sacred. Many traditional accounts relate why certain sites are particularly sacred: a location may be the
place where the creation of a specific tribe took place, or the place where an important revelation
occurred, or a place through which one enters the next life. Many tribal people feel that sacred land
contains plants, herbs, and waters possessing healing powers, and at certain sites people communicate
with the spirit world through prayers and offerings. Native people acknowledge that they live on and use
sacred land, but they feel they are obligated to perform ceremonial or ritual duties in order to honor the
land and all it provides. Many Native American Indian people recognize a natural contract between
themselves and other animals and fish, birds, and plants. Use of these resources usually requires
honoring and thanksgiving. It is important to understand that many Native Americans have these views
that are very different from mainstream world views and that what happens to land and resources matters
a great deal to Native Americans.22
D. Language
There are many Indian words which when translated into English, lose their force, and
do not convey so much meaning in one sentence as the original does in one word. It
would require an almost infinitude of English words to describe a thunder storm, and
after all you would have but a feeble idea of it. In the Ojibway language, we say "Be-
Wah-som-moog." In this we convey a continued glare of lightning, noise, confusion—
an awful whirl of clouds, and much more.23
21 Columbia River Inter-Tribal Fish Commission, A Tribal Tradition of Sound Fisheries Management, Wy-
Kan-Ush-Mi Wa-Kish-Wit, Spirit of the Salmon: The Columbia River Anadromous Fish Restoration Plan of the
Nez Pence, UmatiHa, Warm Springs and Yakama Tribes, Volume I, 2-4 (1995).
22 Hirschfelder, supra note 16, at 27.
23 Kah-Ge-Ga-Gah-Bowh, or George Copway (Ojibway), Indian Life and Indian History by an Indian
Author - Embracing the Traditions of the North American Indians Regarding Themselves Particularly of that Most
Important of all the tribes - The Ojibways. (1858).
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Resource Guide
Native Americans do not speak "Indian." Estimates vary as to the total number of American Indian
languages in North America north of Mexico at the time of first contact, but it is generally held that there
were between 500 and 600 mutually unintelligible languages belonging to more than 10 language
families. Some of the languages that still exist are related. For example, the languages spoken by
Navajos and Apaches are Athabascan languages. They often can understand one another. However,
Tlingits in Alaska who speak an Athabascan language cannot understand Navajos or Apaches. Some of
the languages are completely different. For example, Hopis in Arizona cannot understand any of the
Siouan languages just like Spanish speakers cannot understand Tibetan. Traditionally, native languages
were passed orally from generation to generation. The systems are complex and have precise grammars
and vocabularies with thousands of words. Some of the languages were written down by missionaries
and others. But mostly, Native Americans were forbidden to speak their languages, particularly in the
various compulsory boarding schools that were set up to educate Indians in the late 1800s and early
1900s. Nevertheless, many languages are still spoken. To the extent they can, tribes are putting
resources into reviving languages. Speaking one's language is held in high esteem by Native Americans.
It is one of the most important ways that Native Americans express their identity and ensure the life of
their unique cultures. For some tribes, traditional knowledge can only be fully understood in the
language because there is not an easy way to translate it into English. Sometimes, religion cannot be
practiced without the language. Oratory is still a great tradition among Native Americans.24
E. Education
We Inupiat believe that a child starts becoming a person at a young age, even
while he or she is still a baby. When a baby displays characteristics of
individual behavior, such as a calm demeanor or a tendency to temper tantrums,
we say 'He or she is becoming a person.' In our culture, such characteristics are
recognized and accommodated from early childhood. As each child shows a
proclivity toward a certain activity, it is quickly acknowledged and nurtured. As
these children and adults in the community interact, bonds are established that
help determine the teacher and the activities which will be made available to that
particular child. As education progresses, excellence is pursued naturally.25
Traditionally, Native Americans were educated by their families, especially by grandparents, elders, and
religious and social groups whose job it was to teach world views, values, attitudes, beliefs, rules, roles,
and skills. Children were exposed to kinship roles, life cycle rituals, religious ceremonial events,
storytelling, and hands-on instruction. Tribal educators taught history, what would now be called earth
or physical sciences, physical education, codes of social behavior, religious training, health care, and
many other subjects. All of this changed over time. Boarding schools with non-Indian teachers became
widespread. Boarding schools had a major influence on Native American life. Today, children go to off-
24
Hirschfelder, supra note 16, at 61.
25 Okakok, Leona (Inupiat), "Serving the Purpose of Education." Harvard Educational Review, 59, no. 4,
405-422 (November 1989).
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reservation public and private schools. Tribal community education continues in many respects, and
children are still taught much of what used to be taught.26
F. Traditional Story Telling
Every evening we would ask Dad and Uncle to tell Coyote stories, but they would refuse.
... Because telling Coyote stories could cause the weather to change drastically
When the temperature hit forty degrees below zero, they decided it couldn't get any
colder. "Forty below," they said... "That's it." Coyote stories tonight.
Coyote is an outrageous character that all Indian tribes of the West told stories about
He had no scruples, none at all. He would tell his kids, "Look at that!" and while their
heads were turned, he would steal food from their plates. He lied and swindled and took
advantage of everyone
Sometimes the stories were hilarious. Sometimes he got his just desserts. Like the time
he believed the sun's job was easy and he got the sun to trade places for a day. As
Coyote (now the sun) moved across the sky high above the earth, he looked down and
saw all kinds of goings-on. He knew everyone's secrets and, being the sort of person he
was, he was not about to keep his mouth shut. He ridiculed them and laughed at them
and told all their secrets. But he did himself in because he saw himself and revealed his
own embarrassing secrets and the next day he had to take his own place again and live
with being the butt of everyone's jokes for a very long time.27
Histories, cultural traditions, and laws have been passed on by storytelling. The stories explain how the
people first came into being, how the sun, moon, stars, rainbows, sunsets, sky, thunder, lakes, mountains,
and other natural occurrences came about. Tribal stories explain the origin of landmarks, plants, and
animals. Some stories tell about greed, selfishness, or boastfulness. The stories often give practical
advice such as how to hunt or fish and some include recipes for ways to heal, or describe how to find the
right root or herb. They teach laws and the consequences for violating them. Some stories are so sacred
and powerful that they are treated with special respect: creation stories are often recited in a ritual way
and told in a serious manner. Stories are often told only at special times of the year such as in the winter.
They've been passed on for hundreds of years and possibly much longer.28
26 Hirschfelder, supra note 16, at 91.
27 Janet Campbell Hall (Couer d'Alene), Bloodlines: Odyssey of a Native Daughter (1993).
28
Hirschfelder, supra note 16, at 133.
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G. Traditions
Every white man seemed to have a great concern about time. We had our own names for
the seasons and for the months that made up the year, but they were not the same as
those the white man used. And we did not know how he counted time, by minutes and
hours and days of the week, or why he divided the day into such small parts. And we
found that there were two ways of counting it, for the Quakers spoke of First-day,
Second-day... while others spoke of Sunday and Monday and Tuesday.... It was a
long time before we knew what the figures on the face of a clock meant, or why people
looked at them before they ate their meals or started off to church. We had to learn that
clocks had something to do with the hours and minutes that white people mentioned so
often. They were such small divisions of time that we had never thought of them. When
the sun rose, when it was high in the sky, and when it set were all the divisions of the day
that we had ever found necessary when we followed the old Arapaho road. When we
went on a hunting trip or to a sun dance, we counted time by sleeps.
White people who did not try so hard to understand the ways of Cheyenne and the
Arapaho as we did to understand their ways, thought we were all lazy. That was because
we took a different attitude toward time from theirs. We enjoyed time; they measured it.
.. we were not an idle nation of people. If we had been idlers, we would have been
wiped out by our enemies or by bad weather and starvation long ago.... No people who
get their living from Mother Earth as she provides for them, and who fight off other
tribes wanting to hunt and graze their horses over the same land, can be lazy.29
Among the several hundred separate native cultures, there is a pluralism of world views and life ways,
probably unimaginable to those who still believe there are generic Indians belonging to generic tribes
living in a generic place and time. The preconception of the generic Indian has overshadowed the reality
of the social and political organizations, clothing styles, shelters and art forms, musical traditions,
economic systems, languages, education, spiritual and philosophical beliefs, and adaptive mechanisms of
countless native peoples.30
H. Worship
By today's standards the task of weaving a basket must seem silly to some,
compared to deep space exploration or the transmittal of data concerning the
origin of the universe. After all, a basket consists of woven sticks, plaited
together into containers. Some of us put our dirty clothes into a basket, but for
the most part, basketry has fallen into disuse if not obsolescence. It seems the
time has passed when basketry was marveled at for its utility and perfected
9 Carl Sweezy (Arapaho, bom around 1881), The Arapaho Way: A Memoir of an Indian Boyhood, (ed.
Althea Bass), (1966).
30 Hirschfelder, supra note 16, at 161.
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design. In northwestern California, however, a uniquely shaped, non-utilitarian
basket is still essential to three local Indian tribes for conducting their
ceremonies to "fix the world." Without the baskets the Hupa, Karuk, and Yurok
would not be able to perform the highly important Jump Dance without solving
extremely difficult spiritual problems and taking drastic measures Within
our traditional culture and psyche, the baskets are like jewels.31
There are many, many religious traditions that have endured among Native Americans despite a long
history of suppression by early missionaries and the federal government. These traditions are as
dignified, profound, and richly faceted as those of other faiths practiced throughout the world. Many
tribes perform ceremonies according to instructions given in sacred stories. Some of the most important
ceremonies need to be conducted at certain places at specific times of the year. Some ceremonies mark
important life-cycle events in a person's life and take place at important times such as solstices and
equinoxes. There are ceremonies to heal the sick, renew relationships with spiritual beings, initiate
people into religious societies, ensure success in hunting and growing crops, pray for rain, and to give
thanks for harvests of food. Some ceremonies must be performed in order to ensure survival of the Earth
and all forms of life. Today, as in the past, Native people also worship by dancing, singing, chanting,
and sometimes simply by engaging in reverent actions such as drinking water, burning sweet grass,
pinching pieces of food before a meal and putting the pieces in a "spirit bowl," taking a sweat bath, or
fasting.32
I. Discrimination
Let it be heard here we are not people of a romantic past or irrelevant present. We intend
to live until the end of time. Indians are different people; different, not wrong; different,
not opposing; different, not inferior; different, not anomalous. We are not culturally
deprived, disadvantaged, or underachievers. We do not take this in an ideological
vacuum Tribalism is no hindrance to us but support. We have a basic confidence
about our affairs that has been developed over thousands of years. It takes imagination
and cohesion to survive the way we did for the past hundred years or so.33
Another perspective:
Images of noble savages, warriors, braves, and Indian princesses are non-Indians'
perceptions of what is Indian, created by authors and writers, and encouraged by the
white establishment. These manufactured images are used to sell everything from butter
31 Julian Lang (Karuk). "The Basket and World Renewal," Parabola: The Magazine of Myth and Tradition,
16, no 3,83-85 (August 1991).
32 Hirschfelder, supra note 16, at 201.
33 U.S. Congress. Senate Special Subcommittee On Indian Education, William Penseno (Ponca), Testimony
before the Senate Special Subcommittee on Indian Education, Indian Education, pan 1,91st Cong., 1st Sess.
(1969).
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to cars, and are powerful in their impact on non-Indian people. But this is not the
American Indians' perception of themselves.34
Unauthentic, unrealistic, and offensive images of Indians in films, outdated textbooks, and other forms of
communication are presented everyday. In spite of efforts to correct stereotypes, the distorted imagery
and information about native cultures still exists. Stereotypes and misinformation deny the dignity and
dynamism of native cultural practices and the distinctiveness of Native Americans' many traditions.35
V. TRIBAL COMMUNITIES
A. Native Americans as Tribal Members
Native Americans as individuals are citizens of the United States, citizens of the State they reside in, and
they may also be citizens or "members" of their tribes. As federal citizens, a tribal member is not exempt
from paying federal income taxes unless there is a special exemption by treaty or other law.35 As a State
citizen, a tribal member must generally pay State taxes if he or she resides or works within a State's
jurisdiction unless exempted by treaty or other law.37
Membership in a tribe is determined by tribal law. Each tribe has its own law and methods of
determining membership but typically membership eligibility is based upon a certain percentage of blood
quantum and/or descendancy. Some tribes have additional criteria, such as requiring matrilineal or
patrilineal descendancy.
Individual Native Americans who are enrolled members of federally-recognized tribes may be entitled to
certain rights and benefits under tribal law or federal laws based partly in treaties, executive orders, and
federal legislation because of their status as members.38 An example of a benefit extended to members is
the opportunity to receive Indian preference in hiring by a government or the Bureau of Indian Affairs.
Providing the preference is considered a means for increasing and improving Native American
34 Charlene Teters (Spokane), Artist and mother in a statement from her 1994 art exhibition, "What We
know About Indians." Recounted in Hirschfelder, supra note 16, at 252.
35 Hirschfelder, supra note 16, at 237.
36 Squire v. Capoeman, 351 U.S. 1 (1956); U.S. v. Anderson, 625 F.2d 910,913, cert, denied. 450 U.S. 920
(1980).
37 Reed, supra note 7, at 47.
38 Reed, supra noiel, at 3.
Also, AILTP, supra note 5, at 34.
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participation in the administration of affairs affecting tribal life.39 This preference is not based on race,
but on a tribal members' unique status with the federal government.
B. Reservations
Reservations were first created by 17* century English colonizers and imposed on tribal communities to
remove them from the path of European settlement. The United States took up the practice using military
might and other means and created hundreds of reservations that were established by treaty, executive
order, or congressional decree. Although these are grim origins, tribal communities have adapted to
reservation environments to the extent that many now consider these areas their homelands.40 An
important concept to keep in mind with respect to reservations is the reserved rights doctrine. Tribal
rights, including rights to land and to self-government, generally were not granted to a tribe by the United
States. Rather, under the doctrine, tribes retained ("reserved") such rights as part of their status as prior
and continuing sovereign governments.41
Before Europeans arrived, Indians occupied all of what became the United States. They practiced self-
governance and lived according to their own customs and practices. The English immigrants who began
to arrive on the continent in the 17* century lacked the strength to dislodge or subjugate the more
powerful Indian nations. As a consequence, the newcomers established borders between themselves and
the Indians. They clearly delineated what was "Indian country" and what was British territory. In each
area, the respective communities maintained their own laws, customs, and institutions. Later, several
imported diseases, military technology and other factors shifted the balance of power in favor of the
immigrants. As the immigrants pushed inland, they confined the remnant native groups onto small
reservations and settlements.42
The practice was continued after the founding of the United States. Treaties established borders between
"Indian country" and the new nation. The borders were frequently moved forcing many communities
west of the Mississippi. Although these communities were offered new homelands and permanent
borders in what became states like Iowa, Missouri, Arkansas, and Oklahoma, the lands were nevertheless
opened and more extensive removal took place to the "Indian Territory." Later, many tribes in the west
were also removed there especially after deadly military campaigns. Western reservations were
established as a result of a continuous pattern of white expansion, military intervention, and then
removal.43
39 AILTP, supra note 5, at 25.
40 Frederick E. Hoxie, editor, "James Riding In" (Pawnee), Encyclopedia of the North American Indians,
546-549, (19%).
41 AILTP, supra note 5, at 6.
42 Hoxie, supra note 40, at 546-549.
43 Id. at 546-549.
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Reservation life was extremely restricted by new federal overseers known as the Bureau of Indian
Affairs. Movement off the reservation was disallowed, religious practices and movements were quashed
and children were often required to go to distant boarding schools to leam how to be like non-Indians.
Federal criminal justice systems were established with the intent to supplant traditional dispute resolution
processes and the administration of justice. Missionaries were encouraged to operate on reservations
with funding support from the government.44
In the last decades of the 19th century, the government began dividing up reservation lands into individual
homesteads through various laws such as the General Allotment Act and the Curtis Act. Many
communities lost a great deal of their lands. After allotments to Indian families were completed, the
remaining land was considered surplus and sold or given to non-Indians. Because many Indians were
poor, many of them sold the allotments they owned. Many became landless. Reservation land holdings
shrank from 138 million acres in 1887 to 48 million acres in 1934. Allotment seriously undermined the
tribal governing authority often referred to as "sovereignty." The federal government began dealing with
individuals rather than governments, which allowed outsiders to assume control over many functions
provided by traditional leaders. Many Indians were encouraged to move away from their tribes to
isolated allotments. Many areas around traditional communities became mixed environments plagued by
discrimination and antagonism. Facing bleak futures, many Indians began migrating to other areas in
search of work and other opportunities.45
Tribes began to formally reassert their authority over their lands and members in earnest after Congress
passed the Indian Reorganization Act (IRA) in 1934. The law discontinued the allotment policy,
encouraged the formation of governments based on a BIA model, and provided funds for economic
development. Lands lost during the Allotment Era were allowed to be re-purchased. IRA did not do
much to resolve serious problems such as poverty, deprivation, poor housing and poor health.46
New efforts to eliminate Indian tribes began in the 1950s. There were particularly intense efforts to
"terminate" the federal-tribal relationship through federal law. Many non-Indians believed that Indian
people needed to be free from federal protection, and needed to assimilate into the mainstream society.
Some non-Indians seemed to want some of the valuable properties held in trust by the federal government
for the tribes' use. The termination policies and laws extended state criminal and civil law to some areas
of Indian country. Tribal people lost the power to police their own communities. Particularly affected
were communities and reservations in Minnesota, Nebraska, California, Oregon, and Wisconsin.
Termination was disastrous. It disenfranchised many Native Americans who under termination law were
no longer "Indians" for purposes of health, education, and other federally-funded programs available to
provide assistance to Indians. Again, millions more acres of land were lost.47
44 Id.
45 Id.
46 Id.
47 Id.
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Today, Indian lands, whether called reservations, rancherias, communities, pueblos, villages etc.,
constitute less than 2 percent of their original area. These lands vary widely in size and demographic
composition. In 1990, the federal government recognized 278 Indian land areas as reservations. The
Navajo Reservation consists of some 16 million acres in Arizona, New Mexico, and Utah. Some land
bases contain less than a hundred acres. About 50 percent of all Native Americans lived on or near
reservations in 1990. About half of the land on contemporary reservations belongs to tribes. Significant
portions are owned and inhabited by non-Indians. The Indian-owned land is usually held "in trust" by
the federal government, meaning that the property is exempt from state and county taxes and can be sold
only in accordance with federal regulations.48
1. The Special Circumstances of Alaska and Oklahoma
Alaska: Native Americans indigenous to Alaska include Indians, Eskimos and Aleuts. Most still live in
small villages throughout the State. In 1741 Russians made contact with these communities. In 1867, the
Russian claim to lands in Alaska was sold to the United States. Alaska became a State in 1959. Only a
few reservations were ever established in Alaska. The only remaining one is the Annette Island Reserve
in the southern panhandle. Instead, there are over 200 village corporations and 13 regional for-profit
corporations. This system was established in 1971 by the Alaska Native Claims Settlement Act. The
village corporations own land around the villages that are held for the benefit of the village Native
people. Regional corporations also own land. Within villages, there are also traditional village councils,
some formed pursuant to the Indian Reorganization Act. The village corporations and the village
councils may both function as official representatives of the village (no corporations are recognized as
governments by BIA). Many villages are also municipalities under Alaska State law. Because village
governments are still federally-recognized as tribes by the United States, the village community may be
eligible to receive Indian Health or Bureau of Indian Affairs services. In addition, there are also 12 non-
profit organizations that are the descendants of the largely tribal groups formed to press for land rights in
the 1960s, and which were also the ancestors of the regional corporations.49
Oklahoma: All of the land west of the Appalachians was called "Indian Territory" at one time or
another. The admission of the states to the Union shrank the area until it approximated present-day
Oklahoma, which it became in 1907.50 The Indian Territory was set aside for the relocation of Indians,
particularly those from east of the Mississippi River. Removals were effected by numerous treaties and
congressional acts from 1830's to 1870's. Generally, the eastern part of the territory was assigned to the
Cherokee, Chickasaw, Choctaw, Creek, and Seminole tribes (theTive Civilized Tribes"). Small parcels
in the extreme northeast were set aside later for other tribes. The western part of the territory became
known as "Oklahoma Territory." Here, many other tribes were relocated and were also subject to the
General Allotment Act.
48 Id.
49 Tiller, supra note 3,3-4.
50 Felix Cohen, Handbook of Federal Indian Law 772-74 (1982 ed.).
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From 1830 until later in that century, all lands set aside by the United States to the various tribes were set
aside for member use in common. In the late 1800s, United States policy shifted toward dismantling
governments and much of the land was conveyed to individual Indians. These individual conveyances
proceeded in three basic ways. The lands of the Five Civilized Tribes were conveyed to individuals with
alienation restrictions. Osage lands were conveyed to individuals with the mineral rights reserved to the
Osage Tribe for the members. The other conveyances went to the United States in trust for individual
allottees. Most Indian land was not allotted to Indians and instead, was made available to the general
public.
The result today is that there are many types of land ownership associated with Oklahoma tribes. Tribal
trust land is held by the United States with the beneficial interest owned by the tribe. Individual trust
lands are also held by the United States, but individuals are the beneficiaries. There are assignable lands
owned by the United States, controlled by the Department of the Interior, and assigned, for use, to a
specific tribe. Restricted land can be tribally-owned or individually-owned and be allotted. In the case
of the Five Civilized Tribes, restricted land must remain in possession of an heir with a certain blood
quantum in order to maintain restricted status. Finally, there are fee lands that are privately owned by
Indians and non-Indians that are not restricted.51
C. Governments
Many Native Americans are enrolled members of tribes. Tribes have governments that take many
different forms. Tribal governments exist off reservations as well as on reservations. In fact there are
more than 30 tribal governments in Oklahoma but considerably fewer "reservations." Some tribes such
as the Shoshone and the Arapaho in Wyoming share a reservation but have separate tribal governments.
There are also "confederations" of tribes who govern together on one reservation.52
There are also tribal communities that have governments, but are not federally-recognized tribes. That is,
they do not have a "govemment-to-government" relationship with the federal government. When federal
recognition exists, the result is a trust responsibility flowing from the federal government, to the tribe as
a beneficiary. Some of the tribal communities have never been federally-recognized, and some had
recognition but were terminated. There are administrative procedures for gaining federal recognition.
Congress can also establish this status, which it has done on many occasions.53 A number of states such
as Virginia have recognized tribes that reside within the boundaries of the state. This recognition does
not convey any legal rights under federal Indian law. The state recognition often carries with it some
rights such as the right to exclusively occupy and use certain lands and provide some level of local
governance. Although these tribal communities may not be eligible for federal assistance based on tribal
status, they may be eligible for various programs as minority communities.
51 David Hunt, Indian Land Titles II: Beyond the Five Civilized Tribes, 1-4, Presented to the Oklahoma City
Real Property Lawyers Association (April 11, 1997).
52 Reed, supra note 7 al 3.
53 AILTP, supra note 6, at 26.
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Tribal governments are complex systems and vary from tribe to tribe. Tribes possess all of the powers of
governance of sovereign nations except those withdrawn by treaty or by congress.54 The Supreme Court
has said that tribes are "unique aggregations possessing attributes of sovereignty over both their members
and their territory."55 Like other governments, tribes make and enforce laws and adjudicate cases, though
not necessarily through separate branches of government. They often offer an array of service programs
for tribal members and administer a variety of agencies, including environmental departments. They
manage police forces, school systems, and housing programs. Some limitations placed on tribal
governance which are discussed in Chapter Two.
1. Unique Aspects of Tribal Governance
Tribal governments operate under very stressful circumstances. They have a special responsibility to
their citizens. The tribe has to relate to the reservation economy both as a government and as a
participant because it is typically also a major landowner and business owner within its own jurisdiction.
The tribal governments generally do not preside over healthy economies, which limits their revenue
sources. As landowners, they have often turned to development leases, tribally-owned enterprises and
joint ventures. The tribal government constituency is predominantly poor and often expects tribal
enterprises to favor job creation over profit which complicates tribal participation in business. Tribes
experience constant anxiety that economic success will be used as an excuse to terminate the federal
recognition of tribal government powers as it was in the Termination Era. There is increasing concern
that the complex non-Indian economy may destroy Indian culture and create a rationale for non-tribal
political incursions.56
The tribal government constituency has unique characteristics as well. Unlike state citizenship, which is
generally co-extensive with residency, tribal citizenship often is not. Once an individual is admitted, he
or she normally does not lose citizenship. Depending on the tribe, it is possible for an individual to
become a member and never be on the reservation at all. Nonresidents can often vote on important tribal
matters, even when they have never lived on the reservation. Therefore, nonresident tribal members can
sometimes greatly influence policies concerning the local tribal community. Other tribal government
constituents include nonmembers and nonvoting Indians whom the government may not be able to
govern fully. These constituents can affect public attitudes toward tribal government and tribal rights.
State and sometimes municipal governments also represent the tribes' constituents. These governments
may also extend services to the reservation community. These circumstances often result in bitter
intergovernmental conflict over who owns the revenues that can be generated and who can control or
regulate particular interests.57
54 United States v. Wheeler, 435 U.S. 313,323 (1978).
55 United States v. Mazurie, 419 U.S. 544,557 (1975).
«jt _
Commission on State-Tribal Relations, American Indian Law Center, Inc., Handbook on State-Tribal
Relations. 30(1984).
57 Id at 33.
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Thirty-six percent of tribal residents live in poverty. Most governments balance their responsibilities to
the poor against their responsibilities to other economic groups. With their endemic economic
imbalance, tribal governments have a different kind of balancing problem and because of the lack of
economic diversity, they also have fewer tools to work with and options to choose from.58
The federal-tribal relationship creates other problems for tribal governments. Unlike the federal-state
structure, there are fewer well-defined limitations on authority and fewer concrete dispute resolution
principles and processes in the federal-tribal relationship. The tribal governments are subject to a
continuous shifting of balance between federal control and tribal self-determination (e.g., assimilation,
reorganization, self-determination, policy shifts). Political views often change as administrations change
and have been unevenly applied over time.59
Tribal governments have a unique relationship to tribal culture. Non-Indian governments are developed
philosophically and structurally from the majority society. Many tribal government structures are also
based on majority society's norms. Tribal governments often get criticized both because they are too
influenced by non-Indian ideas of government, and for having systems that are too Indian (for example,
some tribes do not distinguish between church and state). At the same time, however, because of historic
suppression, tribes have not developed "traditional" or tribal cultural models of government to meet
modem challenges. Many governance traditions have been lost and educational advancement has been
stifled. Will tribal governments develop the appropriate models that will work for them in this time and
under modem circumstances? That is a major question for tribal governments.
Tribal governments are also required to be protectors of Indian culture by their members. Indian culture
is perceived to be threatened constantly. Therefore, tribal governments tend to believe that every major
policy decision and every significant direction change can lead to irreversible damage. Tribal culture is
precariously positioned because it has no ties to another place or society that can renew it. Tribal culture
did not stem from Europe, Africa, or Asia. Renewal can only come from within the tribal heartland.
This special relationship of tribal government to culture dominates every facet of tribal action. It
inculcates a certain caution and conservatism.60
2. Intergovernmental Relations
Somehow, the federal government and state governments must find ways to accommodate tribal
community issues. Whether strengthening tribal-federal or tribal-state relations will threaten tribal
culture and institutions is debatable. However, it is not a frivolous question. Tribes must judge for
themselves, but it is important that all involved or potentially involved evaluate the issue on its merits. In
the case of tribal-federal agreements or tribal-state agreements, it is possible that intergovernmental
cooperation can strengthen tribal culture by ensuring tribal control over an area that might be otherwise
dominated by another government. Just as easily, there can be agreements that fail to protect essential
58 Id. at 33.
59 Id. at 34
60 Id. at 35.
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tribal interests. The difference between the two lies not in the fact of joint governmental actions, but
rather the difference lies in the nature of the agreement.61 Intergovernmental agreements can be an
important environmental management tool. Because they are not permanent devices, they do not
necessarily alter any entity's position in perpetuity. Content, however, is an important consideration.
Intergovernmental agreements are discussed in more detail in Chapter Three.
VI. SELECTED NATIONAL/REGIONAL INDIAN ORGANIZATIONS
It is very important and required by the EPA Indian Policy that EPA work with tribes on a govemment-
to-govemment basis. But because there are so many tribes, it is often helpful to work through intertribal
networks such as intertribal consortia, tribally-controlled organizations, and grassroots organizations
formed around various topics throughout Indian country. Tribal and grassroots organizations can also be
valuable in obtaining comment and feedback on agency actions. Tribes may also want to use their
intertribal mechanisms to facilitate the development of tribal environmental program. However, it is
import to know that a tribe truly desires this. Many tribes do feel that intertribal mechanisms are the best
means for maximizing financial and other resources to address environmental priorities. It is equally
important that working with intertribal organizations not be used as a substitute for direct tribal
consultation and communication. More than 150 tribal organizations exist throughout the country that
address environmental and natural resource issues. Below is an illustrative selection of some of these
national organizations. For information and contacts for additional organizations, please contact the
American Indian Environmental Office at (202) 260-7939 or visit the web site at
http://www.epa.gov/lndicm.
National Congress of American Indians: The National Congress of American Indians (NCAI), founded
in 1944, is the oldest, largest, and most representative national Indian organization, serving more than
three quarters of the American Indian and Alaska Native population. NCAI is organized as a
representative congress of consensus on national priority issues. NCAI issues and activities include
protection of Indian cultural resources and religious freedom, promotion of Indian economic opportunity,
and support of environmental protection and natural resources. Over the past few years, NCAI has
passed numerous resolutions supporting various environmental issues. For more information, visit the
web site at http://www.ncai.org or call (202) 466-7767.
All Indian Pueblo Council: All Indian Pueblo Council (AIPC) was created more than 400 years ago
and is currently an intertribal consortia whose members include all 19 federally-recognized pueblos in
New Mexico. AIPC, through its Pueblo Office of Environment Protection, provides technical assistance,
training, and support for the environment programs of its member pueblos. For more information, call
(505)881-1992.
61 Id. at 37.
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Inter-Tribal Environmental Council of Oklahoma: Inter-Tribal Environmental Council of Oklahoma
(lT.bC) was formed in October 1992 by the signing of a Memorandum of Understanding between 20
Oklahoma tribes and EPA Region 6. Since that time other tribes have joined and the current membership
is 31 of the 37 federally-recognized tribes in Oklahoma. ITEC provides environmental management for
air, land, and water resources to the member tribes. The Cherokee Nation serves as the sponsor tribe, and
the elected leader of the Cherokee Nation serves as the Chairman of ITEC.) For more information, visit
the web site at http://207.2J94.130/itec/or call (918) 458-5498.
Mni Sose Inter-Tribal Water Rights Coalition: Mni Sose, is based in Rapid City, South Dakota, is
composed of 27 member tribes in the Missouri River Basin (20 in Region 8 and seven in Region 7). Mni
Sose was formally organized and recognized by the Missouri River Basin Indian Tribes in January of
1993. The Coalition's objectives are to strengthen tribal capabilities necessary to manage, control, and
protect tribal water resources and to implement tribal environmental programs. For more information,
visit the web site at http://www.mnisose.org or call (605) 343-6054.
National Tribal Environmental Council: The National Tribal Environmental Council (NTEC) was
formed in 1992 and is a membership organization dedicated to working with and assisting tribes in the
protection and preservation of the reservation environment. NTEC is open to membership to federally-
recognized Indian tribes and currently has 82 member tribes from the continental United States and
Alaska. NTEC services include environmental technical support, newsletters, updates, federal regulatory
and legislative summaries, workshops on specific environmental issues, resource clearinghouse and
reference library, and intergovernmental cooperation. For more information, call (505) 242-2175.
United South and Eastern Tribes: The United South and Eastern Tribes (USET) is an intertribal
organization comprised of 23 federally-recognized tribes. The primary goals and objectives of USET
include the promotion of tribal health, safety, welfare, education, economic development, and
employment opportunities and the preservation of cultural and natural resources. For more information,
visit the web site at http://www.one-web.org/oneida/uset/uset.html.
Inter-Tribal Council of Arizona: The Inter-Tribal Council of Arizona was formed in 1953. In 1975 it
established the Inter-Tribal Council of Arizona, Inc. (ITCA) to provide a united effort to promote Indian
self-reliance through public policy development. ITCA provides an independent capacity to obtain,
analyze, and disseminate information vital to Indian community development. The 19 member tribes of
ITCA are the highest elected tribal officials, tribal chairpersons, presidents, and governors. ITCA staff of
approximately 45 currently implement programs fulfilling goals of ensuring self- determination for tribes
in Arizona. For more information visit the web site at http://www.primenet.com/-itca/or call (602) 248-
0071.
Northwest Indian Fisheries Commission: The Tribes of the Puget Sound established the Northwest
Indian Fisheries Commission in 1974 to help them manage their fisheries and to provide member tribes a
single, unified voice on fishery-related issues. The Commission employs about 50 people full time in
providing informational and educational services, fishery management, planning and enhancement
support, environmental coordination, and quantitative and technical services. For more information, visit
the web site at http://mako.nwifc.wa.gov or call (360) 438-1180.
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Columbia River Intertribal Fish Commission: The Columbia River Intertribal Fish Commission
(CRTTFC) was created in 1977 to coordinate the management and protection of the tribes' treaty fishery
resource and to implement the tribes' fishery policies and objectives in the Columbia Basin. The
governing body of CRTTFC, the Commission, consists of the Fish and Wildlife Committees of Warm
Springs, Yakama, Umatilla and Nez Perce Tribes located in Oregon, Washington, and Idaho. The
CRITFC staff consists primarily of biologists, attorneys, and other professionals who provide legal and
technical assistance to the tribes on issues relating to protection, enhancement, and sustainable use of the
fishery resources in the Columbia River Basin. For more information, visit the web site at
http://yvww.critfc.org or call (503) 238-0667.
Great Lakes Indian Fish and Wildlife Commission: The Great Lakes Indian Fish and Wildlife
Commission (GLIFWC) provides technical assistance to its 11 member tribes in the conservation and
management offish, wildlife, and other natural resources throughout the Great Lakes region, thereby
ensuring access to traditional pursuits of the Chippewa people. During 1995, GLIFWC employed
approximately 70 full-time and 125 part-time or temporary staff. For more information, visit the web site
at http://www.glifwcis@win.bright.net or call (715) 682-6619.
Wisconsin Tribal Environmental Committee: The Wisconsin Tribal Environmental Committee
(WisTEC) is an intertribal consortia consisting of the 11 tribes located within the exterior boundaries of
the State of Wisconsin. WisTEC services include the management of an EPA Environmental Justice
grant to help its member tribes develop of their environmental capacity through technical assistance and
intergovernmental cooperation.
Native American Rights Fund: The Native American Rights Fund (NARF) was formed in 1970 to
provide top-quality legal representation to tribes regardless of their ability to pay. Over the last 26 years,
NARF has represented more than 180 tribes and its work has included the areas of tribal reservation,
protection of tribal natural resources, promotion of human rights, and development of Indian Law. For
more information, visit the web site at http://www.narf.org or call (303) 447-8760.
Indigenous Environmental Network: The Indigenous Environmental Network (JEN) is governed by a
national council of indigenous grassroots organizations and individuals. The services provided by the
IEN National Office include a national clearinghouse on environmental issues, a resource and referral
network for technical information and fact sheets, national/regional/local education on grassroots
organizing, training, and strategy development, annual conference planning and development, and
information dissemination on indigenous grassroots environmental groups and tribal government
environmental programs. For more information, visit the web site at http://www.alphacdc.com/ien or call
(218)751-4967.
American Indian Science and Engineering Society: The American Indian Science and Engineering
Society (AISES) is a private, nonprofit organization that nurtures building of community by bridging
science and technology with traditional native values. EPA has a partnership with AISES known as
Tribal Lands Environmental Science Scholarship Program, through which the Agency provides
educational opportunities to Native American students. For more information, visit the web site at
http://www.colorado.edu/AISES or call (303) 939-0023.
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Inter-tribal Fisheries Assessment Program: The Intertribal Fisheries Assessment Program's mission
is to provide biological information and make management recommendations. For more information,
visit the web site address at http://www.northernwoy.net/~qitfap/qitfap.htm or call (906) 632-0072.
Inter-Tribal GIS Council: The Inter-Tribal GIS Council provides technical information, digital data
integration for Tribal government. For more information, visit the web site at
http://www.mtjeff.com/-wsgis or call (541) 276-3165.
Inter-Tribal Timber Council: The Inter-Tribal Timber Council advocates the conservation,
enhancement and development of tribal timber resources for the benefit of tribal members. For more
information, visit the web site at http://www.teleport.com/-itcl/irtdex.html or call (503) 282-4296.
Chippewa Ottawa Treaty Fisheries Management Authority: The Chippewa Ottawa Treaty Fisheries
Management Authority manages and regulates the 1836 treaty fishery for the Bay Mills Indian
Community, Sault Ste. Marie Band of Lake Superior Chippewas and the Grand Traverse Band of
Chippewa and Ottawa Indians. For more information, visit the web site at
http://www.northemway.net/-qitfap or call (906) 632-0043.
Council of Energy Resource Tribes (CERT): CFJIT promotes the general welfare of member tribes
through the protection, conservation, control and prudent management of their oil, coal, natural gas,
uranium, and other resources. Activities include giving on-site technical assistance to tribes in energy
resource management, conducting programs to enhance tribal planning and management capacities, and
sponsoring workshops. For more information, call (303) 297-2378. (no web site.)
Inter-Tribal Agriculture Council: The Inter-Tribal Agriculture Council's mission is to promote Indian
natural resources. For more information, call (406) 259-3525.
Inter-Tribal Bison Cooperative: The Inter-Tribal Bison Cooperative (ITBC) provides technical support
to tribal bison management operations and helps tribes acquire, care, and develop these animals. The
cultural significance of bison to Native Americans is a significant factor in the ITBC's advocacy of tribal
management of bison. For more information, visit the web site at http://www.intenribalbison.org or call
(605) 394-9730.
National American Indian Cattlemen's Association: The National American Indian Cattlemen's
Association promotes the betterment of the Indian Cattle Industry and provides technical information to
Native cattlemen. For more information, call (509) 854-1329. (Per a conversation 2/23/98 with a woman
at this number, the Association is inactive at this time.)
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Native American Fish & Wildlife Society: The Native American Fish & Wildlife Society exists for the
protection, preservation, and enhancement of fish & wildlife resources. The Society's purposes are
charitable, educational, scientific, and cultural. For more information, visit the web site at
http://www.iex.net/nafws (soon the site will be http://www.nafws.org) or call (303) 466-1725.
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CHAPTER TWO: FEDERAL INDIAN LAW
I. INTRODUCTION
A. What Is Federal Indian Law?
The term "federal Indian law" refers to the body of law that defines the legal relationship between the
United States and the Indian tribes.62 As the name implies, it does not generally include either state law
or the laws that tribes have developed to govern themselves, their members, and their territory. Federal
Indian law originated in the dealings between the European colonial powers and the native nations of the
Americas. The framers of the Constitution affirmed this relationship by delegating the power to regulate
relations with Indian tribes to the Federal Congress. From two lines in the Constitution, federal Indian
law has grown to encompass about 380 treaties, separate volumes of both the U.S. Code and Code of
Federal Regulations, and thousands of court decisions. It continues to grow today as tribes increasingly
take an active role in areas of government denied them in the past.
Originally, Indian nations were not considered part of the United States. Article I of the Constitution, for
example, disallows counting "Indians not taxed" toward apportionment of the House of Representatives.
Since then the relationships between the United States, the tribes, and the states have continuously
evolved. As the tribes became more integrated into the United States, they lost or gave up several
attributes of sovereignty, and their people became U.S. citizens—both taxed and apportioned
representation in Congress. Today, Indian nations form an integral part of the national system, while
retaining most of the attributes of their original status as self-governing sovereign nations.
That status as sovereign nations within the United States gives tribal governments a role unlike that of the
other two types of U.S. sovereigns—the federal government and the states. Tribes may regulate a wider
range of subjects than the federal government, but do not have the same extensive powers as the states.
On the other hand, tribes, not having signed the Constitution, are not bound by its restrictions, unlike the
federal government and state governments. Tribes are, however, subject to the supremacy of federal law.
B. Definition of Tribe, Indian, and Indian Country
One of the most fundamental assumptions of Indian law is that the basic relationship between the United
States and a tribe is one between the two nations through their respective governments. Federal Indian
law primarily concerns tribal sovereignty, individual and tribal property rights, and the division of
jurisdiction between the tribes and states. "Literally every piece of legislation dealing with Indian tribes .
.. single[s] out for special treatment a constituency of tribal Indians ... "63 To be found constitutional,
however, "Federal racial classifications ... must serve a compelling government interest, and must be
62
Including federally-recognized Alaska Native entities.
63 Morton v. Mancari, 417 U.S. 535, 552 (1974).
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narrowly tailored to further that interest."*4 The Supreme Court has very rarely found such a compelling
justification.
At first glance, federal Indian statutes may appear to violate this prohibition. The Supreme Court has
found, however, that the classification of Indians is not suspect so long as the classification depends upon
the Indians' membership in a tribe with governmental status, and not upon the perceived racial
characteristics of the individuals.65 Thus, Indian and tribe, both of which are also ethnological terms,
have taken on a different significance as legal terms. As such, the classification is political, not racial,
because it depends on membership in a tribe. Interestingly, the determinations of what entities are tribes
for these purposes are ultimately up to Congress.
Tribe: There is no definitive legal description of what constitutes a tribe that applies to all areas of this
field of law. One of the most widely-used descriptions comes from the 1901 Supreme Court case,
Montoya v. United States: "a body of Indians of the same or a similar race, united in a community under
one leadership or government, and inhabiting a particular though sometimes ill-defined territory."66 As
far as the federal government is concerned, it only has a government-to-government relationship with
those tribes that it has recognized. As a result, the typical definition of "tribe" is functional rather than
descriptive: a tribe is an entity that appears on the list of federally-recognized tribes published annually
by the Bureau of Indian Affairs (BIA), Department of the Interior (DOI).67 The federal government has
recognized over 550 tribes by treaty, statute, executive order, the presence of a long-term historical
relationship, or other means.
Since 1978, BIA has used powers delegated by Congress to extend recognition to tribes. The Bureau's
regulations require that a tribe seeking recognition has maintained a distinct identity, has exercised
political authority over its members through history to the present, has drawn that membership from a
historical tribe (but not primarily from the membership of another recognized tribe), and currently has
governing procedures and methods of determining membership. In addition, Congress must not have
expressly terminated or forbidden a federal relationship with the tribe.68
64 Adarand Constructors v. Pena, 515 U.S. 200, 235 (1995).
65 E.g., Fisher v. District County Court, 424 U.S. 382, 390 (1976).
66 ISOU.S.261,266.
£.£., Indian Entities Recognized and Eligible to receive Services from the United States Bureau of Indian
Affairs, 62 Fed. Reg. 55,270 (1997). The Federally-Recognized Indian Tribe List Act of 1994, which requires
publication of this list, defines "[tjhe term 'Indian tribe' [to] mean any Indian or Alaska Native tribe, band, nation,
pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe." 25 U.S.C.
§479a.
68 25 C.F.R. §83.7(1997).
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Tribes not on the list of federally-recognized tribes do exist independent of federal acknowledgment,
however, as demonstrated by the fact that tribes gain recognition from time to time. This attests to the
origins of tribes separate from the United States even where they have no governmental presence in
federal law. However, the distinction is often academic. Many tribes without the protection of federal
recognition have collapsed and disappeared because there was no way to assert themselves under state
and federal regulation.
Indian: Just as tribes determine for themselves whether and in what form to persevere or cease to exist,
they also determine their own membership. The significance of this in federal Indian law is that the
definition of Indian also tends to be functional: a member of an Indian tribe. Therefore, the tribes
determine who is an Indian. Of course, that means that the definition of Indian tends to incorporate the
membership criteria of hundreds of federally-recognized tribes. In addition, the federal government has
codified definitions of Indian for various purposes that impose so-called blood quantum requirements or
eliminate the tribal membership requirement. It is important to note that Indians also constitute an ethnic
minority in the United States protected by the civil rights guarantees of the Constitution and Civil Rights
Acts. As such, discrimination for or against Native Americans on the basis of race, color or national
origin is as illegal as it is for other ethnic groups.
Indian country: Federal Indian law and tribal laws generally only apply, and state laws generally
have no effect, within the area known as Indian country. Historically, Indian country was the area
beyond the frontier where Indian nations still held sway. Today, Indian country is that part of the United
States set aside for Indian nations. While the legal definitions of tribe and Indian tend toward the
circular, in 1948 Congress codified the definition of Indian country:
"Indian country" ... means (a) all land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments,
the Indian titles to which have not been extinguished, including rights-of-way running through
the same.69
While the statutory definition only purports to define the limits of the applicability of a chapter of the
U.S. criminal code, the Supreme Court has held that it also provides a generally appropriate definition of
the frontiers of tribal and civil federal Indian law jurisdiction on one hand and state jurisdiction on the
other. This is not as incongruous as it seems since Congress based the statutory language on Supreme
Court precedents.
69 18U.S.C.§ 1151.
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II. HISTORY OF FEDERAL INDIAN LAW
The different types of Indian country memorialize the sometimes radical shifts in Indian policy
throughout U.S. history. To understand how tribes have managed to retain the territories and powers that
they have today, one must look to sometimes quite ancient history.
A. Pre-contact
Indian tribes have lived in the Americas since time immemorial. Anthropologists may define this as tens
of thousands of years ago, but federal Indian law flattens out this immense time span into pre- and post-
contact eras. Events in the Americas before European exploration have no legal significance in the
field although they may in tribal law. It should come as no surprise given tribal longevity that tribes
now within the United States have had formal, government-to-government relations with a variety of
European powers, their colonies, the original states, and finally with the United States.
B. European Colonization
Various legal theories on how to acquire Indian land properly prevailed during the period between the
first contacts between Europeans and Native Americans and the ratification of the Constitution. These
theories differed on such major points as whether the Indian nations held title to the land or if only so-
called Christian nations could do so, and whether only the nations could buy and sell those lands, or if
individuals could do so.
In 1532, Francisco de Victoria advised the Spanish Emperor that European rights to lands occupied by
Indians were not superior to those of the Indians. Therefore, Spain would need the consent of the tribes
to take dominion over land in the Americas or else conquer them in a just war. Spain, the Pope, and
within 100 years, the other colonial powers adopted Victoria's reasoning as law with some significant
variations.70 Despite doctrinal differences, Europeans generally purchased land from the Indian tribes
through treaties negotiated between the political leaders of the colonies and the tribes as representatives
of independent nations. That is not to say that the expansion of European settlement was generally fair,
peaceful, or lawful.
In order to maintain peace with the Indian tribes and discourage their alliance with France, King George
ffl of England, in the Proclamation of 1763, forbade the encroachment of colonists into the Indian
territory west of the Appalachians, implicitly recognizing Indian ownership. This greatly antagonized the
colonists, many of whom continued to purchase land directly from the Indians.
Treaty making by the fledgling United States followed the govemment-to-govemment pattern set prior to
the Revolution, however. The 1778 Treaty with the Delawares, the first between the United States and
70 Felix Cohen, Handbook of Federal Indian Law 50 (1982 ed.).
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an Indian tribe, pledged friendship and respect for the separate territory of the two nations.71 Before the
adoption of the Constitution in 1789, the United States and the several states concluded many Indian
treaties. They sought primarily to establish peace and territorial boundaries, and to regulate trade and the
extradition of criminals, among other subjects.
C. Foundation of Federal Indian Law and Policy (1789-1871)
The Constitution, ratified in 1789, delegated all power over Indian affairs to the federal government.
States negotiated treaties with and purchased land from tribes after that time, but the Constitution made
those actions ineffective or illegal. Soon after the assembly of its first session, Congress passed the first
Trade and Intercourse Act restricting all dealings with Indians to licensed traders, outlawing the purchase
of lands directly from Indians and assigning punishments to crimes committed by colonists against
Indians.72
1. The Marshall Trilogy: The Bedrock of Federal Indian Law
In 1823, Chief Justice Marshall wrote the first of these cases, Johnson v. Mclntosh, which addressed
competing claims to the same lands acquired from the same Indian tribe by different means.73 The first
claim was based on a purchase by a private consortium, while the second claim was based on a purchase
by the United States through a treaty. The Supreme Court held that Indian nations could only convey
complete ownership of their lands to the United States, not private individuals. Chief Justice Marshall
based his opinion on the United States' adoption of the doctrine of discovery, which held that a title to
Indian lands vested in the European power that claimed them.74 "The absolute ultimate title has been
considered as acquired by discovery, subject only to the Indian title of occupancy, which title the
discoverers possessed the exclusive right of acquiring."75 Chief Justice Marshall found that the Indian
title was compatible with U.S. property law and was defensible against all but the federal government.76
Since Indian tribes did not have full title, they could not convey it. Only the United States could do so,
but it must first extinguish the Indian right of occupancy by purchase or by conquest.77 The claimants
1! Treaty with the Delawares, Sept. 17, 1778, 7 Slat. 13.
72 Cohen, supra note 70, at 110.
73 21 U.S. (8 Wheat.) 543 (1823).
74 Id. at 587.
75 Id. at 592.
76 Id.
77 Id. at 587.
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who had bought lands directly from a tribe could have received only the Indian title of occupancy that the
treaty later extinguished.78
Marshall noted and questioned the justification of this doctrine based as it was on the lesser value placed
on Indian cultures by European powers. Marshall opined that it was not up to the "courts of the
conqueror," which owed their legitimacy to the doctrine of discovery to question that concept:
However extravagant the pretension of converting the discovery of an inhabited country
into conquest may appear; if the principle has been asserted in the first instance, and
afterwards sustained; if a country has been acquired under it; if the property of the great
mass of the community originates in it, it becomes the law of the land, and cannot be
questioned.79
This approach legitimized U.S. expansion at will, legally confirmed ultimate federal control of Indian
affairs, and restrained encroachment not authorized by the federal government into Indian territories.
Most importantly, it confirmed the necessity of treaty making to a nation that sought to expand, but avoid
war with the Indian tribes.
Although the Constitution, several acts of Congress, and the Supreme Court had resolved on paper which
government would have responsibility for Indian affairs, they did not end the competition between the
federal government and state governments for actual control of Indian affairs. In addition, they did not
define the position that Indian tribes held in or out of the new republic. The mounting three-way
conflicts diffused for a time when Congress resolved in 1830 to remove the Indian tribes from the
borders of the states then in existence to the newly-acquired lands west of the Mississippi—lands
occupied by other Indian tribes.
Of the tribal-state strife that motivated the removal policy, the conflict between the thriving Cherokee
Nation and the rapidly growing State of Georgia may have been the most acrimonious. In any case, it
was the most litigated, yielding the second two cases in the Trilogy. The State of Georgia, in an attempt
to oust the Cherokee Nation from its lands in spite of its treaty with the United States, began a campaign
of official harassment:
the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out
among the neighboring counties of the state, extend her code over the whole country,
abolish its institutions and its laws, and annihilate its political existence.80
In Cherokee Nation v. Georgia, the Cherokee Nation challenged the legality of these actions directly in
the Supreme Court invoking the Court's original jurisdiction over suits between a state and a foreign
78 Id. at 592.
79 Id. at 591.
80
Worcester v. Georgia, 31 U.S. (6 Pet.) 515.542 (1832).
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state.81 The Court dismissed the case in 1831, ruling that it lacked jurisdiction to hear the case because
"an Indian tribe or nation within the United States is not a foreign state in the sense of the
constitution."82 Marshall held that Cherokee had shown that it was indeed a state by virtue of its self-
government and its treaty relationship with the United States,83 but he rejected the argument that the
Nation was foreign since it was wholly within the United States.84 Later cases have generally accepted
Marshall's comment that Indian tribes "may, more correctly, perhaps, be denominated domestic
dependent nations"85 as the definition of tribal status in the federal system. Thus, for U.S. law, the
independence of Indian tribes since time immemorial finally came to an end, but not their power to
govern their territory.
A year later, in 1832, the Supreme Court ruled in a case arising from the enforcement of the same
Georgian laws in Worcester v. Georgia.66 Missionaries to the Cherokee Nation appealed their conviction
in Georgian courts for not having received a license from the Governor of Georgia to enter Cherokee
country. Marshall, tracing the colonial history to which the United States was an heir and relying on
principles of international law, held that the relationship between the United States and the Cherokee
Nation resembled that of a guardian to its ward, and precluded relations with other colonial powers, but
did not divest the tribe of its sovereignty: "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 protection."87 Marshall concluded "[t]he Cherokee nation, then, is a distinct community,
occupying its own territory, with boundaries accurately described in which the laws of Georgia can have
no force."88 Furthermore, "[t]he whole intercourse between the United States and this nation, is, by our
81 30 U.S. (5 Pet.) 1, 16 (1831). The Court found that Georgia could "unquestionably be sued in this court,"
id., because it assumed at the time that states were not immune from suit by foreign slates. Monaco v. Mississippi,
292 U.S. 313, 330 (1934) (Eleventh Amendment immunity bars suits by foreign states against states without their
consent). Generally, tribes and states may sue each other only with a waiver of the defendant government's
sovereign immunity. E.g., Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) (state sovereign immunity
to suit by tribe); Oklahoma Tax Comm'n v. Potawatomi Tribe, 498 U.S. 505 (1991) (tribal sovereign immunity to
suit by state).
82 Cherokee Nation, 30 U.S. at 20.
83 Id. at 16.
84 Id. at 17.
85 Id. at 16
86 31U.S. (6 Pet.) 515 (1832).
87 Id. at 560-61.
88 Id. at 561.
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constitution and laws, vested in the Government of the United States."89 On the basis of the continued
exclusive sovereignty of the Cherokee Nation and the delegation of the power to regulate Indian affairs
exclusively to the Federal Government "[t]he act of the state of Georgia... [was] consequently void."90
The Marshall Trilogy stands for the proposition that Indian tribes had lost the ability to transfer their
lands or enter treaties with any entity except the United States, but were otherwise unchanged, distinct
political entities that could continue to rule their own territories within the United States. Over the next
century and a half, the courts and Congress eroded those clear rules, but they remain the starting points
for any analysis of the powers of tribes.
2. Removal
The federal government never had to force the State of Georgia to comply with Worcester because the
Governor pardoned the missionaries instead. During the litigation the removal of Indians throughout the
east had begun. The 1835 treaty of New Echota purported to cede all Cherokee lands. Most Cherokee
rejected the treaty, but in 1838 the United States forced the Cherokee to leave their ancestral lands,
homes, and possessions at gunpoint. The Trail of Tears refers to the forced march of nearly the entire
17,000-member Cherokee Nation from northern Georgia to present-day Oklahoma that killed 4,000
Cherokees. The removal policy had reached its height. The United States eliminated nearly all Indians
from the fertile eastern United States and placed most in the semiarid center of the country— known at
the time as the Great American Desert. Even today, the conspicuous absence of any large Indian
populations in the East or many tribal groups in an area that once had a dense Indian population testifies
to the chilling results of this immense segregation policy. Despite that, a few remnant tribes do remain to
assert their presence in the East. The removal policy gave way in the 1850s to an official policy of
confining Indians to reservations rather than attempting to remove them beyond the quickly expanding
frontier.
3. Treaties
Worcester confirmed that Indian treaties were of the same dignity and weight as other treaties." The
Constitution recognizes treaties as the supreme law of the land, on the same level as acts of Congress,
which means that they preempt State law, but may be abrogated by a later act of Congress. Today, in
many ways, the fight to have the terms of treaties fulfilled forms the centerpiece of the Indian tribes'
quest to expand recognition of their rights. Ironically, treaties had the opposite effect when they were
made. In making treaties, the United States clearly recognized tribal authority. Typically, however,
treaties served as the instrument by which the tribes ceded to the United States portions of their land and
other rights. Furthermore,
Id.
90 Id.
91 Id. at 559.
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The legal force of Indian treaties did not insure their actual enforcement. Some
important treaties were negotiated but never ratified by the Senate, or ratified only after a
long delay. Treaties were sometimes consummated by methods amounting to bribery, or
signed by representatives of only a small part of the signatory tribes. The Federal
Government failed to fulfill the terms of many treaties, and was sometimes unable or
unwilling to prevent States, or white people, from violating treaty rights of Indians.92
Over the course of United States-Indian treaty making, from 1778 to 1871, the United States ratified
about 380 treaties. In the 1840s and 1850s, a flurry of treaty making occurred with Indian tribes in the
northern plains, the Northwest, the West, Southwest and Texas. These treaties did not generally seek the
removal of tribes from contact with the few states in the area at that time, but rather confined the tribes to
smaller reserved territories. Tribes would cede most of their lands, but reserve certain lands and other
rights to themselves. These lands and other rights were not necessarily coterminous, which has led to
Indian rights to hunt, fish, and gather, among other things, outside of the lands reserved by them. The
United States negotiated few treaties between the outbreak of the Civil War and the end of treaty making
in 1871.
An 1871 rider on an appropriations bill ended treaty making with Indian tribes. At least part of the
reason was because the House, which has primary authority over appropriations, had no say in the
negotiation of treaties, but was responsible for dispensing the funds required by them. A practical reason
for ending the treaty process was that there was no longer anywhere that Indians could live out of the
paths that the United States had chosen for settlement. The rider (as codified) reads:
No Indian nation or tribe within the territory of the United States shall be
acknowledged or recognized as an independent nation, tribe, or power with
whom the United States may contract by treaty; but no obligation of any treaty
lawfully made and ratified with any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired.93
The effect of the provision was to replace treaties with agreements that the Executive Branch negotiated
and both Houses of Congress enacted into law. Acts of Congress, of course, have the same legal effect as
treaties. Congress and the Executive Branch continued to set aside land for Indians. Thus, the move was
mostly symbolic, heralding the beginning of the assimilation era.
D. Attempted Assimilation (1871-1928)
The focus of federal Indian laws now shifted to the removal of more lands from Indian tribes to the
United States for settlement, the expansion of federal laws into internal tribal affairs, the widespread use
of mandatory boarding school education far away from home to "take the Indian out of the child," and,
above all, the allotment of reserved tribal lands to individual Indian ownership.
9~ Cohen, supra note 70 at 63.
93 25U.S.C. §71.
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1. Allotment
The General Allotment Act (Dawes Act) enabled the President to allot small parcels of tribal lands to
individual Indians who selected them, to hold the land in trust for 25 years or longer to prevent the
transfer of the land, to sell lands left after allotment to the United States, to subject allottees to State civil
and criminal jurisdiction, and to extend U.S. citizenship to allottees. Under the original Act the heads of
households and minors received 160 and 40 acres each. An amendment soon changed the amount to 80
acres of fanning land or 160 acres of grazing land per Indian. Later amendments made it much easier to
alienate these lands before the 25 years were up.
The allotment acts sought to break up tribes by breaking up ownership of the land. The various acts,
however, did not purport to eliminate tribal governments. Policy makers generally hoped, however, that
tribes would fade away once individual private property ownership made Indians independent of the
tribe, and tribal members learned how to live in the larger society. As Theodore Roosevelt put it, "the
General Allotment Act is a mighty pulverizing engine to break up the tribal mass. It acts directly upon
the family and individual."94 Of the 138 million acres in Indian or tribal hands in 1887, only 48 million
remained in 1934. Most of the loss was due to the cession to the United States of the 60 million acres of
tribal land that Congress declared "surplus"—no longer needed by Indians—after the allotments had
been made. Of those, the United States paid for 40 million acres, and the rest were simply opened to
homesteading by Congress. That would not have been nearly as traumatic had the allottees been able to
hold on to their lands. As a rule they did not. The small size of the allotments often made them
economically unsound as farms. Of 35 million acres allotted, 27 million were lost or sold, generally
through tax sales or swindles.95 Despite the massive dispossession caused by allotment, it was the
official policy of the United States for nearly 50 years.
2. Case Law at the Turn of the Century
Major Supreme Court Indian jurisprudence at the end of the 19th century swung back and forth between
the conceptions of tribes as self-governing sovereigns and mere federal subjects. In 1882, McBratney v.
United States bucked the Worcester rule of exclusion of state law, and found state jurisdiction over the
murder of a non-Indian by a non-Indian in Indian country. In 1883, Ex pane Crow Dog reversed the
federal court conviction of an Indian for the murder of another Indian, finding that federal laws not
specifically directed at Indian country could have no effect there. Congress immediately passed the
Major Crimes Act, which applied federal law to seven crimes in Indian country. In 1886, United States
v. Kagama upheld this new federal intrusion into internal tribal self-government. In 18%, Talton v.
Mayes held that the source of tribal powers predated, and was not modified by, the Constitution.
Therefore, the restrictions of the 5th and 14th Amendments did not apply to tribes. In 1903, Lone Wolfv.
Hitchcock upheld the unilateral sale of lands by the United States in direct contravention of a treaty
requirement of the consent of three-fourths of adult males for the sale of tribal land. These cases seem to
exemplify the confusion caused by the phrase "domestic dependent nations." Crow Dog and Talton
follow the Worcester conception of tribes as internally autonomous, but subject to express, overriding
94 Charles Wilkinson, American Indians Time and the Law 19 (1987).
95 Id. atl9,fn.65.
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federal authority. On the other hand, McBratney, Kagama, and Lone Wolf ignore the explanation of
dependency found in Worcester and instead take it literally to mean complete dependence on the United
States for government and support. This conformed completely with the allotment policy, which cast
itself as a means to make a helpless people independent.
E. Reorganization (1928-1942)
In 1928, the Meriam Report96 concluded that the allotment and assimilation policy had failed. This
spurred a short period in which the federal government shifted away from a policy that encouraged the
political and social dissolution of tribes to a policy of encouraging tribal government along the lines
recommended by the United States, and protecting tribal resources. The centerpiece of this era was the
Indian Reorganization Act (IRA). IRA stopped further allotment, extended the federal trust status of
allotments indefinitely, authorized return to the tribes of surplus lands and the establishment of new
reservations. In addition, IRA offered template governments (based on the federal government) to tribes
that would accept federal oversight. Forty percent of tribes rejected the offer. Some tribes found IRA
useful in the resuscitation of tribal government, but others found it unadaptable to the tribal context.
Most tribal governments are organized under IRA.
F. Termination (1943-1968)
After just 15 years, Congress again began to embrace the dissolution of tribal ties and tribes as U.S.
policy. Many continued to believe that it was tribal existence that kept Indians from integrating into
mainstream society. Congressional reports issued between 1943 and 1950 were extremely critical of
reorganization and of BIA. Funding for BIA was greatly cut during this period. In 1952, the House
passed a resolution calling for the formulation of proposals "designed to promote the earliest practicable
termination of all federal supervision and control over Indians."97 A year later, House Concurrent
Resolution 108 passed, calling in ringing terms for the end of the special status of Indians, and the
termination of federal supervision and control over all tribes in several states and several additional
tribes.98 This resolution was not binding, but it did guide the course of termination policy. Congress
terminated the federal relationship with more than 100 tribes in the next few years. Typically, the tribes
lost their land, became subject to state authority, and found it impossible to exercise their governmental
authority. In tandem with termination of tribes, BIA embarked on a very large relocation program that
granted money to Indians to move to selected cities to find work. After cutting BIA's budget for 10
years, Congress had to triple it to keep up with the costs of termination and relocation.
96 A private, two- year study of BIA requested by the Secretary of the Interior. Cohen, supra note 70, at 144
97 Cohen, supra note 70, at 170.
98 Id. at 171.
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1. Public Law 83-280
Congress also enacted Public Law 83-280 (PL 280) in 1953, delegating limited jurisdiction over Indian
country to several states.99 PL 280 states are divided between six so-called mandatory states named in
the Act, and nine optional states that assumed jurisdiction later by simply changing their own laws. No
provision of PL 280 required tribal assent to this process, although most of the optional states did seek it.
The mandatory states—Alaska (added in 1958), California, Minnesota, Nebraska, Oregon, and
Wisconsin—received the full extent of the jurisdiction delegated by the Act.100 The optional
states—Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, Utah, and Washington—
assumed all or part of the jurisdiction offered.101 Consequently, one must look to the state law of the
optional states to know what jurisdiction the state assumed.
In PL 280, Congress extended state criminal jurisdiction into Indian country, and repealed the federal
criminal laws relevant to Indian country for selected states and Indian country. PL 280 probably did not
repeal tribal criminal jurisdiction, but the criminal laws of affected tribes could not conflict with state
law.102
The Supreme Court ruled that PL 280's grant of civil jurisdiction did not go as far based on differences
between the statutory language in the criminal and civil grants of authority, and the presumption that the
Court will not imply limitations on tribal authority.103 In Bryan, the Court found that the civil grant did
not authorize state civil regulation in Indian country.104 A later case, Cabazon, clarified the distinctions
between the civil and criminal sides, establishing the inapplicability of civil/regulatory state laws and the
applicability of criminal/prohibitory state laws.105 Thus, PL 280 would not extend into Indian country
state laws regulating pollution discharges, but would extend state laws prohibiting murder.
In addition to these judicial limitations, the statute excepts certain types of jurisdiction from both the
civil and criminal grants of jurisdiction. States may not alienate, tax, or otherwise encumber assets held
in trust or otherwise restricted by the United States for the benefit of tribes or Indians.106 In addition,
99 67 Stat 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326,28 U.S.C. §§
1360).
100 18U.S.C.§1162(a).
101 Pub. L. No. 83-280 § 7,67 Slat. 588,590 (1953).
102 William Canby, American Indian Law 180 (2d ed. 1988).
10:1 Bryan v. Itasca County, 426 U.S. 373 (1976).
104 Wat388.
105 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 214 (1987).
106 18 U.S.C. § 1162(b); 28 U.S.C. § 1360(b).
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states may not regulate such assets in any way that conflicts with a treaty, statute, or agreement.107 Most
importantly, this prevents states from regulating hunting and fishing rights confirmed by treaty or
statute.108 Furthermore, PL 280 bars the state courts from adjudicating ownership, possession, or other
IfXQ
interests in trust property.
G. Self-determination (1968-present)
The self-determination era began with an act of Congress opposed by the majority of tribes, the Indian
Civil Rights Act of 1968 (ICRA)."° The primary purpose of ICRA was to impose restraints very similar
to the Bill of Rights on the tribes. Several provisions differ slightly, and others are missing altogether.
For example, ICRA does not prohibit the establishment of religion as this would radically alter the
character of some tribes, and does not guarantee counsel, civil juries, or large criminal juries in
recognition of tribal poverty.11' Most radically, ICRA provided for the writ of habeas corpus in federal
court,112 and limited criminal punishments to a maximum of $500 and six months in prison (extended to
$5,000 and a year in prison in 1986).113
The imposition of certain civil rights restraints on tribal governments and other provisions, such as the
direction to BIA to draft a model tribal court code, implied that Congress had decided that tribal
governments had a future and was planning for it. One part of ICRA clearly indicated a break from
termination policy. States could now give up their PL 280 jurisdiction over Indian country, and could
only assume jurisdiction with the consent of the tribal membership through a rigorous referral process."4
ICRA did not, however, revoke any of the earlier grants of PL 280 jurisdiction to the states.
In 1970, President Richard Nixon made the break clear in a message to Congress. He declared
termination a failure and asked Congress to repudiate it, reaffirmed the trust responsibility of the federal
government to the tribes, and called on Congress to legislate to enable an increase in tribal autonomy.
Presidents Ronald Reagan, George Bush, and Bill Clinton have all reaffirmed the message.
107 Id.
108 Canby, supra note 102, at 180.
109 28U.S.C. § 1360(b).
110 Pub. L. No. 90-284, 82 Stat. 77 (codified as amended at 25 U.S.C. §§ 1301-03,1321-22).
111 25U.S.C. § 1302.
112 Id. § 1303.
113 Id. § 1302(7).
114 Id. §§1321(a)&1322(a).
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Congress agreed. In 1973, Congress restored the federal relationship with Menominee, the largest
terminated tribe. Several other restorations followed. In the next two decades Congress passed several
significant measures that have eliminated many of the barriers to tribal self-government.
For instance, in 1975, Congress enacted the Indian Self-Determination and Education Assistance Act
(ISDA). The Act recognizes the federal trust responsibility, acknowledges that federal domination of
tribes stifled self-government and development, and that "Indian people will never surrender their desire
to control their relationships both among themselves and with non-Indian governments, organizations,
and persons.""5 The substance of the ISDA then directs BIA and the Indian Health Service (MS) to
contract out to tribes most of the services administered by these agencies. The Act also authorized grants
to help strengthen tribal management of Indian community services. Of great importance is the Act's
explicit disclaimer that the law is in no way a termination of the federal government's trust responsibility
to Indian tribes. Congress renewed its commitment in 1988:
In accordance with this policy, the United States is committed to supporting and assisting
Indian tribes in the development of strong and stable Tribal governments, capable of
administering quality programs and developing the economies of their respective
communities."6
Congress passed many other statutes to encourage the protection of tribal government and Native
American culture and religion. In addition to acts designed specifically to promote tribal government,
Congress has brought tribes into a number of national programs: ISTEA"7 and environmental statutes,
among others. Congress also has provided funding for tribal participation in those programs the way it
does for states. See "Chapter Three: EPA's Approach to Environmental Protection in Indian Country"
for a discussion of how Congress has explicitly brought tribes into some environmental statutes.
For the first time in history, the United States began to support tribal government actively as an end in
and of itself, rather than a means to protect Indians for the time-being. It acknowledged, after nearly two
centuries of assaults and insults to tribal self-government, that there was little use in attempting to
eliminate tribes. It acknowledged that it should respect the will of its Indian citizens to maintain their
tribal existence despite the odds. Over time this willingness to stop working against tribal government
turned into active removal of barriers and then into devolution of tasks to tribes and support for taking on
new areas of government. As the legislative and executive branches move down this path, however, the
courts have had to address the states' challenges to tribal government in many areas, the limitations
contrary to current policy placed on tribes in the past—sometimes the distant past—and, most of all, the
undefined role of tribes in the federal system.
115 25 U.S.C. § 450.
116 Indian Self-Determination and Education Assistance Act Amendments of 1988, Pub. L. No. 100-472, 102
Stat. 2285
117
The Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240.
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III. TRIBAL SOVEREIGNTY AND JURISDICTION
Congress and the Executive Branch have reaffirmed their support for the independence of tribes through
policy statements and removal of barriers to participation in the national system as governments.
Although this does not add to or detract from tribal sovereignty per se, it does make it more practical—in
some cases possible—for tribes to exercise the powers that have always existed, but may have been used
much less since the last century.
In the face of changing federal policy, most tribes have maintained—though not always exercised—their
self-governing, sovereign nature.
A. The Source and Scope of Tribal Powers
The government's attempts to eliminate barriers to tribal government, support Indian tribal governments,
and entrust them with more responsibility and encourage the resumption of governmental functions all
depend on the tribes' independent ability to do so—tribal sovereignty. The term 'sovereignty' is often
used to mean the act of governing. Describing governing as the exercise of sovereignty may be more
accurate.
Sovereignty is the right or power that comes from itself and no other source that a government draws
upon to govern. The European conception of sovereignty that the United States received held that a
nation could have only one sovereign, the monarch. The Constitution splits sovereignty between the
states and the United States. Both sovereigns derive their authority to govern from the people, and
neither depends on the other for its authority. The tribes represent the third, independent sovereign
within the United States. The courts have reasoned that the tribes by dint of their existence since time
immemorial, prior to the inception of the other two U.S. sovereigns, must derive their authority to govern
from their own sovereignty. This stems from the original acknowledgment of the legitimacy of tribal
government outside the United States. When Worcester held that the United States had brought the tribes
within the United States, it also held that that act had not extinguished the tribal existence. Therefore,
the same tribal sovereignty continued although the new relationship with the United States limited the
exercise of that sovereignty.
1. Limitations
When the Marshall Trilogy recognized tribal sovereignty, it also established the first recognized
limitations on tribal authority. Johnson v. Mclntosh found that tribes could not convert their aboriginal
title into fee title."8 Worcester v. Georgia established that tribes within the territory of the United States
could not make treaties with other powers.119 The 1978 case Oliphant v. Suquamish Indian Tribe
introduced the implied limitation that tribes could not prosecute nonmembers for criminal actions in
118
21 U.S. (8 Wheat.) 543 (1823).
119 31 U.S. (6 Pet.) 515, 559(1832).
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Indian country, holding that it was inconsistent with their dependent status.120 In 1981, the Supreme
Court, in Montana v. United States, added another implied limitation.121 The Court held that tribes
lacked the power to apply their civil regulatory authority to nonmember activities on nonmember fee
lands in Indian country unless the nonmembers had a consensual relationship with the tribes, or those
activities affected tribal interests.122 The courts have confirmed that tribes retain many more powers than
they have lost, however.
"In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by
implication as a necessary result of their dependent status."123 Thus the inquiry, when looking at a
disputed tribal power, begins not with a search for some grant of authority to the tribal government, but
instead with an assumption that the tribe has that power. From there one must look to tribal and federal
law to see if the tribe and federal government have imposed limitations on the exercise of that power.134
This status is in some ways similar to that of the states. The Tenth Amendment reserves to the states all
powers not delegated to the federal government by the Constitution in a similar manner to the way that
tribes gave up a few powers to the United States, but reserved the rest. In the case of tribes, however, the
Constitution does not bar the federal government from changing the balance of power to the detriment of
the tribe. Although listing the limitations on tribes is easier, and enumerating all of the powers tribes still
possess is impossible, a description of some of those powers may be useful.
2. Tribal Powers
Tribes may choose whatever form of government best suits their practical and cultural needs. For
instance, tribes need not adopt forms of government patterned after the United States, including such
elements as the separation of powers. Since the Constitution does not limit tribes, they do not have to
separate their government from their religion.125 After Congress passed IRA, most tribes did, however,
adopt constitutions developed by BIA and patterned loosely after the U.S. Constitution.
Some tribes have adopted constitutions that describe their traditional form of government such as Seneca
in New York and Muskogee (Creek) and Choctaw in Oklahoma. The constitutions of some tribes remain
unwritten. The Santo Domingo Pueblo government has operated under the same unwritten constitution
for centuries. Many tribal governments have blended traditional and nontraditional elements into their
120 435U.S. 191.
121 450U.S.544.
122 Id at 564-65.
123 United States v. Wheeler, 435 U.S. 313,323 (1978).
124 Merrion v. Jicarilia Apache Tribe, 455 U.S. 130,149 (1982); See National Farmer's Union Ins. Co. v.
Crow Tribe, 471 U.S. 845,852-53 (1985).
P ICRA prevents tribes from abridging the free exercise of religion, but does not bar the establishment of
religion. 25 U.S.C. § 1302(1).
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governments. For example, these governments may appoint traditional headmen to the tribal council for
life, or provide that secular decision making be approved by the religious leadership. Tribal courts have
borrowed quite extensively from other U.S. court systems and have developed extensive rules of
procedure and evidence. However, tribal courts also rely on tribal tradition and often look for traditional
or informal methods of dispute resolution.'26
Tribes can legislate generally, adopting all manner of civil and criminal laws. This authority includes,
but is not limited to, determination of domestic rights and relations, regulation of commercial and
business relations, chartering of business organizations, disposition of nontrust property and
establishment of rules of inheritance, landuse regulation, power to raise revenues for the operation of the
government, and power to administer justice through law enforcement and judicial systems.
Tribal governments possess the attributes of sovereignty, including immunity from suit. No party but the
United States may sue a tribe without a waiver of immunity from the tribe itself or from Congress.127
Tribal sovereign immunity does not extend to tribal officials acting outside of their official capacity.128
Tribes have the power to determine tribal membership. Rights such as voting, holding office, receiving
tribal resources such as grazing and residence privileges on tribal lands, and participating in per capita
payments usually depend on tribal membership. The Indian Civil Rights Act of 1968 imposes
restrictions similar to a number of those contained in the Bill of Rights on tribal governments in dealings
with tribal citizens and others who come under lawful tribal jurisdiction.129
B. Tribal Jurisdiction
Jurisdiction is the description of subject matters, acts, places, and people over which a government may
assert control. In the United States there are constant struggles among the various governments to
determine which ones have jurisdiction to hear a case or regulate a particular area. The most familiar
occur between the federal government and state governments, but the most complicated may be those that
involve tribes because they often implicate the powers of the federal government and state governments
as well. Federal Indian law divides jurisdiction more strongly between civil and criminal halves than in
other fields because of the different ways that they have developed.
126 American Indian Lawyer Training Program, Sourcebook on Federal-Tribal History, Law, and Policy 38
(1988).
127
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
128 Id.
Cohen, supra note 70, at 666-68.
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1. Criminal Jurisdiction
Original tribal jurisdiction is inherent, complete, and exclusive over tribal members and territory. That
condition changed substantially in the late 19th century. McBratney brought crimes by non-Indians
against non-Indians in Indian country under the sole jurisdiction of the states. The Major Crimes Act and
the Federal Enclaves Act granted concurrent jurisdiction to the federal government for certain
enumerated crimes. This did not eliminate tribal jurisdiction, but it did pressure tribes not to prosecute.
ICRA (as amended in 1986) limits the criminal punishments that a tribe can assess pursuant to its self-
government to no more than $5,000 and a year imprisonment.130 This essentially limited tribal courts to
jurisdiction over misdemeanor offenses. Oliphant announced the farthest reaching limitation on tribal
criminal jurisdiction, holding that tribes have no inherent authority over crimes by non-Indians.131
Tribes retain exclusive jurisdiction over crimes not enumerated in the Major Crimes Act, committed by
Indians against Indians, or by Indians without victims. Tribes retain concurrent jurisdiction with the
federal government for all other crimes committed by Indians. In either case, under ICRA they cannot
assess the same punishments as other governments would for these sometimes very serious crimes.
2. Civil Jurisdiction
In the case of civil jurisdiction, the original conception of tribal jurisdiction essentially remains the same.
In the seminal 1959 case, Williams v. Lee, the Supreme Court recognized that tribal courts have exclusive
jurisdiction over claims arising in Indian country that implicate Indian interests.132 Two decades later,
Montana v. United States held that the Crow Tribe could not prohibit nonmember fishing on nonmember
lands within its reservation.133 However, the Court recognized that a "tribe may regulate ... the activities
of nonmembers who enter consensual relationships with the tribe or its members [or] the conduct of
non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on
the political integrity, the economic security, or the health or welfare of the tribe."134 This became known
as the Montana test, and it is exceptionally important because a significant amount of the lands in Indian
reservations has been alienated from Indian ownership. The Supreme Court found that tribal civil
adjudicatory authority extends to the same limits in Strate v. A-J Contractors.'is The Supreme Court
130 25 U.S.C.§ 1302(7).
1 ' 435 U.S. 191 (1978). The Supreme Court later followed this reasoning to its logical conclusion, ruling that
a tribe's criminal jurisdiction only reached its own members, not other Indians. Duro v. Reina, 495 U.S. 676
(1990). Six months later Congress amended ICRA to extend tribal criminal jurisdiction to nonmember Indians. 25
U.S.C. § 1301(2).
132 358U.S.217.
133 450 U.S. 544 (1981).
134 Id at 565.
135 117 S.Ct. 1404(1997).
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applied the Montana test to a tort case that arose on a state highway on an Indian reservation and
determined that the claim did not fall under the tribe's jurisdiction because it did not sufficiently affect
the tribe.136 For further discussion of tribal jurisdiction please see "Chapter Three: EPA's Approach to
Environmental Protection in Indian Country."
3. Indian Country Jurisdiction
With some exceptions, the borders of Indian country determine the extent of tribal jurisdiction, the extent
of certain types of federal jurisdiction, and the exclusion of state jurisdiction.137 There are several
different types of Indian country, and they are often found mixed together. The definition of Indian
country was developed by the Supreme court in several cases, and then codified by Congress in 1948:
"Indian country" ... means (a) all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the reservation, (b) all dependent
Indian communities within the borders of the United States whether within the original
or subsequently acquired territory thereof, and whether within or without the limits of a
state, and (c) all Indian allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.138
Indian country also includes, among other types of land, lands held in trust by the United States for
tribes, Indian Pueblos, Indian colonies, and rancherias.
Reservations: The terms "Indian country" and "Indian reservation" are often used interchangeably,
although reservations are a subset of Indian country. Originally, reservations were those contiguous,
undivided lands that Indian tribes kept when they ceded the rest of their lands to the United States.
Today, however, reservations tend not to be undivided and may have been set aside from the public
domain by an act of Congress, executive order, or treaty. The exterior boundaries of reservations often
enclose lands not owned by the tribe, including, but not limited to, allotments and nonmember-owned fee
lands. Both are considered part of the reservation, but the nonmember-owned fee lands may have
implications for the exercise of tribal civil jurisdiction over nonmember activities there. The main, but
not essential, factor is that either the tribe or the federal government has reserved the land, or the federal
government has designated the lands as a reservation. Also, if Congress opened the reservation to non-
Indian settlement it may have intended to diminish the size of the reservation, but must have made its
intention explicit.139 Outside of exterior reservation borders, the Supreme Court has held that the
136 Id.
137 DeCoteau v. District County Court, 420 U.S. 425,427 fn.2 (1975); Ahboah v. Housing Auth. of the
Kiowa Tribe, 660 P.2d 625 (Okla. 1983).
138 18U.S.C. § 1151.
139 Solem v. Bartlett. 465 U.S. 463 (1984).
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"reservation" category of Indian country includes tribal trust lands even if such lands have not been
formally declared a reservation.140
Dependent Indian Communities: The Supreme Court in Venetie interpreted the term "dependent
Indian communities" for the first time since passage of the Indian country statute. The Court held "that it
refers to a limited category of Indian lands that are neither reservations nor allotments, and that satisfy
two requirements—first, they must have been set aside by the federal government for the use of the
Indians as Indian land; second, they must be under federal superintendence."141 In so doing, the Supreme
Court relied on its prior cases on which Congress had based the statute. In one such case, United States
v. Sandoval, the Supreme Court termed the Pueblo Indian tribal lands "dependent Indian communities"
based on Congressional recognition of the tribes' fee simple title and past federal guardianship.142
In Venetie, however, the Court decided there was no federal set-aside because Alaska Native Claims
Settlement Act of 1971 (ANCSA) had revoked the reservation and transferred unrestricted settlement
lands in fee to private, for-profit Native Village corporations, with the legislative goal of promoting self-
determination and avoiding "any permanent racially defined institutions, rights, privileges, or
obligations."143 Furthermore, the Court found that several aspects of ANCSA were inconsistent with
continued federal superintendence, and did not agree that the continued provision of federal health,
social, welfare, and economic programs supported a finding of federal superintendence.144
Allotments: Allotments are lands held in trust for the benefit of individual Indians by the United
States. Between 1887 and 1934,35 million acres of reservation lands were allotted to tribal members, of
which only about eight million remained in tribal hands at the end of the allotment period. Originally,
the United States would hold allotments in trust for the allottee and protect them from loss for 25 years or
until BIA determined that the allottee was legally competent, whichever came first. At that point the
allotment would convert to fee simple title, and be subject to no more restrictions or protections.>4S In
1934, the IRA allowed the Secretary of the Interior to extend indefinitely the length of the trust period for
allotments.146
140 Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505,511 (1991); United States v. John, 437
U.S. 634,648-49 (1978).
141 Alaska v. Native Village of Venetie, 118 S.Ct. 948, 1998 U.S. LEXIS 1449,* 13 (1998).
142 231U.S.280913).
143 Venetie, 118 S. Ct. 948, 1998 U.S. Lexis 1449, *23 (quoting ANCSA, 43 U.S.C. §1601 (b)).
144 118 S.Ct. 948.
145 Cohen, supra note 70, at 131 -34.
146 Wat 148.
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4. Other Jurisdiction
Ceded Territory: Aboriginal lands sold by treaty or agreement with the United States, and reservation
lands sold to or taken by the United States are both generally called ceded territory. Many tribes retained
rights to hunt, fish, and gather other resources in their former aboriginal territories. While these lands do
not generally constitute Indian country, and a tribe cannot exercise exclusive jurisdiction over them, it
may have regulatory authority over its members engaged in the reserved uses.147 On the other hand, the
ceded reservation lands remain part of the reservation, and therefore Indian country, unless Congress
explicitly diminished the reservation when it took title to the land.148
Alaska Native Villages: Controversy continues to surround the status of Alaska Native villages, their
authority, and their lands. The relationship of the federal government with Alaska Natives has differed
significantly from that with the Indians of the contiguous 48 states. The isolation of Native settlement
explains in large pan the fact that there were no treaties with Alaska tribes and only three reservations.
Federal neglect of Alaska ended with the discovery of oil and the subsequent need to achieve finality
regarding the ownership of the land and mineral rights. The Alaska Native Claims Settlement Act of
1971 (ANCSA) extinguished the aboriginal title to all lands within the state, eliminated two of three
Indian reservations and provided funds and lands to corporations, the shareholders of which would be the
Alaska Natives. The Act did not terminate the tribal governments, the federal relationship or the federal
trust responsibility.
In February 1998, the Supreme Court, in Venetie, answered one of the many questions not resolved by
ANCSA—whether Alaska Native Villages could regulate nonmembers on ANCSA lands.149 The Court
decided that the fee lands owned by the federally-recognized Native Village of Venetie did not satisfy the
test for dependent Indian community, and as such were not Indian country.150 Since they are not Indian
country the Village cannot regulate the activities of nonmembers on these fee lands.151
The status of Alaska Native governments as federally-recognized Indian tribes entitled to the powers,
privileges, and immunities of other Indian tribes has been subject to conflicting views in the courts and
Congress, as well as between the Alaska Natives and the State of Alaska. Alaska has broadly applied,
"first territorial law and, later, state law,"152 to Alaska Natives. Until recently, the State of Alaska
consistently refused to recognize Alaska Natives as having independent tribal governments. Of particular
147 Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974).
148 Solem v. Bartlett, 465 U.S. 463 (1984).
149
118 S. Ct. 948, 1998 U.S. LEXIS 1449 (1998).
150 Id.
151 Id.
152
Cohen, supra note 70, at 763-764.
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controversy has been whether Alaska Native governments enjoy sovereign immunity from suit in state
court; the Alaska Supreme Court has ruled they generally do not.153
On the other hand, the federal government has recognized Alaska Native governments for purposes of
Native programs and services since many years before ANCSA.154 BIA has recognized 226 Alaska
Native entities as eligible for services and as having the powers and privileges of other tribes. Also, the
Internal Revenue Service included those villages listed in ANCSA in the list of tribal governments
eligible for benefits under the Tribal Tax Status Act of 1982.
There has sometimes been confusion as to which entity in a particular location is the federally-recognized
tribal government because the same Alaska Native village may have an ANCSA village corporation, a
municipal government formed under state law, and a traditional or an IRA council. Of the 210 Native
villages recognized initially under ANCSA, 120 were organized as cities under state law, of which 71
have organized IRA councils, leaving at least 90 Alaska Native Villages governed solely by traditional
village councils.155 In many villages, both the municipal government and the IRA or traditional councils
provide services to residents under different federal and state authorities. EPA's policy is to regard only
the governmental entity listed by BIA as the federally-recognized tribe under the EPA National Indian
Policy and other federal laws and regulations applying to Indian tribes. As with other tribes, EPA
determines the eligibility of Alaska Native tribes for EPA programs on a program-specific basis.
Oklahoma Tribes: The unique history of Oklahoma and the large number of tribes set Oklahoma
Indian tribes apart. Indian country exists in Oklahoma, but its extent and character remain unsettled
questions. Because Oklahoma at one point made up part of the Indian Territory—an area set aside for
the removed tribes from other parts of the country—it has a unique history of close Congressional
supervision. This has resulted in the elimination of much of the reserved tribal lands, and made it
impossible to generalize about the specific powers of tribes, particularly in eastern Oklahoma. Much of
the land remains in allotment or trust status and all tribes have broad powers of self-government. The
Supreme Court of Oklahoma has also recognized the existence of Indian country in Oklahoma.'56
Although many issues remain concerning how to effectively implement environmental programs for
Indian lands in Oklahoma and disputes over the extent of tribal jurisdiction are still ongoing, Oklahoma
tribes generally possess the same types of governmental authority as other federally-recognized Indian
tribes. This authority extends to civil regulatory jurisdiction over Indian country in the same way as
other tribes.
IV. THE FEDERAL-INDIAN RELATIONSHIP
153 Native Village of Stevens v. Alaska Management and Planning, 757 P.2d 32 (Alaska 1988).
154 David Case, Alaska Natives and American Laws 374 (1984).
155 Wat373.
156 Ahboah v. Housing Auth. of the Kiowa Tribe, 660 P.2d 625 (Okla. 1983).
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A. Federal Powers
The Congressional authority in Indian affairs is extremely broad. While the Constitution delegates the
responsibility for regulating trade with the Indian tribes to the federal government, it does not describe
the nature of the authority conveyed. Beginning with the Marshall Trilogy, the courts constructed a
plenary power doctrine premised on the historical relationship between the federal government and the
tribes that broadened the Congressional power to legislate as necessary beyond the specific delegations in
the Constitution. As a result, the Supreme Court has upheld Congressional regulation of all aspects of
Indian life, regardless of the consent or lack of consent by the tribes.
For some time the Supreme Court took the position that acts of Congress were presumptively in the best
interest of Indians, and the Court would look no further.157 The Supreme Court formally ended that era in
Morton v. Mancari, announcing that Congressional acts must be "tied rationally to the fulfillment of
Congress's unique obligation toward the Indians."158 In 1980, the Supreme Court held in United States v.
Sioux Nation that Congress had violated that standard in confiscating the Black Hills from the Sioux
Nation, and finally denounced the Court's most famous approval of unfettered Congressional discretion,
Lone Wolfv. Hitchcock.159 It has been argued, but never held, that the 5th Amendment requirement of
due process bars the federal government from taking unjust actions toward Indians, such as extinguishing
aboriginal title to moot a land claims case.160
B. Federal Trust Responsibility
The federal government has a trust responsibility to federally-recognized Indian tribes that arises from
Indian treaties, statutes, executive orders, and the historical relations between the United States and
Indian tribes. Like other federal agencies, EPA must act in accordance with the trust responsibility when
taking actions that affect tribes.161 While the precise legal contours of the federal trust responsibility
have not been fully defined, one may describe the trust responsibility in terms of its general and specific
components (although the line between these two components is not always clear).
The general component of the trust responsibility relates to the United States' unique legal and political
relationship with federally-recognized Indian tribes. It informs federal policy and provides that the
federal government consult with and consider the interests of the tribes when taking actions that may
affect tribes or their resources. Courts have not required particular procedures, but generally have looked
to see whether federal agencies have sought the views of tribes and considered their interests.
157 E.g., United Slates v. Kagama, 118 U.S. 375 (1886); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
158 417 U.S. 535(1974).
159 448 U.S. 371,413-14(1980).
Archibald Cox, Memo, reprinted in Getches, et al., Federal Indian Law (1994).
Nance v. EPA, 645 F.2d 701, 711 (9th Cir.), cert, denied, Crow Tribe v. EPA, 454 U.S. 1081 (1981).
160
161
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Nontheless, President Clinton, in a 1994 memorandum, directed all federal agencies to assess the impacts
of their plans, projects, programs, and activities on tribal trust resources, assure that tribal rights and
concerns are considered in decision making, and, to the extent practicable and permitted by law, consult
with tribal governments before taking actions that affect them.162 The Supreme Court has noted that the
federal government, as trustee, is "charged with moral obligations of the highest responsibility and
trust."163 The general trust provides one basis for the legal principle that ambiguities or doubts in statutes
must be construed in favor of Indians. Citing the Indian Tribal Justice Act, the Department of Justice
recently noted that the general trust responsibility "includes the protection of the sovereignty of each
tribal government."164
The specific component of the trust responsibility ordinarily arises only from some formal action of the
United States such as a statute, treaty, or executive order. Congress plays the primary role in defining the
trust responsibility. The federal courts often discuss the specific trust responsibility in terms of a
fiduciary relationship that arises when the government assumes such elaborate control over Indian trust
assets that the necessary elements of a common-law trust are present: a trustee (the United States), a
beneficiary (a tribe or an individual Indian), and a trust corpus (timber, lands, funds, etc.).165 It is easy to
envision the trust corpus in situations where Congress has directed a federal agency to manage particular
resources, such as timber or lands, for the benefit of tribes. Applying the trust corpus principle to a
regulatory agency like EPA raises unique issues. Nonetheless, it is clear that EPA must ensure that its
actions are consistent with the protection of tribal rights arising from treaties, statutes, and executive
orders. Further discussion of the specific trust with respect to EPA can be found in the tribal rights
section below.
V. DISTINCTIVE TRIBAL RIGHTS
Indian tribes often have distinctive rights that arise from treaties, statutes, executive orders, agreements,
or as a result of aboriginal title, including rights in land and water, and the right to fish, hunt, and gather.
A number of these rights relate to or depend on environmental protection. Although the following
discussion focuses on treaties and rights arising from treaties, tribal rights—including rights regarding
land, water, fishing, hunting, and gathering—also arise from other legal instruments such as statutes and
executive orders. Much of the analysis below regarding treaties also applies to rights embodied in these
other instruments.
A. Treaties
162 Presidential Memorandum on Government-to-Government Relations with Native American Tribal
Governments 2 (April 29, 1994).
16J Seminole Nation v. United Slates, 316 U.S. 286,296 (1942).
164 Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian
Tribes 4 (June 1, 1995) (quoting 25 U.S.C. § 3601).
165 United States v. Mitchell, 463 U.S. 206,224 (1983).
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Through treaties, Indian Nations ceded certain lands and rights to the United States and reserved certain
lands ("reservations") and rights for themselves. In many treaties (especially those negotiated during the
1850s and 1860s), tribal governments reserved hunting, fishing, and gathering rights in territories beyond
the land that they reserved for occupation. In the Northwest treaties, these were typically called "usual
and accustomed" places.166 Generally, unless changed or abrogated by a subsequent treaty or statute,
treaties are still the supreme law of the land. In 1832, Chief Justice John Marshall said:
The words 'treaty' and 'nation' are words of our language, selected in our diplomatic
and legislative proceedings, by ourselves, having each a definite and well understood
meaning. We have applied them to Indians as we have applied them to other nations of
the earth. They are applied to all in the same sense.167
1. Canons of Treaty Construction
Courts follow certain canons of construction in interpreting treaties and other federal legal instruments
regarding Indians. These principles of interpretation were developed largely to reflect the unequal
bargaining position that Indians held in relation to the United States. Indians were often at a
disadvantage because, for example, negotiations with Indians were generally conducted in foreign
languages, such as English, and the cultural traditions were different, such as the concept of land
ownership. Thus, as a general matter, the Supreme Court has held that ambiguities in treaties are to be
construed liberally to favor Indians.'68 In addition, in construing treaties, the courts have stated that
several other canons of interpretation are to be followed, such as treaties that are to be construed as the
Indians would have understood them at the time of signing; treaty interpretation should rely on promotion
of the treaty's central purpose, not technical rules; and treaties should be read in light of the prevailing
notions of the day and the assumptions of those who drafted them.
Several very important Indian law principles have resulted from these canons of construction. For
example, the courts have held that a number of resource rights, such as water, hunting, and fishing rights,
may be implied from a treaty's purpose, even if the rights were not explicitly mentioned in the treaty. In
addition, these canons have resulted in the principle that Congress must show a "clear and plain" intent in
order to abrogate Indian treaty and other rights. The canons of construction have been extended to apply
to the interpretation of statutes, executive orders, and other instruments of federal law, as well as to the
existence of aboriginal title.
166 E.g., Treaty of Medicine Creek, 10 Stat. 1132 (1855); See Washington v. Washington State Commercial
Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979).
167 Worcester v. Georgia. 31 U.S. (6 Pet.) 515, 559-60 (1832).
168 Eg., Choctaw Nation v. United States, 318 U.S. 423,431-32 (1943).
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2. Continued Validity and Significance of Treaties
Some people unfamiliar with Indian history and Indian law do not acknowledge Indian treaty rights
because they incorrectly believe that a breach or violation of any part of a treaty on the part of the United
States has somehow nullified the treaties. As a general rule, Congress must specifically and directly
repeal a treaty by legislation to invalidate it. Age alone has not invalidated treaties as the "supreme law
of the land."169 In fact, unless abrogated, treaties remain valid documents that have the same force as
federal statutes.
Treaties are very important in understanding the rights of Indian governments and Indian people today.
In Washington v. Passenger Fishing Vessel Association, the United States Supreme Court ruled on the
validity of treaties signed in 1854 with Indians of the Pacific Northwest. In its 1979 decision, the Court
stated: "A treaty, including one between the United States and an Indian tribe, is essentially a contract
between two sovereign nations."170 The Court also affirmed general principles about treaties and
recognized that, through treaties, Indian Nations granted certain rights to the United States and reserved
land and rights for themselves.
Treaties are significant to all tribes, even to those tribes that did not enter into treaty relations with the
federal government, for several reasons. First, treaties established a pattern of legal and political
interaction based on negotiation between two sovereigns. Second, treaties form the foundation of federal
Indian law affecting all tribal governments. Finally, even though some tribes did not formally enter into
a treaty with the federal government, subsequent dealings through executive orders or legislation
generally have been based on a series of consultations and negotiations between a tribe and the federal
government, similar to the treaty process.
B. Land Rights
Indian tribes and individual Indians have rights in land that were established and are held in varying
ways. The term "Indian lands" generally refers to "those lands that are held by Indians or tribes under
some restriction or with some attribute peculiar to the Indian status of its legal or beneficial owners."171
C. Fishing, Hunting, and Gathering Rights
In number of Indian treaties, tribes explicitly reserved rights pertaining to the environment, including
rights to fish, hunt, and gather. Some treaties explicitly reserve such rights within Indian reservations. In
several cases, particularly in the Pacific Northwest and the Great Lakes regions, tribes not only reserved
such rights within reservation areas, but also retained rights in ceded territories that were their "usual and
accustomed" hunting, fishing, or gathering places.
169 United Slates v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).
170 443U.S.658,675.
171 See generally William Canby, American Indian Law 256 (2d. ed. 1988).
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Some treaties do not contain any explicit reservation of hunting, fishing, or gathering rights.
Nonetheless, courts have held that treaties carry those rights necessary to realize the primary purposes of
the treaty.172 This principle is well-established in the context of reserving sufficient water rights to meet
a tribe's present and future irrigation needs.173 It may also encompass the purity of the water supplied for
irrigation.174 Courts have also found implicit rights in treaties and statutes pertaining to fisheries and
subsistence hunting.175
An important question is whether fishing and hunting rights include rights to a sustainable natural
environment upon which fish and game depend.176 Since rights necessary to the primary purpose of a
treaty may be implied, another important question is whether treaties generally reserve rights to
environmental quality since almost all treaties were designed to reserve a permanent homeland for tribes.
These questions are particularly relevant to EPA's programs.
Federal, state, and local agencies need to refrain from taking actions that are not consistent with tribal
rights wherever they exist, whether within Indian country or in ceded areas. A tribe's right to fish, hunt,
or gather, within or outside Indian country, is generally not subject to state regulation. However, a state
may impose restrictions if they are reasonable and necessary conservation measures and the application
of the restrictions to Indians is necessary in the interests of conservation.177
D. Water Quantity Rights
Indian tribes often have rights to a quantity of water under the Winters doctrine. In Winters v. United
States, the Supreme Court held that the 1888 agreement establishing the Fort Belknap Reservation in
Montana implicitly reserved the right to use the waters of the Milk River.178 While the agreement
described one boundary of the reservation as being the middle of the Milk River, it made no mention of
the rights to use the water. After the agreement was signed, non-Indian settlers upstream from the
172 E.g., Winters v. United States, 207 U.S. 564, 576-77 (1908).
173 E.g., Arizona v. California, 373 U.S. 547, 600 (1963).
174 United States v. Gila Valley Irrigation District, 920 F.Supp. 1444 (D.Ariz. 1996), affd, adopted, 117 F.3d
425 (9th Cir. 1997).
175 E.g., Parravano v. Masten, 70 F.3d 539, 546 (9th Cir. 1995), cert, denied, Parravano v. Babbitt, 518 U.S.
1016(1996).
176 In United States v. Washington, 506 F.Supp. 187, 205 (W.D. Wash. 1980), the court found that "it is
necessary to recognize an implied environmental right in order to fulfill the purposes of the fishing clause" of the
treaty at issue. However, this decision was reversed by the Ninth Circuit Court of Appeals on procedural grounds.
United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en bane).
177 Antoine v. Washington, 420 U.S. 194, 207 (1975).
178 207 U.S. 564 (1908).
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reservation built dams that diverted the flow of the river and interfered with agricultural uses by the
Indians. The United States brought suit on behalf of itself and the affected Indians to enjoin the upstream
users from diverting the water. Although the 1888 agreement made no mention of water rights, the
Supreme Court found that the parties implied the right of a sufficient quantity of water to irrigate the arid
Reservation land, because without water, the purpose of the agreement would be frustrated. The tribes of
the Fort Belknap reservation, by reserving lands for farming and pastoral purposes, had implicitly
reserved waters necessary to make those uses possible in the 1888 agreement.
The Winters doctrine applies to Indian country areas whether created by treaty, agreement, executive
order, statute or order of the Secretary of the Interior.179 The doctrine has been held to apply to
groundwater as well as surface water.180 In addition, the Winters doctrine may include the protection of a
degree of water quality as well as water quantity.181
179 Cohen, supra note 70, at 579.
180 Cappaert v. United States, 426 U.S. 128 (1976).
181 See United States v. Anderson, 591 F. Supp. 1,5 (E.D. Wash. 1982) (retention of the right to water for a
fishery includes the maintenance of a proper water temperature to sustain the fishery); Cohen, supra note 70 at 587.
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CHAPTER THREE: EPA's APPROACH TO
ENVIRONMENTAL PROTECTION IN INDIAN COUNTRY
I. INTRODUCTION
The mission of the United States Environmental Protection Agency (EPA) is to protect human health and
to safeguard the natural environment—air, water, and land—upon which life depends. From its origin,
EPA has lead the nation in controlling pollution and other environmental risks. As a result of EPA
actions, it can be said that our air, land and water are now much safer and cleaner than 25 years ago
despite population increases and continued economic expansion.
Although this substantial progress has been made, there are still many human health and environmental
challenges that cannot be met with traditional media-specific "command and control" approaches. For
example, it has been posited that children, Native American tribal communities, and other minority
populations and low-income populations suffer disproportionately from adverse health effects caused by
some environmental conditions. Until very recently, there has not been a fully concerted effort to do
environmental work in Indian country. To address these specific needs, EPA has created a number of
innovative multimedia programs that rely on the active participation of the affected communities to
reduce human health and environmental risks in the most effective manner.'82
One of these programs is the EPA Indian Program. It involves significant intra-Agency and multimedia
activities designed to ensure protection of human health and the tribal environment, in a manner
consistent with EPA's trust responsibility to federally-recognized tribes, the govemment-to-govemment
relationship, and the conservation of cultural uses of natural resources.
A. The Importance of the Indian Program
The responsibilities of the Indian Program include protecting the health of millions of Indians and non-
Indians residing in Indian country, addressing the environmental needs of 562 tribal nations, and
safeguarding the natural environment.183 EPA's role is critical. Native Americans have the worst health
statistics in the country, and environmental mitigation in tribal communities is significantly behind that
of non-tribal communities. It is imperative that EPA enhance its partnership with the tribes and work
with tribes to identify and achieve environmental goals.184
182 U.S. Environmental Protection Agency, EPA Strategic Plan 7, 80 (1997).
183 Department of Interior, Bureau of Indian Affairs, Indian Entities Recognized and Eligible to receive
services from the United States Bureau of Indian Affairs, 62 FR 55270 (1997).
184 Id. at 85-86.
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B. Objectives of the Indian Program
In 1984, EPA became the first federal agency to adopt a formal Indian policy. When the policy was
reaffirmed in 1994, an action agenda was established for enhancing and strengthening tribal operations.
A key element was a commitment to fully institutionalize the policy into Agency activities. The
American Indian Environmental Office (AIEO) was established and the Tribal Operations Committee
(TOC) was formed to help EPA identify Indian environmental priorities and issues for discussion and
resolution on how EPA can improve its program delivery and implementation. Through this ongoing
dialogue, key objectives for program implementation have evolved. As an Agency, we want to:
• achieve adequate environmental infrastructure throughout Indian country;
• complete Tribal and EPA Environmental Agreements (TEAs) with every Tribe. These
agreements would contain a tribal environmental conditions baseline assessment, tribal
environmental priorities, and joint commitments to achieve these priorities;
• implement fully the 1984 EPA Indian policy;
• increase significantly the number of tribes implementing environmental programs;
• build capacity and adequate internal mechanisms to help tribes implement environmental
programs that meet the needs established in tribal baseline assessments and, in the
absence of tribal implementation, establish means for EPA implementation; and
• establish a mechanism, in partnership with tribal and state governments, to resolve
transboundary issues.185
C. How To Accomplish Objectives
These objectives can be met through a combination of actions including:
• increased tribal capacity-building efforts;
• greater implementation of environmental programs within Indian country;
• expanded education for EPA employees regarding tribal environmental issues;
• increased technical assistance and training for tribal environmental program managers;
• continued intra-agency, multimedia coordination of Indian program activities by the
American Indian Environmental Office and others; and
• improved coordination with tribes to achieve environmental goals and priorities
identified by tribal governments in tribal and EPA environmental agreements;
• to the extent possible and as aggressively as possible, increase resource investments in
environmental management.186
Although accomplishing successful environmental management in Indian country is not easy, the Agency
has found ways to make it happen over time. These ways are described in more detail in the remainder of
this chapter. Program policies, implementation methods, and the organizational infrastructure developed
185 W.at86.
.86
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to implement tribal programs are discussed. Also, because environmental protection in Indian country
often requires the assistance and cooperation of other federal agencies, some key agencies involved in
this field are described.
II. FEDERAL AND EPA POLICIES
A number of executive orders and policies provide strong guidance to federal agencies on how they are
to consult with and consider tribal interests when taking actions. An illustrative selection of the most
relevant policies and executive orders is discussed below. Copies of the full text can be found in the
appendix.
A. Executive Order on Consultation and Coordination with Indian
Tribal Governments
On May 14,1998, President Clinton issued Executive Order 13084 entitled "Consultation and
Coordination with Indian Tribal Governments." The effective date of Order 13084 is August 12,1998.
It is intended to supplement but not supersede President Clinton's Executive Memorandum of April
29,1994 on "Government-to-Government Relations with Native American Tribal Governments."
Executive Order 13084 directs federal agencies to do a variety of things, some of which are listed below.
• In formulating policies significantly or uniquely affecting Indian tribal governments,
agencies should be guided to the extent permitted by law, by principles of respect for
tribal self-government and sovereignty, treaty and other rights, and for responsibilities
arising out of the federal government's unique relationship with tribal governments.
• There shall be effective processes to permit tribal governments to provide meaningful
and timely input in the development of regulatory policies affecting tribal communities.
• Agencies should prevent the promulgation of regulations that impose substantial direct
compliance costs on tribal governments, unless certain exceptions apply.
• Where possible, agencies should streamline waiver processes of statutory or regulatory
requirements with a view toward increasing opportunities for tribal governments.
• In issues relating to tribal self-government, trust resources, or treaty and other rights,
agencies should explore and where appropriate, use consensual mechanisms for
developing regulations.
The above summary is only a very broad summary. The Executive Order, which is included in the
appendix should be read thoroughly.
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B. Presidential Memorandum on Government-to-Government
Relations With Native American Tribal Governments
On April 29,1994, President Clinton issued a memorandum to the heads of all executive departments and
agencies of the federal government regarding government-to-government relations with Native American
Tribal governments. This memorandum states that executive department and agency activities affecting
tribal rights or trust resources should be implemented in "a knowledgeable, sensitive manner respectful
of tribal sovereignty." This memorandum further provides that Executive Branch activities shall be
guided by several principles. The memorandum provides that executive departments and agencies shall:
• operate within a govemment-to-govemment relationship with federally-recognized
Indian tribes;
• consult, to the greatest extent practicable and to the extent permitted by law, with Indian
tribal governments before taking actions that affect federally-recognized tribes;
• assess the impact of executive department and agency activities on tribal trust resources
and assure that tribal rights and concerns are considered during the development of such
activities;
• take appropriate steps to remove procedural impediments to working directly and
effectively with tribal governments on activities that affect the trust responsibility and/or
governmental rights of tribes;
• work cooperatively with other federal departments and agencies, where appropriate, to
accomplish these goals established by the President; and
• apply the requirements of Executive Orders Nos. 12875 ("Enhancing the
Intergovernmental Partnership") and 12866 ("Regulatory Planning and Review"),
tailoring federal programs in appropriate circumstances to address the unique needs of
tribal communities.
C. EPA Indian Policy
This policy was first issued by EPA in 1984 and has since been reaffirmed by every subsequent Agency
Administrator, including Carol Browner in March 1994. The policy is intended to provide guidance to
EPA staff and managers in dealing with tribal governments and in responding to the problems of
environmental management on Indian reservations in order to protect tribal health and environments. In
carrying out EPA programs, the policy establishes nine principles.
1) The Agency stands ready to work directly with Indian Tribal governments on a one-to-
one basis (die "govemment-to-govemment" relationship), rather than as subdivisions of
other governments.
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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.
3) The Agency will take affirmative steps to encourage and help tribes assume regulatory
and program management responsibilities for reservation lands.
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.
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.
6) The Agency will encourage cooperation between tribal, state, and local governments to
resolve environmental problems of mutual concern.
7) The Agency will work with other federal agencies that have related responsibilities on
Indian reservations to enlist their interest and support in cooperative efforts to help tribes
assume environmental program responsibilities for reservations.
8) The Agency will strive to assure compliance with environmental statutes and regulations
on Indian reservations.
9) The Agency will incorporate these Indian policy goals into its planning and management
activities, including its budget, operating guidance, legislative initiatives, management
accountability system and ongoing policy and regulation development processes.
This policy was accompanied by an implementation guidance that established the National Indian Work
Group consisting of Indian coordinators to be appointed in each of the Headquarters program offices and
Regional offices. In addition, the guidance formally placed responsibility for the implementation of
tribal environmental programs in three EPA Offices where it remained until the establishment of the
American Indian Environmental Office in October 1994.
D. Other Policies and Guidance
1. Executive Order and Memorandum on Environmental Justice
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations, and its accompanying memorandum were issued in February 1994. The
Executive Order is designed to focus federal attention on the environmental and human health conditions
in minority communities and low-income communities and to promote nondiscrimination in federal
programs substantially affecting human health and the environment. Specifically, section 6-606 of the
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Order states that "each Federal agency responsibility set forth under this order shall apply equally to
Native American programs." The Order also specifically addresses subsistence consumption of fish and
wildlife. The accompanying memorandum identifies the need for federal agencies to consider
environmental justice implications when taking actions subject to the National Environmental Policy Act.
The memorandum also directs EPA, in its environmental reviews under section 309 of the Clean Air Act
(CAA), to ensure that agencies fully consider environmental effects on minority communities and low-
income communities, including those on tribal communities.
EPA has cited these presidential directives in its reviews of environmental effects of proposed actions of
other federal agencies under National Environmental Policy Act (NEPA) and section 309 of the CAA.
2. Executive Order on Sacred Sites
Executive Order 13007 was issued in May 1996 to encourage land management agencies to (1)
accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2)
avoid adversely affecting the physical integrity of such sacred sites. The Order applies to federally-
owned lands, except "Indian Trust lands." This Order reflects the federal government's continuing
commitment to the religious freedom of all Americans. The Order complements the procedures required
by the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation
Act, the Archaeological Resources Protection Act, the National Historic Preservation Act and the
Presidential Directive of 1994, requiring Executive Branch departments and agencies to accommodate, as
appropriate, the need for eagle feathers in the practice of American Indian religion.
3. Federal, Tribal, and State Roles in the Protection and Regulation of
Reservation Environments (Concept Paper)
Administrator William Reilly endorsed this concept paper in a July 1991 memorandum to EPA
managers. This paper was designed to formalize EPA's role in strengthening tribal governments'
management of environmental programs. At that time, like today, the Agency was under pressure from
some states to approve state programs on portions of Indian reservations. The paper expresses the
objective of providing for coherent and consistent environmental regulation in reservations by avoiding
checkerboarding of regulatory programs on Indian reservations. The paper also recognizes that
differences between the interests of tribal and state governments can be sensitive and sometimes extend
well beyond the specific issues of environmental protection. Thus, the paper also directs EPA staff to
promote cooperative approaches to environmental problems that involve both tribes and states. The
principles behind the approaches are administrative clarity in the operation of regulatory programs,
effective and efficient environmental management, and the support of tribal self-determination.
4. Tribal Operations Action Memorandum
AIEO is only one component of the Agency's effort to strengthen the public health and environmental
protection in Indian country and to improve EPA's government-to-govemment partnership with tribes. In
July 1994, Administrator Browner issued a memorandum outlining steps for prompt implementation
throughout the Agency. The action items are as follows:
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• establish Tribal-EPA Environmental Agreements (TEAs);
• establish program and regional work plans based on TEAs;
• implement management and compliance activities;
• review program and regional Indian program organization and—where necessary—
modify the organization to strengthen tribal operations;
• ensure that an effective EPA-tribal liaison capacity exists to provide direct field
assistance to tribes;
• provide training to EPA management and staff on how to work effectively with tribal
governments;
• enhance communications with tribes;
• use available discretion to consolidate issuance and administrative requirements of
grants; and
• invest resources into tribal operations.
Please see the attached copy of the July 1994 Action Memorandum for more detail on each of the
Administrator's priorities for the Agency's Indian Program.
5. EPA Environmental Justice Strategy
EPA issued this strategy in April 1995 in response to Executive Order 12898 on environmental justice.
Among other actions, the strategy specifically addresses environmental protection of American Indians,
Alaska Natives, and other Indigenous populations. Many of the initiatives outlined in the strategy are
steps towards achieving more public participation and environmental protection for American Indians
and other indigenous communities. The strategy calls on the Agency to continue to work to protect and
improve tribal health and environmental conditions by "providing outreach, education, training, and
technical, financial, and legal assistance to develop, implement, and maintain comprehensive tribal
environmental programs." The strategy also states that when the Agency is conducting "human health
and environmental research and other activities involving Tribal and Indigenous environments and
activities [the Agency is to] take into account cultural use of natural resources."
6. EPA Regional Policies for Environmental Protection in Indian Country
EPA Region 8 issued a policy in March 1996 to provide detailed guidance and information to the
region's managers and staff on how to implement EPA's Indian policy. This guidance is intended to
respond to and clarify questions that are most frequently raised by both internal and external Region 8
customers and constituents, relating to 1) regional protocol in working with federally-recognized tribes;
2) regional support of federally-recognized tribal governments in building capacity to manage
environmental programs; and 3) regional positions on environmental program responsibilities and
jurisdiction. Several other regions have developed or are developing their own written policies.
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7. Memorandum of Understanding Between the Bureau of Indian Affairs, the
Environmental Protection Agency, the Department of Housing and Urban
Development, and the Indian Health Service
The Bureau of Indian Affairs, the Environmental Protection Agency, the Department of Housing and
Urban Development, and the Indian Health Service entered into a Memorandum of Understanding
(MOU) in June 1991. The MOU recognizes that each of the agencies has responsibilities and interests
pertaining to the protection of human health and the environment as it relates to pollution control on
Indian lands. The purpose of the MOU is to identify areas of mutual interest and responsibility of the
four agencies and to encourage the coordination of the agencies' activities to promote the most efficient
and integrated use of resources.
8. Enforcement
The EPA has a long-standing Indian policy that its relationship with tribal governments shall be
govemment-to-govemment. When implementing the enforcement and compliance assurance program,
the Regions should make every effort to notify the tribal government before visits to Indian country. In
addition, the enforcement personnel should inform the tribal government of the results of the visit or any
planned enforcement actions. If advance notice is not given (circumstances beyond the control of EPA
staff or an unannounced inspection), the tribal government should be contacted as soon as possible.
Within the Regional office, the enforcement personnel should inform the assigned Regional Tribal
Coordinator of planned activities and any planned enforcement actions.
EPA should make every effort to pursue enforcement and compliance activities in a timely and effective
manner that is consistent with EPA's Indian policies. Regional agreements with Indian tribes, and EPA's
enforcement policy. By following these policies, the Regions can ensure they respect the tribes' rights to
self-government and that they safeguard EPA's enforcement discretion and information. For facilities
owned or managed by the tribal government, EPA will work cooperatively with the tribal government to
help the facility return to compliance. The Regional enforcement program wishing to proceed with an
enforcement action should consult with the tribal coordinator, the tribal Office, Office of Regional
Counsel, and obtain the concurrence of the Assistant Administrator for the Office of Enforcement and
Compliance Assurance.
For questions of potential liability of a tribal government or specific statutory requirements or roles the
regions should consult with the Office of Regional Counsel. The Office of Regional Counsel also should
coordinate with the Office of General Counsel on these issues.
9. Protocol for EPA Interactions With Tribes
There is not one set of rules that can guide EPA management and staff to successful interactions with
tribes. Rather, there are general considerations that should be reviewed before communicating with
tribes and visiting Indian country. Each of the Regional offices and various offices within the Agency
may wish to establish guidelines on protocol. These guidelines could cover such items as who should
call the tribal chair person, who should be contacted at a reservation before an EPA representative visits,
who should sign correspondence with a tribe, and how tribal-EPA meetings should be conducted. For an
example of a Regional protocol guideline, please see the attached Region 8 Policy.
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Individual tribes are unique and differ in leadership and in the governmental and economic infrastructure.
It is most important for EPA employees to approach all tribes with respect and sincerity about forging a
relationship.
EPA staff who work with tribes on a regular basis have offered the following reflections on their
experiences interacting with tribes:
• Tribes often have two tiers of government (legal/political and traditional). In other
words, the titular head is not always the decision-maker. It is important for EPA
personnel to learn the system of government used within a specific tribe before making
initial contact.
• Indian people have been hurt by government initiatives so many times before that they
are often skeptical of new proposals. Relationship building, education, and time are
needed to overcome this.
• EPA has its own culture that can impede communication when others don't understand
the vocabulary, the philosophy, and/or the methods.
• It is important to remember that environmental protection issues are not the only areas of
concern tribal governmental leaders face. Most tribal governments deal with significant
unemployment, education, health, welfare, jurisdictional, and other issues. Additionally,
keep in mind that in many instances, tribal governments are understaffed and have
limited resources.
• Indian leaders (particularly tribal chairpersons, chiefs, governors, presidents) are
extremely concerned about the lives of their people on a micro level. It is not uncommon
for a leader to sit by the bedside of a terminally sick member and interact with members
on a family or individual level. This concern often results in differences between tribal,
state, and federal standards regarding government-approved risk. While EPA may find
1/1,000,000 is an acceptable risk, to Indian people, each member of a small tribe is
vitally important and therefore, the tribe may find the EPA risk standard unacceptable.
Interactions with tribes should be guided by the President's Executive Memorandum, the EPA Indian
Policy and the President's 1998 Executive Order.
III. PROGRAM IMPLEMENTATION
EPA works on a govemment-to-government basis with federally-recognized tribes, but in some instances
may provide funding and technical assistance to non-federally-recognized tribes through the
Environmental Justice program, and certain other programs (e.g., the Superfund technical assistance
grant program, CWA section 104 grant program).
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Some general principles for implementing EPA's program in Indian country are listed below.
• EPA has been delegated authority by Congress to ensure that environmental programs
designed to protect human health and the environment are carried out across the United
States.
• Tribes may apply for approval to implement many of the federal environmental
programs.
• Consistent with federal law, tribal governments generally have regulatory authority over
environmental quality within their own territory.
• Generally, in the absence of an EPA-approved tribal program in Indian country, EPA
will directly implement federal environmental statutes.
• EPA acts consistent with its federal trust responsibility in implementing federal
environmental statutes.
There are four important components in implementing environmental programs in Indian country under
EPA's statutes—building capability, authorizing of tribal programs, directly implementing programs by
EPA, and taking cooperative approaches to implementation.
A. Building Capability
EPA's Indian policy states that "[t]he Agency will take affirmative steps to encourage and assist tribes in
assuming regulatory and program management responsibilities for reservation lands." The first step is to
help tribal nations build their own capability to manage environmental programs. Capability building,
sometimes referred to as "capacity building," entails providing tribes with financial assistance,
information, and technical assistance to establish the necessary tribal administrative infrastructure to
institute environmental programs. In addition, capability building includes building the capacity of EPA
through training, information gathering, and financial resources to assist and better work with tribes in
implementing environmental programs in Indian country.
1. Financial Assistance
A significant source for building capability is through grants provided under the Indian Environmental
General Assistance Program (GAP) Act. The objectives of the GAP Act are to provide funds to
federally-recognized tribal governments to build capacity to administer environmental programs and to
provide technical assistance from EPA in the development of multimedia programs. Capability- building
activities eligible for funding under GAP include planning, hiring staff, monitoring, and assessing
environmental resources and pollution threats. GAP provides tribes with an opportunity to build a core
environmental program and prioritize environmental problems.
Many EPA program-specific grants also help to build tribal environmental capability and can be used in
concert with GAP grants to establish an integrated tribal environmental program. As discussed below, in
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order for tribes to receive certain grants, tribes must include information with their grant application
establishing their eligibility for "Treatment in the same manner as a State" (TAS) under the specified
statutory and regulatory criteria.
Another important tool is the Performance Partnership Grant (PPG). A PPG is a multiprogram grant to a
tribal or State agency by EPA from funds allocated and otherwise available for categorical grant
programs. PPGs provide tribes and states with the option to combine funds from two or more specified
categorical grants into one or more PPG. The purpose of PPGs are to allow tribes and states to have the
flexibility to address their highest environmental priorities across all media and establish resource
allocations based on those priorities, while continuing to address core environmental program
commitments. PPGs are also intended to help grant recipients and EPA to reduce administrative burdens
and costs by greatly reducing the numbers of grant applications, budgets, workplans, and reports.
PPGs, in conjunction with the tribal-EPA Environmental Agreements (TEA) and the GAP, should allow
tribes additional flexibility in developing and implementing their environmental programs according to
tribal needs and priorities. Tribes may include GAP funds in a PPG. In order to maximize the available
flexibility under a PPG, tribes must develop a plan that specifies how program funds will be reallocated
and what environmental outcomes are expected from the expenditure of those funds. The Agency has
issued interim guidance on PPGs for state and tribal environmental programs and is developing new
regulations for PPGs and the administration of continuing environmental programs to take into account
the new flexibility offered by the PPGs.
2. Technical Assistance
In addition to grants, EPA also provides technical assistance to tribes to help them develop and
implement their environmental programs. This assistance can be found across most EPA programs with
activities in Indian country. EPA has hosted training sessions for tribal environmental staff on major
environmental statutes, regulations, permit writing, grant application preparation, and compliance
requirements. To assist young environmental professionals, EPA has supported Native American
internship programs. Technical support and development of technical capability can also be
accomplished through Inter-Personnel Assignments. This helps to provide participants with an
understanding of EPA programs, policies, and technical resources.
EPA also provides technical assistance to tribes in the form of information sharing. Agency guidance
documents and technical resource information are made available to tribal environmental staff to support
their technical needs. EPA also conducts and hosts workshops, conferences, and seminars nationally
with tribal organizations. These national events provide an excellent forum to resolve technical issues,
identify project support needs, report on success stories, and to exchange pertinent environmental
program information and concerns.
Another important resource EPA provides to tribes in Indian country is direct on-site technical support.
EPA program staff have provided assistance to tribal environmental offices in the field on the design,
construction, and compliance features required for solid waste landfills, underground storage tanks,
wastewater treatment systems, in addition to guidance on recycling programs and air quality
management.
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3. Information
Tribal-EPA Environmental Agreements. To build EPA's Indian program in a manner consistent with
tribal environmental priorities and EPA's statutory responsibilities, AEEO is working with the regional
offices as they develop TEAs. As designed by EPA in consultation with tribal leaders and environmental
directors, TEAs describe the past and current condition of a tribe's environment, and the Tribe's long-
range environmental goals and near-term priorities for EPA assistance. These agreements are intended to
help the Tribes and EPA develop multiyear plans for tribal assumption of environmental programs and
EPA direct implementation of environmental programs in Indian country. The Administrator's July 1994
Action Plan for the EPA Indian Program makes TEAs the cornerstone on which Regions and National
Program Managers are to build their Indian programs. TEAs and other similar agreements may take on
added importance when used in context with PPG grants.
On March 20,1995, AIEO issued a template providing guidance on developing TEAs for the Regions
and tribes. The guiding principles identified in this template are listed below.
• As these agreements are developed, all principles included in EPA's Indian policy shall
apply. This includes recognition of a trust responsibility, govemment-to-government
relationship, and tribal sovereignty.
• The government-to-government relationship shall be directly between the Agency and a
specific tribe.
• The Agreement shall be implemented to promote stability in funding, employment,
capacity building, infrastructure development, and other such factors that lead to long-
term program implementation for the tribes.
• These agreements are being developed with the understanding that the long-term goal is
to address, implement, and maintain—where deemed necessary by the Tribe—the full
range of EPA's programs to protect public health and the environment.
• While implementing the agreement, the Agency is committed to ongoing, timely, and
open communications with the Tribe. AH efforts will be made to provide timely advice
on available grants and other sources of funding, training, and ongoing meetings that
affect tribes. This also includes a timely transfer of state-of-the-art technology, such as
computers and data systems, as the tribes seek to build capacity.
• The agreements are intended to promote flexibility while addressing the needs of the
tribe and can be revisited as appropriate to ensure common sense approaches.
• The principles of environmental justice shall apply to these agreements. In general these
principles call for the Agency to ensure that tribes are afforded all opportunities afforded
to states, including procedures for tribal participation in the Agency decision-making
process. In addition, environmental justice principles call for a recognition of tribal
cultural concerns such as subsistence needs and traditional uses of natural resources.
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The importance of the TEAs cannot be overstated. They recognize EPA's relationships with each tribe
individually, and thus are helpful planning tools for both the tribes and EPA. The TEAs are examples of
EPA's commitment to using community-based approaches to environmental protection.
Baseline Assessment Project. To establish a national picture of environmental conditions in Indian
country, ABEO initiated a national environmental baseline assessment project. The purpose of the
Baseline Assessment of Indian country is to assemble, in an easy to use and accessible format, the
environment data identified as most important to support sound environmental planning and
management, both for the tribes and for EPA. The major tasks of the workgroups are to 1) identify and
summarize information we already know (or have collected) about environmental conditions in Indian
country from tribes, EPA, Federal Government, and other sources; 2) determine what information is most
important to know about environmental conditions in Indian country to support multimedia assessment
and to support planning and management decisions; 3) design and implement a data management system
to meet those information needs; and 4) design and implement a system to collect data that are important
enough to expend limited EPA and tribal resources.
The EPA baseline assessment workgroup has completed an initial screening level inventory of existing
data on environmental conditions in Indian country. Additionally, the EPA program offices identified 36
key and priority data sets that would help both EPA and tribes track the development of environmental
management activities. AIEO is now moving to accumulate information for the 36 key priority data sets
from EPA program offices, the EPA Regions, and other federal agencies.
Internal EPA Training. In a memorandum issued by Administrator Carol Browner, dated July 14,
1994, titled "Announcements of Actions for Strengthening EPA's Tribal Program", senior EPA officials
were directed to develop a national training program for all staff and managers working in EPA's tribal
environmental programs. The purpose of this training is to provide EPA employees with the necessary
tools, knowledge, and understanding of Indian Affairs. Over the past several years, EPA's tribal program
coordinators and managers have been conducting training sessions for program personnel titled,
"Working Effectively with Tribal Governments." As part of this national initiative, EPA's American
Indian Environmental Office conducted a 3-day national train-the-trainer session for EPA's Indian
Program coordinators. New materials will provide EPA staff with a current understanding of tribal
history and culture, federal Indian law, and EPA's Indian Policy, initiatives, and environmental
programs. The training initiative is on-going, and program offices are strongly encouraged to initiate
sustained efforts to assure workers are fully knowledgeable so they can effectively work with Indian
tribes.
B. Tribal Assumption of Federal Environmental Programs
In EPA's 1984 Indian Policy, the Agency announced its support for tribal assumption of environmental
programs under federal statutes, stating, among other things, that:
the Agency will recognize tribal governments as the primary parties for setting standards,
making environmental policy decisions, and managing programs for reservations,
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consistent with Agency standards and regulations; and
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• as impediments in our procedures, regulations, or statutes are identified that limit our
ability to work effectively with tribes consistent with this Policy, we will seek to remove
those impediments.
The Agency has made great strides in implementing these goals. Since 1984, EPA has worked
successfully to have provisions added to three environmental statutes—the Safe Drinking Water Act
(SDWA), the Clean Water Act (CWA), and the Clean Air Act (CAA)—explicitly authorizing the Agency
to treat tribes in the same manner as states for purposes of implementing various environmental
programs. In addition, EPA has worked to amend the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) to explicitly include a provision that affords tribes
substantially the same treatment as states with respect to certain provisions of the Act. EPA also worked
to amend the Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) to provide for a role for tribes.
Furthermore, under several statutes that have not been amended to explicitly allow for tribal programs
(e.g., the Toxic Substances Control Act (TSCA), and the Emergency Planning and Community Right-to-
Know Act (EPCRA), the Agency has taken the position that it has the discretion to approve tribes to
implement certain programs in the same manner as states in order to fill a gap in how the statutes are
implemented in Indian country.
As tribes move to develop enforceable environmental protection programs within Indian country, they
typically undertake the following steps:
• establish the necessary regulatory framework by passing tribal environmental codes;
• draft the necessary regulations; and
• establish a body, if one does not already exist, that can ultimately seek tribal
administrative or judicial sanctions to enforce the tribal law.
As of May, 1998, EPA has made 201 "treatment in the same manner as a State" determinations for 129
tribes, most of which involved findings that tribes are eligible for grants under the CWA and the SDWA.
EPA has determined 21 tribes to be eligible to set water quality standards for surface waters within the
boundaries of their reservations under the CWA. Several tribes have also submitted applications for
programs to regulate public drinking water systems, underground injections of waste material, and point
source discharges into surface waters. In addition, approximately 20 tribes operate pesticide certification
or enforcement programs under cooperative agreements with EPA authorized by (FIFRA).
1. Congressional Authorization for Approval of Tribal Programs Under
Environmental Statutes
EPA statutes that specifically allow for EPA authorization of tribal programs or a substantial role for
Tribes are:
• Federal Insecticide, Fungicide, and Rodenticide Act (1978).
Safe Drinking Water Act (1986);
• Comprehensive Environmental Recovery, Compensation, and Liability Act (1986);
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Clean Water Act (1987);
Clean Air Act (1990);
In addition, in several instances, EPA has reasoned that even though Congress has not specifically
provided for tribal assumption of environmental programs in legislation, the Agency has the discretion to
allow for tribal programs. Two statutes, where the opportunity to apply for environmental programs has
been extended to Indian tribes by this method are:
• Toxic Substances Control Act; and
• Emergency Planning and Community Right-to-Know Act.
EPA also attempted to extend this opportunity to tribes under RCRA. However, on October 26, 1996,
the U.S. Court of Appeals for the D.C. Circuit in Backcountry Against Dumps v. EPA held that EPA does
not have authority to review and determine the adequacy of a tribal solid waste landfill permitting
program under Subtitle D of RCRA.187 The court rejected EPA's argument that section 4005(c)(l)(C) of
RCRA, which requires EPA to review and determine the adequacy of state permitting programs, could be
interpreted to authorize review of tribal permitting programs. The court rejected EPA's argument that
the statute is ambiguous and found that EPA's interpretation was in conflict with the plain language of
the statute. Specifically, the court accepted petitioner's argument that the inclusion of Indian tribes
within the definition of "municipality" and the exclusion of Indian tribes from the definition of "State"
precluded EPA's interpretation of section 4005(c)(l)(C) as enabling authorization of tribal programs.
Importantly, the court noted that, if RCRA had been silent as to tribes, the statute would have been
ambiguous and EPA might have been authorized to review and approve tribal programs (if EPA could
demonstrate that such an approach was reasonable in light of the statute's purposes). Thus, EPA believes
it still has the authority to review and approve tribal programs under certain statutes that are silent with
respect to tribes (e.g., the lead program under TSCA).
2. Tribal-Specific Eligibility Criteria
For tribes to assume many of EPA's major grant or regulatory programs, they generally must go through
a process called 'Treatment in the Same Manner as a State" (TAS).188 TAS was first put into place
through the 1986 and 1987 amendments to SDWA and CWA. These amendments called on the Agency
to develop a process by which tribes could apply for grants and program authority. EPA established a
TAS process for eligibility under various programs according to the criteria identified in SDWA and
CWA. In 1990, Congress also included TAS provisions in the Clean Air Act Amendments. Generally
the criteria are as follows:
187
100 F. 3d 147(D.C.Cir. 1996).
188 The General Assistance Program and certain other grant programs (e.g., grants under CWA § 104) do not
require tribes to go through this process.
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• the tribe must be federally-recognized;
• the tribe must have or be able to exercise substantial governmental powers;
• the tribe must have or have been delegated jurisdiction over the area in question; and
• the tribe must be reasonably expected to have the financial, physical, and human
resource capability to effectively implement a program.
In the initial years after establishing the TAS process, many tribes and EPA staff found the process to be
overly burdensome. EPA has increasingly improved its own capacity to help tribes meet those eligibility
requirements, and, in 1994, EPA developed the 'TAS Simplification Rule."189 Under this rule, EPA
eliminated the need to meet all four criteria each time a tribe applies for a program. In general, once a
tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and
capability for each subsequent program. If a tribe does not have capability, it must have a plan for
acquiring capability over time. This is required because each program may require different skills and
activities to provide protection that meets the requirements of specific statutes and regulations.
"Treatment-as-States", the original term for the process, was changed to Treatment in the Same Manner
as a State" in response to tribes objecting to the original phrase. Many tribes commented that they are
not "States"; rather, they have a unique relationship with the United States Government. (The revised
TAS regulations have been included for your reference.)
2. Tribal Jurisdiction
Perhaps most important of the tribal-specific eligibility criteria is whether the functions to be exercised
by a tribe are within the applicant tribe's jurisdiction. EPA asks tribes that are applying for regulatory
programs to demonstrate in their applications that they have adequate jurisdiction over the areas to be
regulated. Demonstrating jurisdiction over trust lands or lands owned by a tribe is usually relatively
simple and uncontroversial. Tribes almost invariably have inherent sovereign authority to regulate both
their members and their territory (although specific statutes may have affected this general principle for
some tribes).
A more complex and controversial issue is whether a particular tribe has jurisdiction over nonmember
activities on nonmember-owned fee lands within the boundaries of an Indian reservation. Jurisdiction
over nonmember activities on fee lands may come from two potential sources: a tribe may have inherent
authority over these activities; or Congress may, by statute, delegate federal authority to a tribe.
EPA has not construed the Clean Water or Safe Drinking Water Acts as delegations of federal authority
to a tribe. Rather, under these statutes, EPA looks to see whether a Tribe has adequate inherent authority
to run a program. In several cases, the Supreme Court has addressed the question of tribal inherent
authority over nonmembers on fee lands. As discussed in chapter 2, in Montana v United States, the
Supreme Court noted that "[a] Tribe may ... retain inherent power to exercise civil authority over the
conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct
189 59 Fed. Reg. 33469(1994).
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effect on the political integrity, the economic security, or the health or welfare of the tribe."190 In the
1991 preamble to its water quality standards regulations, the Agency announced that, on a case-by-case
basis, it will evaluate tribal assertions of authority over nonmember activities on fee lands based on the
Montana impacts test. However, because it was uncertain at that time as to the precise nature of the
impacts required under Montana, EPA stated in the 1991 preamble that it would look to see whether the
impacts on the tribe are "serious and substantial."191 In that preamble, EPA also made "generalized
findings," based on the Agency's expertise, that impacts to water quality usually are serious and
substantial. In addition, EPA noted that pollutants in surface water are quite mobile and that impacts to
nonmember lands of a reservation are very likely to impair the tribal lands192.
Since 1991, EPA has approved under CWA several tribal eligibility applications for water quality
standards programs covering waters on or adjacent to nonmember fee lands within a reservation. For
example, in February 1995, EPA found that the Confederated Salish and Kootenai Tribes of the Flathead
Reservation had demonstrated authority over all surface waters within the Reservation. Approximately
50 percent of the Flathead Reservation is held in fee tide by nonmembers. The Reservation is centered
on a valley, with mountains on the east and west side, and the Flathead River running down the center.
The River is surrounded by trust lands and, thus, activities throughout the Flathead River watershed
affect or may affect these trust lands around the River.
EPA's determination was based on its formulation of the Montana test, the Agency's generalized
findings regarding the seriousness and mobility of water pollution, and specific examples of actual and
potential impacts to tribal health and welfare from nonmember activities on fee lands within the Flathead
Reservation. EPA also noted that the result of its decision had the positive effect of avoiding
checkerboarded management within the Reservation.
In March 1996, a federal district court upheld EPA's determination that the tribe has authority to
implement its water quality standards program over all waters on the Reservation, including those on or
next to nonmember fee lands.193 The court upheld EPA's legal test, the Agency's generalized findings,
and the specific demonstrations of impacts on the Flathead Reservation. An important factor in this
decision was EPA's expertise regarding the nature and effects of water pollution. On appeal, the Ninth
190 450 U.S. 544,565(1981)
191
56 Fed. Reg. 64876,64877-79 (December 12, 1991)
192 Id.
193
Montana v. EPA. 941 F. Supp. 945 (D. Mont. 1996).
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Circuit Court of Appeals affirmed the decision on March 3, 1998."4 On May 2, 1998 the State of
Montana filed a petition for review by the Supreme Court.
Congress has broad authority over tribal affairs and may, by statute, delegate federal authority to a tribe.
Such a delegation could provide a federal statutory source of tribal authority that would not depend on
the tribe's inherent authority. In United States v. Mazurie, 419 U.S. 544 (1975), the Supreme Court
examined whether the federal government can delegate federal authority to tribal governments over
activities in Indian country, including activities of non-Indians within reservation boundaries. "5 The
issue was raised in the Mazurie case in the context of the regulation of alcoholic beverages in Indian
country. The Court found that Congress may delegate federal authority to regulate the sale of alcoholic
beverages in Indian country by non-Indians even though the activity occurred on nonmember fee land
within the boundaries of the reservation.196
In contrast to CWA and SDWA, EPA has taken the position in the Tribal Authority Rule under
CAA—based on several provisions of the statute and legislative history—that CAA constitutes a
delegation of Congressional authority to eligible tribes to run air programs over their entire reservations,
including fee lands.197 Under that regulation tribes may also run programs on non-reservation lands over
which they can demonstrate jurisdiction. The Tribal Authority Rule has been challenged in the U.S.
Court of Appeals for the D.C. Circuit.
C. Direct Federal Implementation
The Agency's Indian policy states that:
Until Tribal Governments are willing and able to assume full responsibility for
delegable programs, the Agency will retain responsibility for managing programs
for reservations (unless the State has an express grant of jurisdiction from
Congress sufficient to support delegation to the State Government).
Given that environmental program responsibility requires capability and significant resources, tribes do
not always find it practical to assume full responsibility for EPA programs. Based upon a variety of
factors, often including program costs, availability of technical expertise and assistance, and maintenance
194 Montana v. EPA. 13 F. 3d 1135 (9* Cir. 1998).
195 419 U.S. 544 (1975).
196 Id.
197 Indian Tribes: Air Quality Planning and Management; Final Rule, 63FR7254 (1998).
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costs, tribal governments may select certain high-priority activities, but may decide not to assume an
entire regulatory program. When tribes decide not to undertake certain activities under EPA's programs
or not to apply for entire programs, EPA will seek to directly implement the environmental management
programs.
The following is an illustrative selection of some tools that are available for direct federal
implementation:
• communications with tribes;
• establishment of Tribal-EPA Environmental Agreements (TEAs) that identify tribal
priorities and help with budget development;
• development of Regional and National Environmental Work plans based on TEAs.;
• development of Regional strategies so that direct implementation is consistent with tribal
priorities; and
• training of management and regional staff.
Below are several success stories that document instances in which direct implementation is occurring.
• Many Regions assist with the regulation of drinking water sources and of underground
injection wells that can affect drinking water, surface water, and ground water sources.
• Region 8 provides staff to visit reservations and to provide compliance and enforcement
services under the Underground Storage Tank Program of the Resource Conservation
and Recovery Act.
• On the Colville Indian Reservation, Region 10, in conjunction with the tribe, has
established federal water-quality standards and is issuing discharge (NPDES) permits for
the navigable waters within the exterior boundaries of the reservation.
The Clean Air Act: Air Quality Planning and Management (Final Rule) issued February 12, 1998,
authorizes eligible tribes to implement their own air programs and to be treated in the same manner as
states under the provisions of the Clean Air Act. This final rule will provide to tribes with approved
CAA programs the authority over all air resources within a reservation (including non-Indian owned fee
lands). Under this Final Rule, the criteria for a tribe's eligibility for treatment in the same manner
include demonstrating that a tribe is federally recognized, has a governing body that performs substantial
governmental duties and powers, and is capable of implementing a program consistent with the Clean Air
Act and its regulations. Other significant features of this final Clean Air Act rule include the following:
• tribes may implement portions of the CAA programs most relevant to tribal needs;
• tribe may develop more stringent requirements in their air programs;
• federal implementation of CAA in Indian country may be established if tribes choose not
to develop their own program; and
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• tribes may continue to seek financial assistance to support their air programs under
section 103 and 105 of the Clean Air Act, and the Agency's General Assistance Grants
Program (GAP).
A fact sheet on this final rule is included in the Appendix.
D. Cooperative Approaches To Implementation
The components of EPA program implementation discussed above all include a significant degree of
cooperation between EPA and tribes. In some situations, tribes and states, along with EPA, may also
work together to protect human health and the environment in Indian country through cooperative
agreements. There may be considerable flexibility in the ways tribes, states and EPA can work together
under such agreements.
Tribal-state relations are often complex. As a result of differing legal views about their respective
jurisdictions, tribes and states often find themselves competing aggressively for authority, particularly
with regard to nonmembers and nonmember-owned land. Nonetheless, state-tribal cooperative
agreements can be an effective strategy for implementing a sound environmental program that avoids
addressing difficult jurisdictional questions, provided that the parties do not compromise important
political or legal rights.
Despite jurisdictional differences, it is important to note that many points of agreement and cooperative
partnership between states and tribes can be negotiated to the mutual satisfaction of both parties.
Usually, these agreements have focused on information exchanges and transboundary coordination, much
like agreements commonly reached between states. In the 1994 Survey of Tribal Water Quality, the
National Indian Policy Center noted that one approach to tribal-state agreements is to avoid matters that
depend upon jurisdiction:
We know of several tribal-State agreements that avoid the jurisdictional issue altogether,
while providing for information sharing, common regulatory standards and procedures,
joint inspections, cross-deputization of environmental enforcement officials, prior notice
and opportunity to comment on proposed permits, and a variety of other procedures that
address the interests of both parties and enhance environmental protection.198
In one case, the tribal-state agreement simply included a jurisdictional disclaimer by the State over
activities in Indian country. This agreement, the Navajo Nation-State of Arizona Agreement on
Environmental Regulation, also allowed tribal environmental staff to use training opportunities offered
by the State and provided internships for tribal staff in the Arizona Department of Environmental
Quality.
Several important EPA documents pertaining to tribal-State cooperative agreements may also provide
helpful guidance whenever EPA is asked to facilitate and/or be a signatory to such an agreement:
198 Grover, Stetson and Williams. National Indian Policy Center, Washington, D.C., September 1994.
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Resource Guide £afl2-Z2
a) "Federal, Tribal and State Roles in the Protection and Regulation of Reservation
Environments," signed by the EPA Administrator on July 10, 1991. See Appendix.
b) "Policy Guidance on Tribal-State Cooperative Agreements," signed by the Director of
the American Indian Environmental Office (AEO) on May 22, 1995. See Appendix.
c) "EPA Region 8 Policy for Environmental Protection in Indian country," which was
developed by Region 8 in concert with the Office of Water and the Office of General
Counsel and was signed by the Regional Administrator on March 14,1996. Part VH of
the Policy addresses Tribal-State-EPA Cooperative Agreements. See Appendix.
EPA managers and staff, who are involved in negotiating, drafting, or advising states and tribes on the
development of tribal-State agreements and EPA-tribal-state agreements, should be familiar with the
directives and guidance contained in these documents.
IV. ORGANIZATION OF ERA'S INDIAN PROGRAM
A. The American Indian Environmental Office
The American Indian Environmental Office, working with its regional components, is responsible for
coordinating the Agency-wide effort to strengthen public health and environmental protection in Indian
country. AffiO oversees development and implementation of the Agency's Indian policy . The office
strives to ensure that all EPA Headquarters and regional offices implement their parts of the Agency's
Indian Program in a manner consistent with EPA's trust responsibility regarding protection of tribal
health and environment, administration policy to work with tribes on a government-to-govemment basis,
and support of tribal self-governance. AIEO's responsibilities also include:
providing oversight of multimedia program development grants to tribes under the Indian
Environmental Government Assistance Program Act;
negotiating tribal-EPA Environmental Agreements that identify tribal priorities for
building environmental programs and also for direct, EPA program implementation
assistance;
• developing tools to helpt tribal environmental managers make decisions on
environmental priorities;
developing training curricula for EPA staff on how to work effectively with tribes; and
working to improve communication between the Agency and its tribal governments in a
number of ways, including assistance to Agency Offices as they consult more closely
with tribes on actions that affect tribes and their environments, and support for regular
meetings of EPA's Tribal Operations Committee.
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Resource Guide PflW 74
EPA's Indian Program is implemented primarily by EPA Regions and Headquarter's program offices.
However, AIEO is often called upon to help guide this process.
B. Regional Programs and Operations
Federally-recognized tribes reside in nine of the Agency's ten regions (Region 3 is the exception). Each
of these nine regions has appointed a Regional Indian Coordinator, and some of the regions have
established an Indian program office. Most of the regions have a Regional Indian Work Group that acts
as a regional counterpart to the National Indian Work Group. Some regions have field staff to work
directly with the tribes in their development and implementation of environmental programs. These field
staff are sometimes referred to as Indian Environmental Liaisons or Circuit Riders, depending on the
region. Most of the regions have also established a regional counterpart to the Tribal Operations
Committee. Some regions have a formal Regional Tribal Operations Committee (RTOC) comprised of
tribes residing within that region, while others have instituted regular meetings between tribal leaders and
the region's senior management. Some regions have both an RTOC and regular all-tribes meetings.
C. Tribal Operations Committee
In order to improve communications and build stronger partnerships with the tribes, the Agency
established the Tribal Operations Committee (TOC) in February 1994. The TOC comprises 19 tribal
leaders or their environmental program managers (the tribal caucus) and EPA's Senior Leadership Team,
including the Administrator, the Deputy Administrator, and the Assistant and Regional Administrators.
The TOC meets on a regular basis to discuss implementation of the environmental protection programs
for which EPA and the tribes share responsibility as co-regulators. All tribes are encouraged to
communicate with the members of the TOC tribal caucus. Although the TOC is an important and
effective vehicle for enhancing communications between EPA and the tribes, it is not a substitute for
Agency consultation with individual tribes in accordance with the Administration policy of working with
Indian tribes on a govemment-to-govemment basis.
D. Agency Senior Indian Program Managers
This group is chaired by the Assistant Administrator for Water (as the Assistant Administrator for the
National Indian Program) and includes a senior manager designated by each Assistant Administrator and
Regional Administrator and the Director of the American Indian Environmental Office. This group
meets once a month via teleconference to discuss pressing or nationally-significant issues, policy, and
program direction, and to exchange information between Headquarters and regions. The group was
established to help the Agency meet the Administrator's high expectations for progress on strengthening
the Agency's Indian Program and to help identify any program weaknesses.
E. National Indian Work Group
The role of the National Indian Work Group (NILWG) was initially defined in the 1984 Indian Policy
Implementation Guidance. The NILWG is chaired by the Director of the American Indian
Environmental Office and is composed of representatives from regional and program offices, generally
the Indian Coordinator. NILWG was established to facilitate and coordinate efforts to identify and
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Resource Guide Page 75
resolve policy and programmatic barriers to working directly with Indian tribes; implement
comprehensive tribal environmental programs; identify priority tribal projects; and perform other
services in support of the Agency managers in implementing the Indian policy. NTWG holds regular
biweekly conference calls and usually meets at least once each year.
F. National Indian Law Work Group
The National Indian Law Work Group (NILWG) is the counterpart to the National Indian Work Group.
It addresses legal issues that arise in the course of developing and implementing the Agency's Indian
Program. The NILWG is composed of lawyers from EPA's regional counsel and program offices, the
Office of General Counsel, the Office of Enforcement and Compliance Assurance, and from the
Department of Justice who work on federal Indian law issues. The group also includes policy staff from
AIEO and other EPA offices. NILWG meets once a month via teleconference to discuss pressing or
nationally-significant Indian law issues related to environmental protection and to exchange information
on common issues and problems. Also, NILWG usually meets face-to-face once each year.
G. American Indian Advisory Council
The American Indian Advisory Council (AIAC) is a Special Emphasis Program Council organized under
the Office of Civil Rights. The central purpose of AIAC is to serve as an advisory group to the
Administrator of EPA to recommend actions that address concerns of American Indians in the EPA
workforce, and of the Indian tribes. Membership is open to all employees of EPA.
H. National Environmental Justice Advisory Council Indigenous
Peoples Subcommittee
The National Environmental Justice Advisory Council (NEJAC) was charted as a Federal Advisory
Committee in 1993. The Council has 25 representatives from key environmental justice constituencies,
including community-based groups, business and industry, academic and educational institutions, tribal
governments, state and local governments, and nongovernmental organizations. The Council has six
subcommittees, one of which is the Indigenous Peoples Subcommittee. This Subcommittee has eight
members with a diversity of backgrounds, such as tribal government, indigenous grassroots groups and
environmental organizations, tribal business and industry, academia, and state government. This
Subcommittee is primarily focused on reviewing Agency actions to address environmental justice and
developing recommendations for bringing about environmental justice in Indian country.
I. Other EPA Advisory Council With Tribal Representation
EPA has numerous federal advisory councils that have been chartered to address various environmental
issues, from the Grand Canyon Visibility Transport Commission to the Common Sense Initiative. Many
of these advisory councils have now appointed at least one tribal representative, but some groups still
lack tribal representation. These stakeholder forums offer an additional mechanism for obtaining general
tribal input on a variety of EPA issues.
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Resource Guide Paae 76
V. TRIBAL OPERATIONS IN OTHER SELECTED FEDERAL
DEPARTMENTS AND AGENCIES
A. White House Domestic Policy Council
The Domestic Policy Council has established a Working Group on American Indians and Alaska Natives
to coordinate efforts across the federal Executive Branch to address key issues affecting Indian country.
The Working Group is chaired by the Secretary of the Interior and is composed of Secretary and
Assistant Secretary-level representatives from each of the federal departments/agencies with
responsibility for American Indian and Alaska Native issues. The Working Group has five subgroups,
including one on the Environment and Natural Resources, which is co-chaired by the Director of the EPA
American Indian Environmental Office and the Assistant Secretary for the Bureau of Indian Affairs.
B. White House Council on Environmental Quality
The Council on Environmental Quality (CEQ) is primarily responsible for overseeing the implementation
of the National Environmental Policy Act (NEPA) and coordinating environmental issues across the
federal Executive Branch. Thus, CEQ plays an important role in the protection of tribal environments,
since the responsibility for this protection is shared by many federal departments and agencies. Also,
issues regarding the implementation of NEPA have played a prominent role in the management of Tribal
environments. In recent years, CEQ has been working with EPA to strengthen the tribal role under
NEPA and to ensure consultation with affected tribes when a federal department of agency is developing
NEPA documents.
C. Department of the Interior
The Department of the Interior (DOT) has multiple Offices and Bureaus that have significant
responsibilities relating to Indian tribes. Primarily, the Bureau of Indian Affairs has the lead for the
Federal executive on general Indian issues. In addition, the Office of American Indian Trust has the
primary responsibility for overseeing the Federal Government's trust obligations, and the Assistant
Solicitor for Indian Affairs has the primary role of furthering Indian legal issues and protecting Indian
rights. Also, many of the land use and natural resource bureaus and offices at DOI have responsibilities
for issues that affect tribal environments, such as the Bureau of Land Management, the Office of Surface
Mining, the Fish and Wildlife Service, and the National Park Service.
D. Department of Justice
The Department of Justice (DOJ) plays a unique role in the protection of tribal environments and natural
resources. Generally, DOJ will be requested by an agency referral to file a law suit on behalf of another
Federal agency, such as EPA or DOI, or to defend such agencies against a suit. In the context of tribal
environments, EPA and/or DOI have the option to request that DOJ take an enforcement action, when
such an action is warranted by law, against a pollution source causing harm to tribal environmental
resources. Given that most tribal environmental programs are in the early stages of development, this
alternative method, as opposed to tribal enforcement, offers a potentially powerful tool for ensuring the
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Resource Guide . . E39&2Z
protection of tribal environments. In order to handle litigation related to Indian tribes, DOJ established
an Indian Resources Section within the Environment and Natural Resources Division. The
Environmental Defense, Environmental Enforcement, and General Litigation Sections also play key roles
in the Environmental and Natural Resources Division with regard to environmental litigation involving
tribes. Also, DOJ recently established the Office of Tribal Justice to coordinate policy initiatives relating
to tribes and to belter promote issues of Federal Indian law.
In June 1995, the Attorney General issued the DOJ policy on Indian sovereignty and government-to-
govemment relations with Indian tribes. The purpose of this policy is:
To reaffirm the Department's recognition of the sovereign status of federally
recognized Indian Tribes as domestic dependent nations and to reaffirm
adherence to the principles of government-to-govemment relations; to inform
Department personnel, other Federal agencies, federally recognized Indian
Tribes, and the public of the Department's working relationship with federally
recognized Indian Tribes; and to guide the Department in its work in the field of
Indian affairs.
E. Department of Health and Human Services
The Department of Health and Human Services (HHS) has two Offices that specifically handle Indian
issues. The Indian Health Service (MS) is a public health service designed exclusively to address Indian
health issues. As part of many Indian treaties, the federal government guaranteed health care to Indian
people in exchange for peace, friendship, and land. IHS has the primary responsibility of carrying out
these treaty obligations. Among other services provided, IHS operates numerous hospitals throughout
Indian country. The Administration for Native Americans (ANA) is a general Indian service
organization that primarily manages various tribal grant programs. Most important to EPA is the ANA
grant program for improving the capability of Indian tribal governments to regulate environmental
quality. This program is similar to the Agency's General Assistance Program in that it is meant to help
tribes develop their overall capacity to implement environmental programs. IHS plays an important role
on sanitation issues, especially drinking water and sewer issues, and solid waste disposal. IHS has
special authority to compact with tribes under the Indian Self-Determination and Education Assistance
Act (ISDEA) for waste water and drinking water facilities. IHS is often linked to funding provided by
EPA under the Clean Water Act's Indian Set-Aside program. With landfills, IHS has traditionally been
involved with designing and setting up landfills on reservations, and has inventoried landfill problems
pursuant to the Indian Lands Open Cleanup Act of 1993.199
F. Department of Defense
The Department of Defense (DOD), like DOI, has many activities related to its mission that affect Indian
lands. Many DOD facilities, such as military bases, bombing ranges, overflight areas, and laboratories
are located on or adjacent to Indian lands. In order to begin addressing some of the environmental harm
199 25 U.S.C. § 3901-3908.
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Resource Guide Page 78
that has resulted from these facilities, DOD now manages a tribal grant program for the mitigation of
environmental impacts to Indian lands due to Department of Defense activities. In addition, Tribes are
also impacted by actions taken by the Army Corps of Engineers (ACE). Tribes have been impacted by
ACE projects such as the construction of dams that result in the flooding of reservations and ceded
territory and the issuance of dredge and fill permits for wetlands within the tribes' watersheds.
G. Department of Agriculture
The United States Department of Agriculture (USDA) has taken some important strides in working with
the Indian Nations. In recent years, the USDA has dramatically increased outreach and program delivery
to Indian country residents. For instance, within the Rural Development Mission Area (formerly known
as "Farmers Home Administration"), home ownership programs have been modified to better meet the
needs of Native Americans living on trust lands. Increased emphasis has been placed on loan assistance
and leveraging funds, tribal government consultation regarding housing development issues, and the
introduction of culturally-appropriate housing design. Additionally, increased emphasis has been placed
on economic development activities and programs in Indian country. Finally, the USDA continues to
work with other federal agencies in cooperative efforts designed to meet the needs of tribal governments
(examples of this can be seen in inter-agency agreements, etc.).
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Resource Guide Appendix Contents
President Clinton's Memorandum—"Government-to-Government Relations with Native
American Tribal Governments" (April 29,1994)
"EPA Policy for the Administration of Environmental Programs on Indian Reservations"
William D. Ruckelshaus (November 8,1984)
"EPA Indian Policy" Administrator Carol Browner's Memorandum (March 14,1994)
Executive Order 12898— "Federal Actions to Address Environmental Justice in Minority
Populations and EPA Policy for the Administration of Environmental Programs on Indian
Reservations" (February 11,1994)
Executive Order 13007— "Indian Sacred Sites" (May 24,1996)
'Tederal, Tribal and State Roles in the Protection and Regulation of Reservation
Environments" Concept Paper by Administrator William K. Reilly (July 10,1991)
Administrator Browner's Tribal Action Memorandum— "Announcement of Actions for
Strengthening EPA's Tribal Operations" (July 14,1994)
EPA Strategy in Response to Executive Order 12898 (April, 1995)
"EPA Region 8 Policy for Enviromental Protection in Indian Country" (March 14,1996)
Memorandum of Understanding Among BIA, EPA, and IHS
GAP Distribution Table and Memorandum by EPA Assistant Administrator Perciasepe
(March 26,1998)
Performance Partnership Grants program description
Template for Environmental Agreements (TEA) Memorandum by Terry Williams, AJEO
(March 20,1995)
"Indian Tribes: Air Quality Planning and Management" Clean Air Act Final Rule Federal
Register Notice Final Rule (February 12, 1998)
Executive Order 13084 "Consultation andCoordination with Indian Tribal Governments"
(May 14,1998)
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Federal Register
VoL 59. No. 85
Wednesday. May 4. 1994
22951
Presidential Documents
•!
^i
Titles—
The President
Memorandum of April 29, 1994
GovernmenMo-Government Relations With
Native American Tribal Governments
Memorandum for the Heads of Executive Departments and Agencies
The United States Government has & 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, sen-
sitive manner respectful of tribal sovereignty. Today, as part of an historic
meeting. I am outlining principles that executive departments and agencies,
including every component bureau and office, are to follow in their inter-
actions with Native American tribal governments. The purpose of these
principles is to clarify our responsibility to ensure that the Federal Govern-
ment 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 goverament-
to-government relationship with federally recognized tribal governments.
(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 propos-
als. . .
(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 consid-
ered during the development of such plans, projects, programs, and activities.
(d) Each executive department and 'agency shall take appropriate steps
to remove any procedural impediments to working directly and effectively
with tribal governments on activities that affect the trust property and/
or governmental rights of the tribes.
(e) Each executive department and agency shall work cooperatively with
other Federal departments and agencies to enlist their interest and support
in cooperative efforts, where appropriate, to accomplish the goals of this
memorandum.
(f) Each executive department and agency shall apply the requirements
of Executive Orders Nos. 12875 ("Enhancing the Intergovernmental Partner-
ship") and 12866 ("Regulatory Planning and Review") to design solutions
and tailor Federal programs, in appropriate circumstances, to address specific
or unique needs of tribal communities.
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22952 Federal Register /.VoL 59; No. 85 / Wednesday. May 4.-1994 / Presidential Documaots
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 rn*>rnnran<^|1Tn 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 fl"* memorandum in the-Federal Register.
|FR Doc M-1M77
F1M 9-3-M: 3*9 pa!
BOUnt cod* J1W-01-M
THE WHITE HOUSE.
Washington. April 29. 1994.
Editorial sate Fat the PiwWenft remaxfcs to American Indian and Native Alaska tribel leaders.
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U/8/84
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it trill work directly with T, ibal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously Issu 1 general
statements of policy which recognize the importance of Tribal Governments
ln 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-govemment" rela-
tions between Federal and Tribal Governments. This statement sets forth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy is "ntended to provide guidance f »r EPA program managers 1n the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies in the conduct of their respective responsibilities.
It is important to emphasize that the implementation oC regulatory
programs which will realize the*, principles on Indian Reservations cannot
be accomplished immediately. Efrective implementation will take careful
and conscientious work ty EPA. the Tribes and many others. In many cases.
it will require changes in applicable statutory authorities and regulations.
It will be necessary 10 proceed in a carefully pHaied May. to learn from
successes ar.d failures, and to gain experience. Nonetheless, -by beginning
work on the priority problems that exist now and continuing In ".he direction
established under these principles, over time we can signlfleanttjr enhance
environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the
fundamental objective of the Environmental Protection Agency Is to protect
human health and the environment. The keynote of this effort will be to
give sp.cial consideration to Tribal interests 1n making Agency policy.
and to ' insure the close invo /ement of Tribal Governments In miking
decisions and managing environmental progress affecting reservation lands.
To meet this objective, the Agency will pursue the following principles:
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE 'GOVERNMENT-TO-GOVERNMENT'4 RELATIONSHIP}. RATHE3
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 *s political subdivision: of States or
other governmental units.
2. THE AGENCY MILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARD*. MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESE .YATIOKS. CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self •government, the Agency
will view Tribal Governnents as the appropriate non-Federal parties for
Mking- 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 HILL TAKE AFFIRMATIVl STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will'assist interested Tribal Governments in developing
programs and in preparing to assume regulatory and program management
responsibilities for reservation lanas. Mi thin the constraints of £?A's
authoricy and resources, this ai< "ill include providing grants and ither
assistance to Tribes similar to -hat we provide State Governments. The
Agency will encourage Tribes to assume delegable responsibilities, (v.^.
responsibilities which the Agency has traditionally delegated to State
Governments for -non-reservation lands) under terms similar to those
governing delegations to States. '* '
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agenty
will encourage the Tribe to participate In policy-making and to assume
appropriate lesser or partial rotes 1n the minagement of - reservation
program.
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4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AMD
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties 1n the language
of our statutes and regulations have Halted our Ability to work directly
and effectively with Tribal Governments on reservation problems. As
inpedlnents 1n our procedures, regulations or statutes are Identified
which Halt our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove .those Impediments.
S. THE AGENCY. IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY. HILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS NAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that t trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed 1n c*rt«in treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental Interests of Indian Tribes when carrying out Its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL. STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutual consideration of neighboring governments, whether those
"overnments t»? neighboring States. Tribes, or local units of gove.iment.
Accordingly. EPA will encourage early communication and cooperatlor.
among Tribes. States and local governments. This 1s not Intended to
lend Federal support to any one party to the jeopardy of the Interests
of the other. Rather. 1t recognizes that 1n the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best Interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATION TO ENLIST THE I* INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HEi-P TRUES ASSUME ENVIRONMENTAL
'".OGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the environment on reservations. We will
work with other agencies to clearly identify and delineate the roles.
responsibilities and relationships of our respective organizations and
to assist Tribes 1n developing and managing environmental programs fcr
reservation lands.
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8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
In those cases where facilities owned or managed by Tribal Governments
are not In compliance with Federal environmental s'.atutes, EPA Mill work
cooperatively with Tribal leadership to develop Means to achieve comp:lance,
providing technical support and consultation as necessary to enable Tribal
facilities to coolly. 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 Us
judgment, that: (1) a significant threat to human health or the environment
exists, (2) such action would reasonably be expected to achieve effective
results in a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem 1n a timely fashion.
In those cases where,reservation facilities are clearly owned or managed
by private parties and there Is no substantial Tribal Interest or control
involved, the Agency will endeavor to act in cooperation with the affected
Tribal Government, but will otherwise respond to n on comp 1lance by orivate
parties on Indian reservations as the Agency would to noncomplianc---/ the
private sector elsew.iere 1" the country. Wher the Tribe has a substantial
proprietary Interest 1n', or control over, the privately owned or managed
facility, EPA will respond as described in the first paragraph above.
9. THE AGENCY HILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES, INCLU01NG ITS BUDGET. OPERATING GUIDANCE. LEGISLA-
TIVE INITIATIVES. MAMA6EMCIIT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES.
It 1s a central purpose of this effort to ensure that the principles
of this Policy are t 'fsctlvely Institutionalized by Incorporating them Into
the Agency's ongoing «nd lon^-term planning and management processes. Agency
managers will Include specific programmatic actions designed to resolve prob-
lems on Indian reservations in the Agency's existing fiscal year and long-term
planning and management processes.
WMliam D. Ruckelshaus
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UNtTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHMOTON, O.C, 20460
HARMtt*
MEMORANDUM
SUBJECT: EPA Indian Policy
TO: All Employees
In 1984.CPA became the first Federal agency to adopt a formal Indian Policy (copy
attached). EPA is proud of mat 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 recognbsd tribes on a govemment-
to-govemment basis to f^******* 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.
for EPA today fc to imptaiientite
administrations have nEfT*!***1 implementation, both in a 1984. Policy
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 dement for successfully implementing the Indian Policy aunt be a
commitment to fully institutionalize the Policy into the Agency's planning and management
activities.
On March 7, Martha Protbro, formerly Deputy Assistant Administrator for Water,
joined my staff to assist in developing our Tribal Programs. I tove asked Martha andKll
Yellowtail, Regional Administrator, EPA Region vm, to form a team of Agency leaders to
make recommendations on EPA/Tribal relations and the raiplemertitkm of the Policy. The
work of this group.should help the Agency devek^ the bt^structttre and adop^ best
strategies fo. implementing the goals of the Policy. The team win woik wiinjtopal
representatives, mcmdmg the Tribal Opertlioiis Couunittee aiid od^
impiementatkn guidance. This guidance will provide a blueprint for transformlnf^e
Policy's vision into a reality for federally recognized Indian Tribes, including Alaskan
Tribes.
This b an excitiiig 6p!»ituiiity for iis fo ^^
governments in protecting the «r uonn-at. I as! .all of you to help make this effort a great
Carol M. Browner
Attachment
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February 11, 1994
EXECUTIVE ORDER
FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY
POPULATIONS AND LOW-INCOME POPULATIONS
By the authority vested in me as President by the Constitution and the laws of the United States of
America, it is hereby ordered as follows:
Section 1-1. IMPLEMENTATION.
1-101. Agency Responsibilities. To the greatest extent practicable and permitted by law, and consistent
with the principles set forth In the report on the National Performance Review, each Federal agency shall
make achieving environmental justice part of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the United States and its territories and
possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the
Marian islands.
1-102. Creation of an Interagency Working Group on Environmental Justice (a) Within 3 months of the
date of this order, the Administrator of the Environmental Protection Agency ("Administrator") or the
Administrator's designee shall convene an Interagency Federal Working Group on Environmental
Justice ("Working- Group"). The Working Group shall comprise the heads of the following executive
agencies and offices, or their designees: (a)Department of Defense; (b) Department of Health and
Human Services; (c)Department of Housing and Urban Development; (d) Department of Labor, (e)
Department of Agriculture; (i) Department of Transportation; (g) Department of Justice; (h) Department
of uie Interior; (i) Department of Commerce; (j) Department of Energy; (k) Environmental Protection
Agency; (1) Office of Management and Budget; (m) Office of Science and Technology Policy; (n)
Office of the Deputy Assistant to the President for Environmental Policy; (o) Office of the Assistant to
the President for Domestic Policy; (p) National Economic Council; (q) Council of Economic Advisers;
and (r) such other Government officials as the President may designate. The Working Group shall report
to the President through the Deputy Assistant to the President for Environmental Pohcy and the
Assistant to the President for Domestic Policy.
(b)The Working Group shall: (1) provide guidance to Federal agencies on criteria for identifying
disproportionately high and adverse human health or environmental effects on minority populations and
low-income populations;
(2)coordinate with, provide guidance to, and serve as a clearinghouse for, each Federal agency as it
develops an environmental justice strategy as required by section 1-103 of this order, in order to ensure
that the administration, interpretation and enforcement of programs, activities and policies are
undertaken in a consistent manner; (3) assist in coordinating research by, and stimulating cooperation
among, the Environmental Protection Agency, the Department of Health and Human Services, the
Department of Housing and Urban Development, and other agencies conducting research or other
activities in accordance with section 3-3 of this order;
(4) assist in coordinating data collection, required by this order;
(5) examine existing data and studies on environmental justice;
(6) hold public meetings at required in section 5-502(d) of this order; and
(7) develop interagency model projects on environmental justice that evidence cooperation among
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Federal agencies.
1-103. Development of Agency Strategies, (a) Except as provided in section 6-605 of this order, each
Federal agency shall develop an agency-wide environmental justice strategy, as set forth in subsections
(b) - (e) of this section that identifies and addresses disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority populations and low-income
populations. The environmental justice strategy shall list programs, policies, planning and public
participation processes, enforcement, and/or rulemakings related to human health or the environment
that should be revised to, at a minimum: (1) promote enforcement of all health and environmental
statutes in areas with minority populations and low-income populations: (2) ensure greater public
participation; (3) improve research and data collection relating to the health of and environment of
minority populations and low-income populations; and (4) identify differential patterns of consumption
of natural resources among minority populations and low-income populations. In addition, the
environmental justice strategy shall include, where appropriate, a timetable for undertaking identified
revisions and consideration of economic and social implications of the revisions.
(b) Within 4 months of the date of this order, each Federal agency shall identify an internal
administrative process for developing its environmental justice strategy, and shall inform the Working
Group of the process.
(c) Within 6 months of the date of this order, each Federal agency shall provide the Working Group with
an outline of its proposed environmental justice strategy.
(d) Within 10 months of the date of this order, each Federal agency shall provide the Working Group
with its proposed environmental justice strategy.
(e) Within 12 months of the date of mis order, each Federal agency shall finalize its environmental
justice strategy and provide a copy and written description of its strategy to the Working Group. During
the 12 month period from the date of this order, each Federal agency, as part of its environmental justice
strategy, shell identify several specific projects that can be promptly undertaken to address particular
concerns identified during the development of the proposed environmental justice strategy, and a
schedule for implementing those projects.
(f) Within 24 months of the date of this order, each Federal agency shall report to the Working Group on
its progress in implementing its agency-wide environmental justice strategy.
(g) Federal agencies shall provide additional periodic reports to the Working Group as requested by the
Working Group.
1-104. Reports to The President Within 14 months of the date of this order, the Working Group shall
submit to the President, through the Office of the Deputy Assistant to the President for Environmental
Policy and the Office of the Assistant to the President for Domestic Policy, a report that describes the
implementation of this order, and includes the final environmental justice strategies described in section
l-103(e) of this order.
Sec. 2-2. Federal Agency Responsibilities For Federal Programs. Each Federal agency shall conduct its
programs, policies, and activities that substantially affect human health or the environment, in a manner
that ensures that such programs, policies, and activities do not have the effect of excluding persons
(including populations) from participation in, denying persons (including populations) the benefits of, or
subjecting persons (including populations) to discrimination under, such, programs, policies, and
activities, because of their race, Color, or national origin.
Sec. 3 -3. Research, Data Collection, and Analysis
3-301. Human Health and Environmental Research and Analysis, (a) Environmental human health
research, whenever practicable and appropriate, shall include diverse segments of the population in
epidemiological and clinical studies, including segments at high risk from environmental hazards, such
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as minority populations, low-income populations and workers who may be exposed to, substantial
environmental hazards.
(b) Environmental human health analyses, whenever practicable and appropriate, shall identify multiple
and cumulative exposures.
(c) Federal agencies shall provide minority populations and low-income populations the opportunity to
comment on the development and design of research strategies undertaken pursuant to this order.
3-302. Human Health and Environmental Data Collection and Analysis To the extent permitted by
existing law, including the Privacy Act, as amended (5 U.S.C. section 552a): (a) each federal agency,
whenever practicable and appropriate, shall collect, maintain, and analyze information assessing and
comparing environmental and human health risks borne by populations identified by race, national
origin, or income. To the extent practical and appropriate, Federal agencies shall use this information to
determine whether their programs, policies, and activities have disproportionately high and adverse
human health or environmental effects on minority populations and low-income populations;
(b) hi connection with the development and implementation of agency strategies in section 1-103 of this
order, each Federal agency, whenever practicable and appropriate, shall collect, maintain and analyze
information on the race, national origin, income level, and other readily accessible and appropriate
information for areas surrounding facilities or sites expected to have substantial environmental, human
health, or economic effect on the surrounding populations, when such facilities or sites become the
subject of a substantial Federal environmental administrative or judicial action. Such information shall
be made available to the public unless prohibited by law; and
(c) Each Federal agency, whenever practicable and appropriate, shall collect, maintain, and analyze
information on the race, national origin, income level, and other readily accessible and appropriate
information for areas surrounding Federal facilities that are: (1) subject to the reporting requirements
under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11001-11050 as
mandated in Executive Order No. 12856; and (2) expected to have a substantial environmental, human
health, or economic effect on surrounding populations. Such information shall be made available to the
public unless prohibited by law.
(d) hi carrying out the responsibilities in this section, each Federal agency, whenever practicable and
appropriate, shall share information and eliminate unnecessary duplication of efforts through the use of
existing data systems and cooperative agreements among Federal agencies and with State, local, and
tribal governments.
Sec. 4-4. Subsistence Consumption Of Fish And Wildlife.
4-401. Consumption Patterns. Inorder to assist in identifying the need for ensuring protection of
populations with differential patterns of subsistence consumption offish and wildlife, Federal agencies,
whenever practicable and appropriate, shall collect, maintain, and analyze information on the
consumption patterns of populations who principally rely on fish and/or wildlife for subsistence. Federal
agencies shall communicate to the public the risks of those consumption patterns.
4-402. Guidance. Federal agencies, whenever practicable and appropriate, shall work in a coordinated
manner to publish guidance reflecting the latest scientific information available concerning methods for
evaluating the human health risks associated with the consumption of pollutant-bearing fish or wildlife.
Agencies shall consider such guidance in developing their policies and rules.
Sec. 5-5. Public Participation and Access to Information (a) The public may submit recommendations to
Federal agencies relating to the incorporation of environmental justice principles into Federal agency
programs or policies. Each Federal agency shall convey such recommendations to the Working Group.
(b) Each Federal agency may, whenever practicable and appropriate, translate crucial public documents,
notices, and hearings relating to human health or the environment for limited English speaking
m '->/• nc
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populations.
(c) Each Federal agency shall woik to ensure that public documents, notices, and hearings relating to
human health or the environment are concise, understandable, and readily accessible to the public.
(d) The Working Group shall hold public meetings, as appropriate, for the purpose of fact-finding,
receiving public comments, and conducting inquiries concerning environmental justice. The Working
Group shall prepare for public review a summary of the comments and recommendations discussed at
the public meetings.
Sec. 6-6. General Provisions.
6-601. Responsibility for Agency Implementation. The head of each Federal agency shall be responsible
for ensuring compliance with mis order. Each Federal agency shall conduct internal reviews and take
such other steps as may be necessary to monitor compliance with this order.
6-602. Executive Order No. 12250. This Executive order is intended to supplement but not supersede
Executive Order No. 12250, which requires consistent and effective implementation of various laws
prohibiting discriminatory practices in programs receiving Federal financial assistance. Nothing herein
shall limit the effect or mandate of Executive Order No. 12250.
6-6O3. Executive Order No. 12875. This Executive order is not intended to limit the effect or mandate
of Executive Order No. 12875.
6-604. Scope. For purposes of mis order, Federal agency means any agency on the Working Group, and
such other agencies as may be dcsig™***** by the President, that conducts any Federal program or activity
that substantially affects human health or the environment Indqpendent agencies are requested to
comply with the provisions of this order.
6-605. Petitions far Exemptions. The head of a Federal agency may petition the President for an
exemption from the requirements of this order on the grounds that all or some of the petitioning agency's
programs or activities should not be subject to the requirements of this order.
6-606. Native American Programs. Each Federal agency responsibility set forth under this order shall
apply equally to Native American programs. In addition the Department of the Interior, in coordination
with the Working Group, and, after consultation with tribal leaders, shall coordinate steps to be taken
pursuant to this order that address Federally- recognized Indian
Tribes.
6-607. Costs. Unless otherwise provided by law, Federal agencies shall assume the financial costs of
complying with this order.
6-608. General. Federal agencies shall implement this order consistent with, and to the extent permitted
by, existing law.
6-609. Judicial Review. This order is intended only to improve the internal management of the executive
branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or
any person. This order shall not be construed to create any right to judicial review involving the
compliance or noncompliance of the United States, its agencies, its officers, or any other person with
this order.
William J. Clinton
THE WHITE HOUSE,
February 11,1994.
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Executive Orders
INDIAN SACRED SITES
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
May 24. 1996
EXECUTIVE ORDER
§13007
INDIAN SACRED SITES
By the authority vested in me as 'President by the
Constitution and the laws of the United States, in furtherance
of Federal treaties, and in order to protect and preserve Indian
religious practices, it is hereby ordered:
Section 1. Accommodation of Sacred Sites. (a) In managing
Federal lands, each executive branch agency with statutory or
administrative responsibility for the management of Federal
lands shall, to the extent practicable, permitted by law, and
not clearly inconsistent with essential agency functions,
(1) accommodate access to and ceremonial use of Indian sacred
sites by Indian religious practitioners and (2) avoid adversely
affecting the physical integrity of such sacred sites. Where
appropriate, agencies shall maintain the confidentiality of
sacred sites.
(b) For purposes of this order:
(i) "Federal lands' means any land or interests in land
owned by the United States, including leasehold interests held
by the United States, except Indian trust lands;
(ii) "Indian tribe* means an Indian or Alaska Native tribe.
band, nation, pueblo, village, or community that the Secretary
of the Interior acknowledges to exist as an Indian tribe
4/2/98 3:14 PI
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Sec. 4. This order is intended only to improve the
internal management of the executive branch and is not
intended to. nor does it, create any right, benefit, or trust
responsibility, substantive or procedural, enforceable at law
or equity by any party against the United States, its agencies,
officers, or any person.
WILLIAM J. CLINTON
THE WHITE HOUSE.
May 24, 1996.
iff
To comment on this service: feedbadc@www.whitehouse.fov
in/QR
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UNfTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
i 0 1391
THE ADMINISTRATOR
SUBJECT: EPA/State/Tribal Relations
TO: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Associate Administrators
Staff Office Directors
Earlier this year I shared with you ay views concerning
EPA's Indian Policy/ its implementation and its future direction.
I would now like to further emphasize my commitment to the Policy
by endorsing the attached paper that vas coordinated by Region
VIIC on EPA/State/Tribal Relations.
This paper was prepared to formalize the Agency's role in
strengthening tribal governments' management of environmental
programs on reservations. The paper notes that the differences
between the interests of tribal and state governments can be very
sensitive and sometimes extend well beyond the specific issues of
environmental protection. It reaffirms the general approach of
the Agency's Indian Policy and recommends the strengthening of
tribal capacity for environmental management. I believe the
Agency should continue its present policy, making every effort to
suppers cooperation and coordination between tribal and state
governments, while maintaining our commitment to environmental
quality.
I encourage you to promote tribal management of
environmental programs and worJc toward that goal.
Please distribute this document to states and tribes in your
region.
k*a^^M&&f
William K. R
Attachment
cc. Headquarters Program Office Directors
Regional Office Directors
IV-PM-13
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FEDERAL, TRIBAL AND STATE ROLES IN THE PROTECTION
AND REGULATION OF RESERVATION ENVIRONMENTS
A Concept Paper
I. BACKGROUND
William Reilly, in his first year as EPA Administrator,
reaffirmed the 1984 EPA Tnriia* Pollev 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.
XI- 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 velfare is tied closely to the
land, see protection of the reservation environment as essential
to preservation of the reservations themselves. Environmental
degradation is viewed as a form of further destruction of the
remaining reservation land base, and pollution prevention is
viewed as an act of tribal self-preservation that cannot be
entrusted to others. For these reasons, Indian tribes have
insisted that tribal governments be recognized as the proper
governmental entities to determine the future quality of
reservation environments.
IV-PM-U
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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 vho live or conduct business within reservation
boundaries, many of vhom believe that their environmental or
business intetests 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 vith 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 these
interests are the interests of Indians or non-Indians. In the
Agency's view, tribes and states do not differ on the importance
of these goals. Where they differ a: all. they differ or. 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 oi these interests and
goals can be accommodated vithin 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:
i) First, consistent with the President's policy, the
Agency supports the principle of Indian self-government:
IV-PM-15
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"In keeping with the principle of Indian self-government.
the Agency vili view Tribal Governments as the appropriate
non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, _
their environments, and the health and welfare of the
reservation populace. Just as EPA's deliberations and
activities have traditionally involved the interests and/or
participation of State Governments, EPA will look, directly
to Tribal Governments to play this lead role for matters
affecting reservation environments."
2) Second, the Agency encourages cooperation between state,
tribal and local governments to resolve environmental issues
of mutual concern:
"Sound environmental planning and management require the
cooperation and mutual consideration of neighboring
governments, whether those governments be neighboring
States, Tribes or local units c- 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."
:V. PRINCIPLES AND PROCEDURES FOR EPA ACTIOK
EPA program managers will be guided by the following
rinciples and procedures regarding tribal and state roles in the
.anagement of programs to protec. reservation environments.
1. The Agency will follow the principles and procedures
et forth in the EPA Policy for the Administration of
nvironmental Programs on Indian Reservations and the
ccompanying Implementation Guidance, both signed on
ovember 8, 19B4.
2. The Agency will, in making decisions on program
uthorization and other matters where jurisdiction .over
eservation pollution sources is critical, apply federal law as
Dixnd in the U.S. Constitution, applicable treaties, statutes and
aderal Indian law. Consistent with the EPA Indian Policy and
ie interests of administrative clarity, the Agency will view
idian reservations as single administrative units for regulatory
irposes. Hence, as a general rule, the Agency will authorize a
ribal or state government to manage reservation programs only
lere that government can demonstrate adequate jurisdiction over
slj.ution sources throughout the reservation. Where, however, a
ribe cannot demonstrate jurisdiction over one or more
IV-PM-16
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reservation sources, the Agency wj.ll retain enforcement primacy
for those sources. Until EPA formally authorizes a state or
tribal program, the Agency retains full responsibility for
program management. Where EPA retains such responsibility, it
will carry out its duties in accordance vith 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 vith 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
IV-PM-17
-------
significantly to public ac,aptance 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 vill act in accordance vith
the statute. Otherwise, EPA vill respond generally to such
differences in the same manner thai 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 frr the environment and the health of the affected
populace. EPA actions and decisions made in carrying out its
role and responsibilities vill be consistent vith federal lav and
the EPA Indian Policy. Within this framework, the Agency is
convinced that the environmental quality of reservation lands can
be protected and enhanced to the benefit of all.
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, UNITED STATES ENVIRC
XSfe I WASHINGTON. D.C. 20460
IS? JUIH199V
OFFICE OF
IHEAOMNSTRATbR
MEMORANDUM
SUBJECT: Armfflinrfirff«t of Actions for .Strengthening E? A's Tribal Operations
|TO: Assistant' Administrators
General Counsel
Inspector General
Associate Adminisli'ators
^fl^nuutifuiU
Staff Office Directors
Over the last five months a team of Senior EPA managers and * workgroup of EPA staff
have been working to identify ways to strengthen Tribal operations throughout the Agency. I
pild like to thank those who. worked oh the team for your tune and valuable contributions.
i hanks also to all of you for your support for improving EPA's Indian program and increasing the
Agency's ability to assist Tribes hi the development and implementation of then* 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 govemment-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, h will assist hi 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
tachments
Jtoeydal/Rccyclabto
PrtnM4«rtthSoy/Canol«Mt
comMrv* M tout SO* rec/ctod flbef
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TRIBAL OPERATIONS ACTION MEMORANDUM
J«Jyl2,1994
To hop uupiove ^""""MilciiliflBii'iiid ti"***IK**n^inc betweeu EPA and Tribes,
anew EPA/Tribal Operations Committee (TOC), which
includes 18 Tribal representatives.. At the Committee's first meeting, on February 17, 1994, the
AilmiiritUatoi; in order to respond to Tribal rmwiiiinirtations, authorired a group Jof semor
agffs from EPA Headc^^ develop recommendations, in.consultation with
the Tribal members of the TpQ on ways tosueugthen EPA*s Tribal environmental programs and
dafly operations, pursuant to«the imptementation of the 1984 Indian Policy. This team of EPA
managers has worited on a vanety tissues over the last five months
On May 26, 1994, at the Second National Tribal Conference on Environmental
Management in Cherokee, North Carofina, Administrator Browner annoanced her intent to create
a new Office of Indian Affairs and set October 1994, as tne target date for it to oegin operations^
^Although this Office wffl have the lead for c^^ *
iin|iU,ii»^iitmg Ttforf envimnmaiitd pmteetinii program* uiifl
remain with the Regions and Headquarters Program Offices. Therefore, we need not wait until
rfth^ Office to pnfflfH^be^
Tne following action nffliuf arc uueiiuco 10 •uctq^ucu ex* A.~S imiian program oy
supptementing current activities. Ahhough a Federal Register notice win invite public review and
comment on the functions of the new Office of Indian Affairs (some of which are shnflar to the
actions described below), EPA need not delay its effects 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 whh 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 wiU need to make some difficadt 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 anptementationiif the fbOowing actions, would benefit greatly from the
experience and working knowledge of the Headquarters Program and Regional bufian
Coordinators (the National Indian Work Group) and from consultation whh the Tribal
representatives to the Tribal Operations Committee. These individuals have a great deal of
information on Tribal needs and priorities.
In order to document and measure the Agency's progress and successes on strengthening
the implementation of Tribal environmental protection and to facilitate early feedback on that
progress, each Assistant and Regional Administrator will be asked to report, within 6 months
from the issuance of this memorandum, to the Administrator on the status of his/her
implementation efforts.
1
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1) Tribal 'Environmental Workplans: In order for EPA and Tribes to plan for and respond
effectively to Tribal environmental problems, the Agency and Tribes need to establish a
base description of the types of environmental problems and priorities Tribes -race 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, educatipn-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 ftdljtatc Program and..
Regional .efforts for effective Tribal environmental protection, each Assistant and Regional
Admhustrator 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 win 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.
\) EPA Implementation, Management and Compliance Activities: In response to
concerns that numerous gaps may exist in Tribal environmental protection, each Assistant
and Regional Administrator, in close consultation with Tribes, should take immediate
steps to increase implementation and management of and ensure compliance with
environmental programs. Although the Agency should encourage Tribal implementation
and management, where such Tribal environmental programs do not exist, the Agency, in
carrying out its statutory and trust responsibilities, must work, in partnership with Tribes,
on a government to government basis, to ensure the protection of Tribal human health,
natural resources and environments. Although EPA retains final authority over and
responsibility for its actions, the EPA Indian Policy recognizes Tribal governments as the
most appropriate authority for rromagfrE 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
professiomii,'fiill-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^ and .effective communication with piogiam staff throughout the
organization. In addition, each Assistant and Regional Adnunistrator should begin to
address any need for additional staff to cany out critical activities related to the Agency's
Indian progn
5) Field Assistance for Tribes:to orto to supph/the necessary assistances^
program development, authorization, operation and/or management, and to work with the
Tribes to determine EPA implementation and management responsibilities, each Regional
Adrnmistrator should ensure that there is an e
Indian Enviiuuruehtal Liaisons or other appropriate EPA field presence), to provide direct
fieU assistance to'the Tribes. As much as possible, mis capachyshould be carried outby
'• staff tram Indian Country and who have experience in the eovironmental field working
with Tribal governments, communities, organizations and/or environmental staff.
6) Treming of EPA Staff: ft is important that EPA employees have the necessary
sensitivity, knowledge and understanding^ of Indian affim to fadm^atecomnnnication
between EPA and trjN leutgeniatives. The Office of Indian Affinrs, once established,
wfll promote and coordinate training on Iridianissiies tor Agency managers and staff In
the interim, Asastanjiand Regional AdmmUttratorejreeiicouraged to provide tram
moves the Agency in the direction of better understanding of Indian issues This training
could cover the EPA Indian Policy, EPA's Indian program activities, Tribal sovereignty
and jurisdiction. Tribal environmental needs and activities, the role of Tribal individuals
and organizations and cultural differences that may affect EPA's working relationship with
Tribes. *
7) Communication with Tribes: To promote and facilitate conununication 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 fun consideration should be given to the policies, priorities and concerns of the
affected Tr3>e(s) and/or, where appropriate, affected Tribal members.
8) Grant Flexibility and Streamlining: Given that most Tribes haveft small environmental
staff (if any) to manage various program-specific grants, in order to increase the efficient
use of limited resources, each Assistant and Regional Administrator should, to the extent
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allowed by law, .use available discretion to consolidate issuance and administration of
grants to Tribes and allow for both program operation and program development1 .
9) Resource Investment in Tribal Operations: Some encouraging first steps have already
been taken to increase resources for Tribal operations in the FY -199$ budget High
priority was established for increasing support for Tribal operations at the Annual Planning
meeting in April However, to begin immediately strengthening the Indian program and to
implement the hew-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 Hfudqimrtfrf Program and
Regional priorities to place greater emphasis tm Tribal operations. Recognizing that we
cannot immediately resolve all problems or address all Tribal enviroimiental 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 win 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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tangible environmental outcomes through the CBEP
approach.
• Incorporating CBEP goals, objectives, principles,
strategies, and performance measures into all EPA,
state, and tribal policies and program activities.
How It Will Be Accomplished
EPA will promote its CBEP approach through three
principal strategies:
(1) Reorienting and Building the Capacity of EPA
Programs for CBEP. EPA will implement policy and
rule revisions, establish education and training
programs, identify and leverage resources, and use
other appropriate measures to integrate the principles
of CBEP into all Agency programs.
(2) Building External Capacity. EPA will improve
community and public access to environmental,
economic, and societal data, information, tools, and
training for CBEP. In addition, EPA grants will
serve as a catalyst for state, tribal, and local CBEP
efforts.
(3) Working in Priority Places. EPA will be
involved directly with stakeholders through the
community-based approach in high-priority
locations.
In taking a CBEP approach, EPA will improve the
effectiveness of our environmental programs and regula-
tions. Community-based environmental protection will be
implemented through the following actions:
• Integrating geographically the delivery of our
services and programs, such as issuing permits and
integrating program-specific data.
• Looking beyond our current statutory authorities and
programs to address problems that cannot be solved
by our traditional regulatory approach.
• Creating the flexibility to respond to the needs of
diverse ecosystems and human communities and
help communities reach informed decisions.
• Assessing and managing aggregate data on the
quality of air, water, land, and living resources in a
locality.
• Ensuring that our programs and activities promote
sustainable human, economic, and ecological
communities.
• Increasing our efficiency and effectiveness by
building partnerships with other federal, state, tribal,
and local government agencies; leveraging
resources; and developing better ways of informing,
assisting and involving the public we serve.
PROGRAM
e EPA Indian Program and its Goal
The EPA Indian Program involves significant cross-
Agency and multimedia activities designed to ensure that
EPA's Trust responsibility to federally-recognized tribes is
carried out by assuring the protection of human health,
and the tribal homeland environment, in a manner
consistent with a govemment-to-govemment relationship
and conservation of cultural uses of natural resources.
Importance Of The Indian Program
The responsibilities of the Indian program include
protecting the health of the millions of Indians and non-
Indians residing within Indian Country borders, addressing
the environmental needs of 562 tribal nations, and
safeguarding the natural environment-air, water, and
land-of Indian Country'. The responsibility held by EPA is
critical. American Indians have the worst health statistics
FT^L^-^^Li^-^vi^vr-^-:^
' i«J*-»Jw A f -*"^^"*\li"' '"* ~^2*?*££ff*,~^
• i^v'' J-'*' '*' * '"^^S*t" ' " - -q.; *" ^
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ESS*
in the country and, overall, environmental conditions of
tribal homelands are substandard. Environmental
mitigation in tribal communities is significantly behind
that of non-tribal communities. It is imperative that EPA
enhance its partnership with the tribes and work with
tribes to identify and achieve environmental goals.
What Will Be Accomplished
Key objectives within this process art:
• Achieve adequate environmental infrastructure
within tribal homelands throughout the country.
• Complete the Tribal/EPA Environmental
Agreements. These agreements contain the tribal
environment baseline assessment, tribal
environmental priorities identified by the tribal
government, and EPA's and tribes' commitments to
achieve these priorities.
• Implement fully the 1984 EPA Indian Policy
Statement
• Increase significantly the number of tribes
implementing environmental programs.
• Implement environmental programs (federal or
tribal) within tribal homelands that meet needs
established by tribal environmental baseline
assessments.
• Build capacity and adequate internal mechanisms to
help tribes implement environmental programs and,
in the absence of tribal implementation, establish
means for EPA implementation.
• Establish a mechanism, in partnership with tribal and
state governments, to resolve transboundary issues.
How It Will Be Accomplished
These objectives can be nut through a combination of:
• Increased tribal capacity-building efforts.
• Greater implementation of environmental programs
within tribal homelands.
• Expanded education for EPA employees regarding
tribal environmental issues.
• Increased technical assistance and training for tribal
environmental program managers.
• Continued cross-Agency, multimedia coordination of
Indian program activities by the American Indian
Environmental Office.
Improved coordination with tribes to achieve
environmental goals and priorities identified by
tribal governments in the Tribal/EPA Environmental
Agreements.
ONMENTAL JUSTICE
nvironmental Justice and Its Goal
Although EPA has made significant progress in
achieving healthier, sustainable environments, we
recognize that environmental programs during the past two
decades may not always have benefitted all communities
or all populations within a community equally. Many
minority, low income, and Native American communities
have raised concerns that they suffer a disproportionate
burden of health consequences due to the siting of multiple
pollution sources in their communities. Environmental
programs do not adequately address these disproportionate
exposures to pesticides, lead or other toxic chemicals at
home and on the job. In addition, these communities seem
to lack adequate knowledge and representation in public
policy and environmental decision-making processes. The
goals of the environmental justice program are to ensure
that all people, regardless of race or income, are protected
from disproportionate impacts of environmental hazards
and that the most affected communities have adequate
opportunities to participate in environmental processes.
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EPA REGION 8 POLICY FOR
ENVIRONMENTAL PROTECTION IN INDIAN COUNTRY
I.
The U.S. Environmental Protection Agency (EPA), Region 8,
has developed this document to provide guidance and information
to Regional managers and staff. This guidance is intended to
respond to and clarify questions that are most frequently raised
by our internal and external customers and constituents, relating
to: (1) .Agency protocol in working with federally recognized
tribes, (2) Agency support of federally recognized tribal
governments in building capacity to manage environmental
programs, and (3) Agency positions on environmental program
responsibilities and jurisdiction.
II. BACtkmtODND
In November 1984, Administrator Ruckelshaus formally signed
and adopted an EPA POLICY FOR THE ADMINISTRATION OP ENVIRONMENTAL
PROGRAMS OR INDIAN RESERVATIONS. Subsequently, Administrator
Reilly in February 1990 and Administrator Browner in March 1994
formally reaffirmed the 1984 Indian Policy. Although much was
accomplished in the intervening decade, most of the work of
establishing environmental programs on fnrH »n Reservations
remains to be done. Thus, in recognition of its responsibility
to human health and the environment throughout the Region, Region
B has adopted this Policy to implement the 1984 EPA Indian
Policy.
The overarching task in implementing the 1984 Indian Policy
is to develop environmental programs for Tnflian Country that are
as comprehensive and as effective as the programs now in place in
the rest of the Region. This effort will emphasize the central
role of tribal governments in environmental protection, and will
give first priority to developing EPA/tribal partnerships
patterned after the EPA/state partnerships already in place.
The Region's approach to implementing the 1984 Indian Policy
is presented only in part in the guidance of this policy
document. It will be presented in more specific detail in the
Region 8 Tribal Work Plan and Tribal/EPA agreements called for in
Administrator Browner's directive of July 14, 1994. These
documents are now under development.
III. PRINCTPLES
A. Region 8 will work with tribal governments on a
government-to-government basis.
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B. Region 8 will support the principle of tribal self-
government in the implementation and administration of
environmental
C. Region 8*s primary focus will be to protect human
health ?™* the environment in Tnti*? ?" Country.
D. Region 8 will seek tribal government agreement before
making decisions on environmental matters (other than
certain enforcement actions)1 affecting tribal governments
and/or tribal natural resources. If no agreement can be
reached, then a formal dispute resolution process2 can be
invoked by either Region 8 or the tribal gover
E. Region 8 will assist tribal governments in building
tribal capacity to manage reservation environmental
programs.
F. Region 8 will encourage cooperation between tribal and
state governments to address environmental issues.
6. Region 8 will work cooperatively with other federal
agencies to protect reservation environments.
H. Region 8 will work with tribal governments to encourage
the development of public participation processes as part of
authorized tribal environmental programs.
IV. PROTOCOL TOR WORKIHG WTTH TRTBAL QPPTCIALS
In Region 8's recent reorganization, the Tribal
Assistance ^Program Office was created as a central core
tribal program for overall management and accountability of
the Regional Indian Program. This approach promotes the
direct government-to--government relationship that is the
basis of the 1984 Indian Policy.
This protocol does not govern conduct of criminal
investigations or cri*"!*?*1 enforcement. Such activities are
not undertaken by Region 8.
Region 8 will work with each tribal government through
the development of Tribal/EPA Agreements (TEAS) to determine
what, if any, cultural components each tribe wants to
include in the TEA.
'See Section VI.B.2.d page 12, and IV.B.4, page 3.
2See Section TV.A, page 2.
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3
B. PROCEDURES FOR VISITS OR INSPECTIONS TO RESERVATIONS
1. Regional employees scheduling trips to Indian
Country in Montana will inform the Tribal Assistance
Program Office and • the Montana Operations Office of the
intended inspection/visit.
2. Regional Administrator /Deputy Regional
Administrator non- issue-specific visits to reservations
trill be coordinated by the Tribal Assistance Program
Office including coordinating the pre-visit briefing.
3. Issue or program- specific visits will be
coordinated by the Office responsible for the issue.
Programs and Offices will inform the Tribal Assistance
Program Office of the scheduled visits.
4. Region 8 will notify the Tribal Chair and the
Tribal Environmental Official of inspections in Indian
Country at least seven cal printer days prior to the
inspection. Other criteria and procedures for
unannounced inspections may be developed in Tribal/EPA
agreements. Region 8 will offer entrance and exit
interviews concerning announced inspections to the
appropriate Tribal Chair and Tribal Environmental
Official. This notification may be by telephone unless
the tribe requests other means of notification.
5. In environmental emergency situations in T"^?»"
Country, Region 8 will notify as appropriate the Tribal
Environmental Official of the inspection/visit by
phone.
€. Region 8 employees will take photographs of
reservation areas only for official use and with tribal
permission. The tribe may designate a tribal official
to oversee the photography.
7. If state inspectors request to accompany EPA
inspectors to a reservation site, Region 8 will inform
the Tribal Environmental Official of the state's
request in writing. Region 8 will consult with the
tribe, and where appropriate may defer to the tribe's
conclusion on whether state inspectors will accompany
EPA to the site. This issue may be addressed otherwise
in Tribal/EPA Agreements.
C. PROCEDURES FOR WRITTEN ROUTINE MATTERS WITH TRIBAL
1. Letters to the Regional Administrator from Tribal
Chairs will be answered within ten working days of
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receipt and will be prepared for the Regional
Administrator's signature.
2. If a response cannot be provided by the ten-day
Hoa^nroj a phone call from the Tribal Assistance
Pjt.cxj.Laui Office or the Mrm«-a«a Operations Office will be
placed to the Tribal Chair and/or the Tribal
Environmental Official indicating that the letter has
been received and that a reply is being prepared. An
explanation of the delay and an anticipated date of
reply will be provided.
3. Letters to the Regional Administrator from a
Tribal Chair trill be treated aa controlled
correspondence by the Regional Administrator's Office.
The letters will be assigned to the appropriate ARA or
Office Director.
4. Letters from Tribal Chairs or Tribal Environmental
Officials that involve specific program issues and are
directed to EPA ARAB, the Montana Operations Office or
PJLOUJMUU staff will be answered by program staff for
signature by the appropriate ARA or Office Director, or
his/her designee.
5. Letters concerning inspections in Tnrlian Country
will be directed to the Tribal Environmental Official
with a copy to the Tribal Chair.
6. Grant documents signed by the Assistant Regional
for Technical **y3 Management Services or
his/her designee, will be sent directly to the Tribal
Chair with a copy to the Tribal Environmental Official.
7. Letters of decision involving broad policy issues,
grant and program eligibility (Treatment as a State)
determinations, jurisdictional issues, delegations and
significant enforcement actions (as defined in program-
specific enforcement response policies) will be
prepared for the signature of the Regional
Administrator or his/her designee and sent to the
Tribal Chair. A courtesy copy will be sent to the
Tribal Environmental Officer.
8. EPA notices of inspection form(s) and final
inspection reports will be provided upon completion to
the Tribal Environmental Official. Preliminary results
that identify significant environmental problems will
be sent to the Tribal Chair and Tribal Environmental
Official immediately.
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9. EPA or state inspection reports on sites situated
outside Indian Country that may have an impact on
people or the environment in TyiiHan Country will be
forwarded by EPA to the appropriate Tribal
Environmental Official.
10. EPA or Tribal inspection reports on sites situated
in Tndinn Country that may indicate an impact on people
or the environment outside Indian Country will be
forwarded to the appropriate State Environmental
Official.
11. The disclosure of inspection reports with a tribe
or state will be consistent with regulation and policy
on disclosure of EPA records and confidentiality of
business information 40 CFR Part 2. Region 8 will make
the fullest possible disclosure consistent with the
policy.
D. pROfgnflfiflg FQR TRIBAL VISITS TO REGIONAL OFFICE
1. ARAs and Office Directors will notify the Tribal
Assistance Program Office and the Regional
Administrator/Deputy Regional Administrator of upcoming
visits by Tribal Chairs.
2. Visiting Tribal Chairs will be invited to meet
with the Regional Administrator/Deputy Regional
Administrator, ARAs or the Montana Operations Office
Director, as appropriate.
3. Regional staff will notify the Tribal Assistance
Program Office of tribal official visits so that
additional meetings can be scheduled if requested by
tribal official.
E. PROCEDURES FOR ELEVATION OF ISSUES AND DISPUTE
RESOLUTION
Timely resolution of issues is important and Region 8
recognizes the need for an elevation procedure. If a tribe
requests a timetable for resolution of an issue requiring
Agency decision, a response will be provided by the
appropriate Assistant Regional Administrator (ARA). If a
timely decision or response is not then provided, the Tribal
Chair may elevate the issue to the Regional Administrator.
Region 8 is committed to resolving issues at the Regional
level and strongly encourages tribes to work within the
Regional framework.
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When-an elevation process has begun, the project
manager will keep the Tribal Assistance Program Office
Director informed and involved in the process.
Where tribal agreement and dispute resolution are
called for in thip document in making EPA decisions, every
reasonable effort will be made to obtain tribal agreement.
Region 8 will endeavor to accommodate the tribe to .the
extent the law allows. In cases of continuing disagreement,
the responsible ARA may, to the extent permitted by law and
upon tribal request, refer the issue to the Regional
Administrator, who--following consultation with the tribal
chair, the Director of the American Indian Environmental
Office (AIBO) and the Headquarters program office, as
appropriate--will make a final decision.
Existing Memoranda of Agreement between Headquarters
program offices and the Region will be augmented by this
policy. The Regional Administrator will raise substantive
issues to the appropriate Assistant Administrators
consistent with these MOAs.
TRIBAL CAPACITY BUILDING
Region 8 views tribal governments as the appropriate
party for making decisions and carrying out program
responsibilities affecting the health and welfare of the
reservation population and environment where they can
demonstrate the capability and authority to do so. In order
to achieve the Agency objective of protecting the environ-
ment an*? H^mian health in Tp*MaT* Country, in a manner
consistent wi.th support of tribal self-government, EPA will
assist tribes* in developing the technical, fiscal, and
administrative infrastructure necessary to implement
• protection programs.
EPA is cognizant of the differences between tribes and
states, and among tribes. In assisting tribes in building
environmental capacity, EPA will be sensitive to the unique
qualities of each tribe, including varying customs, beliefs,
environmental protection experience and technical, fiscal,
and administrative infrastructure.
B. BACKGRODMD
The 1984 EPA Indian Policy outlines nine principles for
ensuring that the Agency carries out its responsibilities on
Indian reservations. The third principle asserts that the
•Agency will take affirmative steps to encourage and assist
tribes in assuming regulatory and program management
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responsibilities for reservation lands." This principle
guides Region 6 in its development of a tribal capacity-
building policy which describes objectives that will assist
tribal governments in developing programs and in preparing
to assume regulatory and program management responsibilities
in Tnd-jqn Country.
C. POLICY STATEMENT
Region 8 will provide outreach, education, training,
and technical, financial and legal assistance to develop,
implement, and maintain comprehensive tribal environmental
programs.
1. Objective Is Region 6 will work directly with each
Indian tribe to provide guidance and develop a
Tribal/EPA agreement for building tribal capacity, to
include identification of resources, milestones for
progress, and timetables.
2. Objective 2: Region 6 will develop an integrated
grants process to fund tribal environmental programs.
In each planning cycle, EPA will, where appropriate,
make every effort to reprogram Regional funds, and
request appropriate funding levels from Headquarters
programs as necessary to ensure reasonable progress
toward full tribal program administration, consistent
with the Tribal/EPA agreement developed in Objective 1.
The goal of this integrated approach is to simplify the
grant application and award process and to encourage
each tribe to implement a core environmental management
program tailored to that tribe's specific needs. It is
Region 8's policy to make reasonable progress toward
the necessary funding for every tribe to have the
ability to assess problems, rank risks, develop
adequate infrastructure, and develop a core program.
We will use all available grant authorities to
implement this integrated approach, including multi-
media (General Assistance Program) grants »™* single
media grants to Indian tribes or tribal consortia.
3. Objective 3: Region 8 will provide appropriate
financial and programmatic oversight for each of these
grants based on the needs of the Indian tribe receiving
funding consistent with statutory »*"* regulatory
requirements. As tribes demonstrate continuous
improvement in grants management and program develop-
ment, oversight will be adjusted accordingly. This
oversight will include providing necessary program
specific guidance.
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D.
8
4. Objective 4: Region 8, will initiate activities to
provide training and technical assistance to tribal
governments. Our policy is to provide training to meet
the tribes' needs to build technical, fiscal and
administrative capacity, as identified by the tribes in
consultation with EPA technical staff. This assistance
will be coordinated through the Program Office to
provide process guidance to environmental program
personnel developing technical assistance or training
curricula specific to tribal programs.
5. Objective 5: Region 8 is committed to building
tribal environmental capacity by working with tribes in
the field. We will, in developing Tribal/EPA agree-
ments, determine the appropriate number and scope of
visits to each reservation.
6. Objective 6: Region 8 will make personnel
available through short-term details. Intergovernmental
Personnel Act (IPA) , or similar assignments, to assist
tribes in developing environmental protection programs.
Region 8 will also encourage tribal representatives to
visit both the Denver and Hel ena offices in the same
capacity. Ibis may Include such assignments as short-
term training visits, internship assignments, and IPAs.
Each of the preceding objectives has been identified as
a means to assist tribal governments in building environ-
mental program capacity. Region 8 will incorporate these
objectives into its Annual Strategic, Operating and Budget
Plans and the Tribal/EPA agreements to be negotiated with
each tribe.
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VI. ENVIROMMEKTAL PROTECTION TN INDIAN COUNTRY3
Program Implementation qfflcl Jurisdiction
A. JURISDICTION G
1. Background
The 1984 EPA Indian Policy states clearly that EPA
recognizes tribal governments as the "... primary
parties for setting standards, *»M.**g environmental
policy decisions and managing programs for reservations
consistent with Agency standards and regulations....The
Agency will assist interested tribal governments in
developing programs and in preparing to assume
regulatory and program management responsibilities for
reservation lands....Until tribal governments are
willing and able to assume full responsibility for
delegable programs, the Agency will retain
responsibility for managing programs for reservations."
In accordance with the Agency's national policy,
Region 8 supports tribal government assumption and
ii {uro^r&ms cor
Country, to the maximum extent permitted by law. Until
such programs are in place. Region 8 retains responsi-
bility for direct implementation of environmental
programs for Indian Country in the Region.
Most of the programs for which Region 8 is
responsible are regulatory programs requiring
enforcement of envj ryi™"*1*1^*! standards »™* rules.
Accordingly, jurisdiction is an important factor in
policies and decisions relating to the assumption and
management of regulatory programs in Indian Country.
3This directive uses the term "Indian Country" as defined in
18 U.S.C 1151 to mean "(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 throughout 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." It is cautioned that various federal statutes
may. use or define other terms (e.g., reservations) that will
control the applicability of a particular statute in Indian
Country.
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10
Jurisdiction in Indian Country is a matter of
federal law, based upon the U.S. Constitution,
treaties, statutes and decisions of the federal courts.
Region 8 generally does not give "advisory*
opinions on state and tribal jurisdiction. To date,
Region 8 has given opinions on state and tribal
jurisdiction only when faced with a federal decision,
such as a "Treatment in the same manner as a State"
application or request for program approval, that
requires a prior determination of jurisdiction. In
such cases. Region 8 has based its decision upon its
understanding of the relevant statutes and principles
of Federal Indian Law. me Agency has, in appropriate
cases, consulted with legal experts in the Department
of the Interior and the Department of Justice, and the
Agency has had the benefit of the views of states.
tribes and other interested parties as part of a public
record.
2. Principles
a. The federal government has broad jurisdiction
over pollution sources throughout the United
States, j,ni?i^iflipg TTMH»r\ Country.
b. EPA presumes that, in general, tribes are
likely to possess the authority to regulate
activities which are regulated by EPA statutes and
which affect resources on the reservation.
c. States applying to administer federal
environmental programs within Indian reservations
must adequately demonstrate their jurisdiction to
do so. Through a transition process initiated by
this Policy, Region 8 will begin to issue federal
permits, under the priorities set forth in this
Policy.
d. Region 8 encourages cooperative agreements
between tribes and states for administering
environmental programs in Indian Country, where
this serves the mutual self-interest of the
parties and the environment.
B. PROGRAM IMPLEMENTATION ISSUES
1. Tribal Iinplegien.ta.tiQn of Programs
a. Region 8 will authorize tribal governments to
manage environmental programs in Tnd-ian Country,
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11
if permitted to do so by law and if the tribe
applies and is qualified.
b. Tribal governments are encouraged, but not
required, to assume program responsibilities.
c. Tribal applications for program authorization
will be approved if the applicant meets the
criteria for program approval under the relevant
EPA statutes and regulations. Although Region 8
must be assured that the applicant has met the
Tn-in-tmntn criteria for program effectiveness set
forth in regulations, the Region recognizes the
need for flexibility to respond to the special
circumstances «*«* legal status of Indian Tribes.
d. As stated in the 1984 Indian Policy, where a
tribe is unwilling or unable to assume full
responsibility under a program, "the Agency will
encourage the tribe to participate in policy-
making and to assume appropriate lesser or partial
roles in the management of...[federal, direct
implementation] reservation programs.*
e. Region 8 retains "*pp«"gib 11 * fy for direct
federal implementation of a program in Indian
Country in the absence of an approved non-federal
program. See paragraph B.2.a, below.
f. Where Region 8 has approved a tribal program
or entered into a cooperative tribal/EPA agreement
for the management and/or enforcement of a federal
program. Region 8 will assist and support the
tribe in carrying out its responsibilities under
the program or agreement (including, if
applicable, the exercise of tribal jurisdiction
over non-member pollution sources located on non-
member owned fee lands in Trull an Country). EPA
will maintain criminal enforcement authority for
cases involving Indian lands.
g. Region 8 will look to the Bureau of Indian
Affairs (BIA) and tribes for guidance concerning
the boundaries of reservations and other parts of
Indian Country. Relevant federal agency maps
(e.g., BIA, BUI, USGS) although not legally
definitive, are useful for general planning
purposes. Questions as to the exact location of
specific sites may need to be carefully
researched.
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12
2 . Direct Federal ^nmlpraentation of
a. Region 8 is responsible for direct
implementation of environmental programs for
TprHan country in the Region until tribal
governments are formally authorized to implement
programs, consistent with (1) the criteria set
forth in EPA statutes and regulations, (2) the
principle, reflected in the 1984 EPA Indian
Policy, that tribal governments are the
appropriate non- Federal parties for making
decisions and carrying out program responsibili-
ties affecting TTMH»« reservations, their
environments, and the health and welfare of the
reservation populace, and (3) the objective,
reflected in the 1991 EPA/State/Tribal Concept
Paper, of providing for coherent and consistent
environmental regulation on reservations and
preventing checkerboarding. To the extent
permitted. Region 8 will provide grant or contract
support to tribes to manage all or part of the
Federal program. In carrying out programs,
Region 8 will be guided by Tribal/EPA agreements.
b. Region 8 will establish priorities for its
direct federal implementation activities by
addressing as its highest priority the most
serious threats to public health and the
environment in Indian Country that are not
otherwise being adequately addressed
subst an tively . this priority implements the
mandate of the EPA and the principle that
'Region 8's primary focus will be to protect human
anrt the gnvj ynmn»T^ t- within
reservations. '
c. Standards: Region 8 will work with tribal
governments in the development and adoption of
environmental standards (e.g., water quality
standards) for Indian Country under their control.
All standards must meet applicable federal
requirements. If agreement on standards cannot be
reached with the tribe, the responsible ARA will
invoke the dispute resolution process described in
IV. E, page 5.
d. Program Management - (other than enforcement) .
Region 8 is responsible for program management in
Indian Country. Region 8 will work with the
tribal government, through the Tribal /EPA
agreement process, to reach agreement on program
management. If agreement on program management
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13
cannot be reached with the tribe, the responsible
ARA will invoke the dispute resolution process
described in IV. E, page 5.
Region 8 nay provide grant or contract support (as
appropriate and to the extent permitted by
applicable law) to a tribe to manage all or part
of the federal program. Region 8 nay provide
grant or contract support to a state to manage all
or part of a federal program if the tribe and
state have reached a freely negotiated/mutually
agreeable, written arrangement for the management
(other than enforcement actions) of a federal
program in Indian Country, to include funding
support to the state.
e. Enforcement Actions. Region 8 has primary
enforcement authority and responsibility until
primacy is formally granted to a tribal government
that has demonstrated adequate jurisdiction over
« Country.
8 will strive to ensure compliance with
environmental statutes and regulations in Indian
Country an set forth in the 1984 TTVH?P Policy
which states:
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
training, technical support and
consultation as necessary to enable
tribal facilities to comply. Because of
the distinct status of TH*-!^ 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: (l) 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 facilities in
Indian Country are clearly owned or
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14
managed by private parties and
there is no substantial tribal
interest or control involved, the
Agency will endeavor to act in
cooperation with the affected
tribal government, but will
otherwise respond to noncompliance
by private parties in Tnrtian
Country as the Agency would to
noncompliance by the private sector
elsewhere in the country. Where
hfiff a aM
proprietary interest in, or control.
over, the privately owned or
managed facility, Region 8 will
respond as described in the
paragraph above.
Region 8 will work with the tribal government, in
the Tribal/EPA Agreement process, to reach
agreement on federal enforcement. If agreement on
enforcement issues cannot be reached with the
tribe. Region 8 will follow applicable EPA
enforcement guidance, and where appropriate, the
responsible ARA may invoke the dispute resolution
process described in IV. E, page 5.
Region 8 may, where appropriate, enter into three
party Region 8/tribal/state cooperative
enforcement agreements. See Part VII Cooperative
Agreements. Region 8 will not provide funding
support for enforcement activity in T>rH?™ Country
without a cooperative enforcement agreement.
Where any entity other than the tribe takes
enforcement action in Indian Country without a
defined basis for asserting jurisdiction, EPA will
assert federal jurisdiction.
f. Permits. Region 8 is responsible for issuing
permits in Tru^a™ country until a tribal
permitting program expressly applying to Indian
Country is formally authorized. Region 8 will
carry out thin process in a prioritized manner,
beginning with (1) facilities that must be but are
not now permitted, emphasizing those that pose the
greatest threat to public health or the environ-
ment; (2) facilities that are now permitted by a
state where the standards being enforced by the
state are significantly less protective of public
health or the environment than tribal or EPA
standards applicable, to such facilities, or are
otherwise substantively Inadequate; and (3)
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IS
instances where the tribal government raises
important considerations. Over time and after
assessment by Region 8 of the initial implement a -
tion. Region may add other criteria for
prioritizing permit issuance. Region 8 will work
with tribal governments and in consultation with
affected states and permittees to compile and, as
appropriate, revise a master list, by program,
with a schedule for proposed issuance. EPA will
ensure regular compliance inspections and
appropriate enforcement of such permits.
g. Timeliness. The pace of federal program
implementation will be resolved in EPA/Tribal
Agreements.
VII. TRIBAL/STATE/EPA COOPERATIVE
A.
Region 8 encourages tribal/state/EPA cooperative
agreements as provided in the 1984 Tnrt-tan Policy. The EPA
American Tndlarc Environmental Office issued .policy guidance
dated May 22, 1995 on tribal/state cooperative agreements.
The policy guidance includes the following guidelines:
1. First and foremost EPA should be building tribal
capacity and comprehensive tribal environmental
programs so that tribes can truly negotiate with states
on an equal level to mutually determine a course of
action to adequately protect common resources.
2. Agreements should be recognized by the tribe as a
reasonable option to address their environmental
concerns and the tribe should initiate the process when
the agreement is being developed to address tribal
need.
3. EPA should provide financial and technical support
to the tribes during the development and implementation
of the agreements to help ensure that the tribes are
truly in a position to freely negotiate and fully
address their environmental concerns.
4. Agreements do not replace formal promulgation of a
federal program or a delegation/authorization of a
tribal program. Agreements are simply one tool, among
many, for program implementation. The programs to be
carried out under such agreements must still meet
federal minimums/standards as set forth in the Code of
Federal Regulations.
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16
5. Agreements do not abrogate the Agency's statutory
and trust responsibilities for protecting tribal health
and environments in a manner which does not endanger or
compromise fTiTKfcnmf*nt-a1 governmental rights of the
tribe.
6. Agreements do not, independent of explicit
Congressional intent or judicial finding, confer
regulatory jurisdiction.
B. Region 8 is responsible for ensuring that regulatory
programs are established throughout Tndian Country under
each of the Agency's "delegable" programs (e.g., NPDES). As
may be required by regulation. Region 6 trill provide public
notice and comment and explain how these programs meet the
substantive and procedural requirements set forth in the
relevant regulation (e.g., 40 CFR Part 123).
C. In promulgating direct, federally-implemented programs,
Region 8 will accommodate cooperative agreements (to the
extent permitted by applicable law) between a tribe and a
state where this serves the mutual self-interest of the
parties and the environment. If, after review4, Region 8
finds that these agreements axe freely-negotiated and
mutually-beneficial. Region 8 will honor these agreements,
provided that;
1. The tribe and state agree upon consistent
environmental standards and regulatory requirements
within reservation boundaries and adjacent Indian
Country, except where environmental concerns call for
varying standards.
2. Enforcement of standards and regulatory require-
ments in Indian Country is the lead responsibility of
the tribe or Region 8. (Where a tribe cannot
demonstrate jurisdiction over one or more reservation
pollution sources, the Agency will retain enforcement
responsibility for those sources.)
4Such reviews should consider, at a minimum (a) whether the
tribe has sufficient technical capability needed to negotiate
effectively, (b) whether there are any inequitable factors that
would impose duress on the tribe or otherwise place it in a
disadvantages position, and (c) whether the tribal/state
agreement adversely affects or compromises the interests of
other, similarly-situated tribes. If a tribe requests assistance
from Region B to ensure a fair bargaining position. Region 8 will
try to provide such assistance.
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17
3. Where the agreement calls for the tribe and/or
state to enforce, the tribe or state is able to
demonstrate adequate jurisdiction to carry out the
assigned enforcement role.
D. Region 8 participation in cooperative agreements will
be governed by any national guidance that EPA nay develop in
the future.
William P./Yellowtail Date
Regional Anministrator
DISCLAIMER NOTICE TO THE PUBLIC: The policies set out above are
not final Agency action, but are intended solely as guidance.
They are not intended, nor can they be relied upon, to create any
right, benefit or responsibility enforceable by any party in
litigation with the United States. The Agency reserves the right
to change this guidance at any time.
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FILE COPY
MEMORANDUM OF UNDERSTANDING
AMONG TEE
BUREAU OF INDIAN AFFAIRS
ENVIRONMENTAL PROTECTION AGENCY
HOUSING £ URBAN DEVELOPMENT
•AND
INDIAN HEALTH SERVICE
I. Statement of Purpose
The Bureau of Indian Affairs (BIA), the Environmental
Protection Agency (EPA), the Department of Housing £ Urban
Development (HDD) and the Indian Health Service (IHS), all have
responsibilities and interests pertaining to the protection of the
environment and human health as it relates to pollution control on
Indian lands. It is the purpose of this Memorandum of
Understanding (MOU) to identify areas of mutual interest and
responsibility of the four agencies and to encourage the
coordination of the agencies* respective activities to promote the
most efficient and integrated utilization of resources. It is
anticipated that the Regional and Area Offices of the respective
signatory agencies nay desire to develop more specific MOUs
pursuant to the general agreements established in this document
II. Findings
A. Scope of Respective Authorities
All of the agencies have interest in the effects on human
health and the environment from pollutants. As a result, each
agency conducts or supports environmental health activities in one
or more of the following areas:
Air Quality Management
Radiation Hazard Identification and Mitigation
Hater Quality and Critical Habitat Management
Surface Water, Ground Hater & Drinking Hater Protection
Underground Storage Tanks
Hazardous Materials Management, Emergency Response and
Community Right-to-Know
Solid Haste Management
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Pesticides & Toxic Substance Use and Management: and Endangered
Species Protection
B. Description of Agency Mission
(Zt is to be noted that BXA, HDD, and IH8 are neither
regulatory nor enforcement agencies on environmental matters
while EPA is.)
1. BXA*s programs are associated with Indian trust resources
and include environmental quality through the authority of the
trust, and the National Environmental Policy Act of 1969, which
establishes procedures that are binding on all Federal agencies.
The primary requirement is that an Environmental Impact Statement
(EIS) be prepared for every major Federal action significantly
affecting the quality of the human environment. BIA must also
apply the Council on Environmental Quality's (CEQ) regulations and
the Department of the Interior's implementation procedures. BIA
is responsible for assuring that all of its projects comply with
all applicable statutes, whether or not projects are Federally
initiated or EPA has enforcement authority. BIA must also comply
with all laws related to cultural resources and threatened and
endangered species.
2. EPA has regulatory and enforcement authority on Indian
reservations and authority to expend financial resources on Indian
lands under various environmental statues. Statutes authorizing
EPA actions on Indian lands include the Clean Air Act (CAA), Clean
Water Act (CWA), the Emergency Planning and Community Right to Know
Act (EPCRA), Federal Insecticide, Fungicide and Rodenticide Act
-------
(FIFRA) , Resource Conservation and Recovery Act (RCRA), Safe
Drinking Water Act (SDWA), Comprehensive Environmental Response,
compensation, and Liability Act (CERCLA) as amended, and the Toxic
Substances Control Act (TSCA). EPA expects that the Clean Air Act
will be amended in 1990 to include authority to treat tribes as
states for air quality purposes and to authorize the Administrator
to promulgate rules implementing this authority. EPA will either
retain its appropriate environmental management authorities or
authorize Tribal governments on Indian lands to administer their
own regulatory programs on a case by case basis depending upon the
language of the particular statute and tribal capability with
appropriate consideration for the special needs of tribal
governments. The programs will be operated in a manner consistent
with the provisions of the EPA Indian Policy and Implementation
Guidance which were issued on November 8, 1984. EPA is also
responsible for NEPA compliance for its projects on Indian lands.
3. HUD provides financial and technical assistance, under the
United States Housing Act of 1937 as amended, in the development
and management of low income housing in Indian and Alaska Native
areas. This includes funding for appropriate sanitation facilities
for HUD assisted housing projects. HUD conducts a Community
Development Block Grant (CDBG) program which is available to
tribes. For its projects on Indian lands, HUD insures the
compliance of Indian Housing Authority (IHA) with all requirements
of NEPA, Section 1091 of the Stuart B. McKinney, Homeless
Assistance Amendments Act, the Clean Water Act, and the
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requirements to bam lead in water plumbing and distribution pipes
contained in the Safe Drinking Water Act.
4. IRS has the primary responsibility for improving the
health of and preventing disease and injuries among the American
Indian and Alaska Native population through the development and
implementation of a comprehensive environmental health program on
Indian lands. The Division of Environmental Health (DEH) of the
IHS conducts activities dealing with air pollution, community
injury prevention, emergency operations, epidemiology, food
protection, hazardous materials, home and community health,
institutional environmental health, occupational health, operation
and maintenance assistance, radiation, recreational sanitation,
safety, vector control, waste disposal (including solid waste), and
water supply. These activities include surveys, technical
assistance, investigations, sampling, training, control and
construction. The DEH may carry out these activities directly, or
the tribes may undertake them with the assistance of IHS, under the
Indian Self-Determination Act, P.L. 93-638 as amended. The purpose
of the IHS Sanitation Facilities Construction Program (authorized
by P.L. 86-121, the Indian Sanitation Facilities Act and reaffirmed
by P.L. 100-713, the Indian Health Care Amendments of 1988) is to
take direct action to provide sanitation facilities that improve
the health status of Native Americans. These facilities can
include water supply, sewage treatment or solid waste management
systems. IHS does not operate or maintain community water, sewage
or solid waste facilities, but provides training and technical
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assistance and may provide the necessary equipment in conjunction
with new facilities or major renovation projects for Indian tribes
#
to perform these activities. IHS prepares NEPA compliance
documents for its projects on Indian lands.
C. Areas of Primary Mutual Interest
Listed below are specific program areas of special interest
to BIA, EPA, HDD and ZHS. General responsibilities are outlined
under each area.
1. Air Quality Management
a. BIA - Technical Assistance, Coordination with
EPA/Tribes
- Provides some funding for Air Monitoring
b. EPA - Provides technical assistance and training
for planning and management activities
- Provides monitoring and assessment of air
quality on Indian lands
Provides Section 105 (Clean Air Act) grant
assistance to tribes and demonstration grants
for Indoor Radon Abatement
- Provides assistance in implementing the
Prevention of Significant Deterioration on
Indian Lands
c. HUD - IHA Compliance with Tribal or Local
Construction Standards which Includes
Assuring Wood or Coal Stoves Meet Appropriate
Air Quality Standards
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d. IHS - Investigation of Potential Health Problems,
Monitoring, Technical Assistance,. Compliance
with Local Construction Standards
e. Potential Overlap
Technical Assistance (BIA, EPA, IHS)
Monitoring (EPA, IHS, BIA)
2. Radiation Hazard Identification and Mitigation
a. BIA - Technical Assistance, Coordination with
EPA/Tribes, Monitors Radionuclides in BIA
Operated Systems, Considers Potential
Problems such as Radon in Home Design
Conducts Studies in accordance with the Radon
Abatement Act of 1988
b. EPA - Tribes may be Included in the National
Household Radon Survey
• May Provide Canisters & Technical
Assistance for Tribes or IHS to Conduct Radon
Surveys As Resources Permit
Provides Consultation on Appropriate Radon
Remediation Activities
Provides Assistance in Monitoring of
Radionuclides in Water and Radioactive
Releases in General
Provides Training to Tribes and other
agencies in Radon Remediation
- Provides Technical Assistance and
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Consultation on Releases of Radioactive
materials
c. HUD - Considers EPA/IHS Recommendations for Site
v
Approval
• Considers EPA/IHS Recommendations on Radon.
Develops a Policy Based on EPA Guidelines to
Prevent Harm to Human Health from Radon
Exposure
d. IHS - Assistance in Radon Surveys of Homes on
Reservations
Provides Technical Assistance on All
Radiation Issues
Conducts Surveys of IHS owned facilities in
accordance with the Radon Abatement Act of
1988
Assistance in Monitoring of Natural Radiation
Sources
Performs Compliance Testing of Radiation
Equipment in Health Care Facilities
Provides Training
Assists Tribes in initial Monitoring of
Radionuclides in Water
e. Potential Overlap
Technical Assistance (BIA, EPA, IHS)
Radon Surveys (EPA, IHS)
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- Radon Abatement Surveys (BIA, IHS)
Monitor Radionuclides in Water (EPA, IHS,
BIA)
Hater Quality and Critical Habitat Management
Water Supply Systems, Waste Water
Treatment, Surface Water, Groundwater and
Drinking Water Protection and Critical
Habitat Management
a. BIA -
General Activities
Sampling, Testing and Monitoring of Surface
Water and Ground Water for Water
Quantification Studies, for Uses Including
Livestock, Wildlife, Instream Flow,
Municipal, Industrial Recreation, Religious,
Cultural and Diversionary Trespass Issues
Operation and Maintenance (O&M) for BIA
Facilities
WSS and WWT for BIA School/Agency Facilities
Provides Training to Tribes for Water
Management
Provides Technical Assistance and
Consultation on Tribal Jurisdictional Issues
Safe Drinking Water Act
- Inventory and Maintenance of Water Supplies
for BIA School/Facilities
8
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Coordinate with EPA and other Agencies on
Underground Injection Control Direct
Implementation Programs
Clean Water Act
Technical Assistance to Tribes in Defining
a Scope of Work as Part of an Application for
EPA 106 Funds
Assists Tribes in Obtaining EPA Section 402
and 404 Permits
- Develops Best Management Practices (BMPs) for
Control of Non-Point Source Pollution on
Trust Lands
b. EPA -
General Activities
Assist Tribes in Developing Tribal Capacity
to Regulate
- Direct Implementation for Tribes not Meeting
Statutory Requirements for Treatment as a
State or not Seeking Authorization to
Implement EPA Programs in Balance with other
Agency Priorities
Training of Tribal Staff in Water Quality
Monitoring Procedures
Maintenance of Ground Water and Surface Water
Quality Data
- Provide Funds for Demonstration Projects
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Safe Drinkj-ncr Water Act
Regulates Public Water Systems (PWS) or
authorizes Tribes Treated as States to Assume
Primary Enforcement Responsibility and can
Provide Tribal Grants to Tribes Treated as
States
Sole Source Aquifer Protection
Underground Injection Control Program
Implementation: Authorizes Tribes Treated
as States to Assure Primary Enforcement
Responsibility and Can Provide Tribal Grants
to Tribes Treated as States
- Well Head Protection
Works With Tribes in Developing Safe Drinking
Water Programs
Clean Water Act
National Pollutant Discharge Elimination
System (NPDES) Permits
Clean Lakes Programs
Enforcement & Regulation of Surf ace Water
Standards
Wetlands Protection
- Section 401 Permit and License Certification
- Non-Point Source Pollution Prevention
- Works with Tribes in the Development of
Tribal Water Quality Programs and Authorizes
10
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Tribes Treated as States to Carry out
Appropriate Functions
- Award Tribes Treated as States 106 Water
»
Quality Management Grants
Waste Water Treatment System Construction
Grants
c. HOD -
General Activitj.es
- Funds On-Site Sanitation Systems for HUD
Assisted Housing Through Housing Authorities
• Water and Sewage Project Funding through CDBG
Program
•tf
- Provides Funds to IHS under Agreement
with HOD and the Housing Authorities for
Construction of Off-site Sanitation
Facilities Which May Include Equipment for
Operation and Maintenance Activities
- Bans Lead in Water and Distribution Pipes,
Solder and Flux in HOD Assisted Property
Requires Funded Housing Projects to comply
with Wetlands Provisions of the Clean Water
Act
d. IHS -
General Activities
Off-site Sanitation Facilities
11
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Construction for HUD Homes
Construction of Sanitation Facilities for
*
BZA Housing Improvement Program (HIP),
>
Tribally Funded Programs, and Existing Homes
(On and Off-Site Facilities)
Well Construction
Technical Assistance for On-site Hater and
Sewer Facilities
Assist Tribes in Obtaining EPA Permits
Technical Assistance to Tribes to Address
Provisions of SDWA t CWA
Training of Homeowners
Conducts Special Studies Such as Utility Rate
Studies
Provides Technical Assistance in the
Establishment of o & M Organizations, As Well
As, Equipment and Tools for O&M
Surveys of Indian and BIA Hater and Haste
Hater Systems
• Maintenance of Data System for Sanitation
Facilities
Safe Drinking Hater Act
- Design and Construction of Drinking Hater
Facilities, Distribution and Storage
Facilities for Domestic Use
Training of Tribal Staff in Operation and
12
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Maintenance of Sanitation Facilities
Clean Water Act
Design and Construct Haste Hater Collection,
Treatment and Disposal Facilities for
Domestic Use
Training of Tribal Staff in O&M of Sanitation
Facilities
.•e. Potential Overlap
Hater Quality Testing as Appropriate or
Required (BIA, EPA, IMS)
Funding Hastevater Facilities (EPA, HUD,
IHS,)
Funding of Domestic Drinking Hater Facilities
(HUD, IHS)
Assistance in Obtaining Additional Sources
of Funding (BIA/ EPA, IHS)
Technical Assistance to Address Provisions
of SDWA and CHA (BIA, EPA, IHS)
Assist Tribes in Obtaining EPA Section 402
and 404 Permits (BIA, EPA, IHS)
Assist Tribes in Identifying BMPs for
Protection of Hater Quality/Hater
Supplies (BIA, EPA, IHS)
Critical Habitat Management (BIA, EPA)
Maintenance of Hater Quality Data
(BIA, EPA, IHS)
13
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Assist Tribes in Applying for EPA Grant
Programs (BXA, EPA, IHS)
•
4. Underground Storage Tanks
a. BIA - Inventory Underground Storage Tanks (UST)
Owned or operated by BIA
Monitoring of EPA's UST Pilot Projects
b. EPA - Implement Subtitle I of RCRA
Leaking Underground Storage Tank Trust Fund
Supported Enforcement and Corrective Action
Activities
c. HDD - None
d. IBS - Inventory of UST Owned or operated by IHS
Monitor EPA's UST Pilot Projects and UST
Corrective Actions (with EPA and Tribes)
e. Potential Overlap
Inventory of UST's (BIA, EPA, IHS)
Monitoring of EPA's UST Pilot Projects and
UST Corrective Actions (BIA, EPA, IHS)
5. Hazardous Materials Management, Emergency Response and Community
Right-to-Know
a. BIA - Technical Assistance, Surveys, Testing,
Monitoring, Facilitate Non-National Priority
List (NPL) Cleanup, Emergency Response
b. EPA - Enforcement, NPL Cleanups, Emergency
Response, Pre-remedial Evaluation,
Cooperative Agreements with Tribes, Technical
14
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Assistance
- Delegation of Hazardous Waste Programs to
Qualified Tribes
Training of Tribal Staff
Provides Technical Assistance to Tribes
Including Consultation Concerning the
Development of Tribal Implementation of the
Emergency Planning and Community Right to
Know Act
- Conducts Community Relations Activities at
Superfund Sites
c. HUD - Require the Indian Housing Authority, Their
Contractors and Agents on HDD Assisted
Housing Projects to Comply with Local
Standards Which Could Include Disposal of
Some Hazardous Materials
d. IKS - Technical Assistance
- Surveys £ Testing
- Emergency Response which is Limited to such
Activities as Identification, some
Monitoring, Surveillance, etc.
Identifying and Monitoring Hazardous Waste
Streams in Health Care Facilities Including
Infectious Waste Disposal
- Training of IHS and Tribal Staff Regarding
Hazardous Materials, Including the Community
IS
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and Worker Right-To-Know Laws
e. Potential Overlap
Technical Assistance (BIA, EPA, IHS)
i
Testing and Site Assessment (BIA, EPA, IHS)
Emergency Response (BIA, EPA, IHS)
Cooperation on Operation and Maintenance of
Superfund Remedies (BIA, EPA, IBS)
6. Solid: Haste Management
a. BIA - Technical Assistance to Tribes (usually
tribally owned and operated facilities)
Operates Sites at Some BIA Facilities
b. EPA - Sets National Standards for Sanitary
Landfills Design and Operation
• Technical Assistance and Training
Technical Assistance on Solid Waste
Management
• Technical Assistance on Solid Haste Program
and Regulation Development
Limited Grant Support for Tribal solid
Haste Management Planning
c. HUD - Solid Haste Project Funding Through community
Development Block Grants
Funding for Pro Rata Share of Solid Haste
Facilities to Serve HUD Assisted Housing
Projects
d. IHS - Assists Tribes in Development of Solid Haste
16
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Management Plans
- Provides Funding as Resources Permit for
Solid Waste Projects
Assists Tribes in Identifying and Obtaining
Funds from Other Sources
Surveys of Solid Waste Disposal sites
Including BIA Operated Sites
- Surveys of Solid Waste Management Needs
- Training and Technical, Assistance in the
Operation of Solid Waste Management Projects
e. Potential Overlap
Technical Assistance (BIA, EPA, IBS)
Solid Waste Management Plan Assistance (BIA,
EPA, IBS)
Funding of Solid Waste Projects (HUD, IHS)
7. Pesticides & Toxic Substance Use and Management
a. BIA - Approvals for the use of Restricted Use
Pesticides, Training of Pesticide
Applicators, Review of Pesticide Use
Patterns, and Ensure Protection of Endangered
Species
Asbestos Surveys and Remedial Action in BIA
School
b. EPA - Regulation of Pesticides and Chemical
Substances
17
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- Cooperative Agreements Grants to Qualified
Indian Organizations and Individual Tribes
*
where Required Authorities Exist for
»
Enforcement and Pesticide Applicator
Certification
- Grants to Remove Asbestos from Indian
Schools
Training for Enforcement Inspectors
Endangered Species Protection Compliance,
Groundvater Protection, and Agricultural
Worker Protection
c. HDD - Require IHA to comply with Lead-Based Paint
Hazard Elimination Rule of June 6, 1988 and
Section 1088 of the McKinney Amendments Act
of 1988
d. IHS - Asbestos Monitoring in IHS and Tribal
Facilities as Appropriate
Remedial Action in IHS Facilities
Technical Assistance Regarding Pesticide
Usage and Disposal and Endangered Species
Protection
e. Potential Overlap
Asbestos (BIA, EPA, IHS)
Pesticides (BIA, EPA)
Endangered Species Protection Groundwater
Protection, Worker Protection (EPA, BIA, IHS)
18
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III. Interaaencv Actions
The following actions are agreed to:
1. BIA, EPA, HUD, and IKS will work cooperatively with each other
at Headquarters and in the Regions/Areas, and in close
consultation with tribal governments, to coordinate
environmental programs affecting Indian lands. Where
applicable, and within the constraints of available resources,
each agency will:
a. Participate in headquarters, regional and local level
information exchanges to keep abreast of the other
agencies' program activities and regulations and notify
other agencies of its own program activities, regulations
and future plans.
b. Cooperate in providing program services to tribal
governments.
c. Provide training and technical assistance to each other
and to Tribal representatives in the area of each
agency's special expertise.
d. Collaborate on overlapping responsibilities.
e. Coordinate to the greatest extent possible and integrate
where feasible, the provision of funding assistance to
tribal governments, where the funding authorities of the
four agencies are combined or complementary.
2. BIA, EPA, HUD, and IHS will continue to identify and develop
19
-------
coordination in these areas of environmental protection.
Supplemental agreements or actions specific to program
•
coordination in each of the above areas may be prepared, as
»
appropriate. Potential overlap areas may be addressed at the
area/region or headquarters levels.
BIA, EPA, HDD, and IBS will encourage and educate their staffs
in the use and implementation of the terms of this MOU. Where
applicable, tribal and/or state agencies may be included as
i
signatories to supplemental agreements.
IV, Duration of
This MOU shall continue in effect until BIA, EPA, HDD or IHS
provides written notice of termination. Notice shall be given to
the other parties at least thirty (30) days in advance of the
termination date. This document may be updated and periodically
amended with the concurrence of all parties. This document does
not cancel any previous MOUs or Agreements.
V.
Mo routine reports are required. However, quarterly meetings
will be called by BIA at headquarters and held among the parties
to discuss implementation of this MOD. Additional meetings may be
called as necessary by any signatory agency. Minutes will be taken
and distributed. Where appropriate, BIA may also call quarterly
meetings at the Area/Regional where all parties are in agreement
20
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that such meeting* would be beneficial. Minutes of those meetings
will also be taken.
NOV
igtant/Secretary - Indian Affairs
AN i 5 IS9|
Deputy Mm ip|/ttrajfce^ - Environmental Protection Agency Date
c and Indian Housing
Date
ndian Health Service
/J
Date
7/3 J-li
Assistant Secretary for Community Planning
and Development
Date
21
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f f\ \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
S ~*"~""' ? WASHINGTON. D.C. 2O460
MAR 26 1998
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Final Distribution of Fiscal Year 1998 General Assistance Program Funds
FROM: Robert Perciasepe A / j
Assistant Administrato/^in//'
TO: Regional Administrators, Regions 1-2, 4-10
On March 4, 1998,1 wrote to you and asked for your comment on a proposed distribution
of grant funds authorized under the Indian Environmental General Assistance Program (GAP) Act
of 1992. Kathy Gorospe and I have reviewed the comments I received and I am pleased to
provide you with a final distribution of FY 1998 GAP funds (see Attachment 1).
As described in my March 4 memorandum, Kathy and I considered the guiding principles
developed by the Tribal Caucus of the EPA Tribal Operations Committee (see attachment 2) and
tried to balance two principles that, to some degree, are in tension with each other. On the one
hand, I have continued to increase, the equity in distribution of GAP resources, so that many more
Tribes have an opportunity to receive EPA assistance as they build environmental programs. At
the same time, I want to ensure that Tribes in all parts of the country can continue building
environmental programs with GAP assistance to address their identified environmental needs For
1998,1 have decided that raising the "cap" on the amount of funds that any Region receives to
$11 OK on a per-Tribe basis provides the best balance between these principles. As in past years. I
ask you to also consider the Tribal Caucus' principles and the best information you have on Tribal
environmental priorities as you manage the FY 98 GAP resources.
I look forward to working with you to continue building a strong Tribal/EPA partnership
for public health and environmental protection in Indian country. Please do not hesitate to call me
or Kathy Gorospe if you have any questions.
Attachments
cc: Members of the Tribal Caucus, EPA Tribal Operations Committee
Senior Indian Program Managers
National Indian Workgroup
Ftecyctod/ltecyclabto .Prrted w«h Vegetable * • -v.~ •-, Hocycted Paper <40% Poaconsumer)
-------
ATTACHMENT 1
FY1998 GAP ALLOCATION
REGION
ONE
TWO
FOUR
FIVE
SIX
SEVEN
EIGHT
NINE
TEN
TOTAL
TRIBES
9
7
6
34
65
9
27
140
268
565
%(TMl
6.37
4.96
4.25
24.07
46.02
6.37
19.12
99.12
18973
400
POP.
11.340
18,774
22.257
121,984
395.361
15,719
228,041
399,599
346,718
1.559.793
%(P*.5»
0.36
0.60
0.71
3.91
12.67
0.50
7.31
12.81
11.11
50
ACRES
271,719
118,199
433,691
1.386.142
4,542,122
107.913
15,093,625
27.910.722
7,194,087
57.058.220
%A
0.48
0.21
0.76
2.43
7.96
0.19
26.45
48.92
12.61
100
TOT.
7.21
5.76
5.72
30.41
66.65
7.06
52.88
160.84
213.46
550
%TOT.
0.0131
0.0105
0.0104
0.0553
0.1212
0.0128
0.0961
0.2924
0.3881
1.0000
SHARE
% SHARE + BASE
$380,046 $1.380.046
$303,805 $1,303,805
$301,518 $1,301,518
$1,602,650 $2,602.650
$3,512,594 $4,512,594
$372.314 $1,372.314
$2,786,711 $3,786,711
$8,476.418 $9,476,418
$11,249.343 $12,249,343
$28.985.400 $37.985.400
CAP
EFFECT
$990,000
$770,000
$660,000
$2.602,650
$4,512,594
$990.000
$2,970,000
$9.476.418
$12.249,343
$35.221.005
REVISED
DIST
$990.000
$770,000
$660.000
$2.865.533
$5,088.763
$990,000
$2,970.000
$10.171.610
$13,479.494
$37.985.400
AVAILABLE
FUNDS
$38.585.400
BASE
FUNDING
$1.000.000
NATIONAL
SHARE
$600.000
CAP PER
TRIBE
$110,000
REDISTRIBUTE
AVAILABLE
$2,764,395
1 10AKCAP WK401/14/98
-------
ATTACHMENT 2
Guiding Principles for Allocation of
EPA Indian General Assistance Funds
1. AfltribtssiiaU hare an eqoaionportnnirj for general assist
Indian EnTirnnmrntai General
2. EPA-Indian Environmental General ft uistamiinimli should be
, aBocitcd on me basil of neeo^ as defined by fte-Tribcswit^
legal constraints of PubBc Law 102-497 as i
3* FtoodBsnatt be expended for program development as affined by
tha tribe* •niita thff lend FMnlr*>niffnty of tfic arti
4. IbegnurtiDg program (application, ftmdiiifaSootioii, grant
iequlieiaeiiti, etc,) process shall be oriented to oatomer service.
imiiinciit relating to and the ftmriainetttat prtpdpIeB of self-
6. Proposed ^M^tiiftrtoinyio^ for tfn* aDocatioB of EPA*
Eiivirunmiiitai General Anistance Program fladtDg Aoold gam.
the acceptance and rapport of the Tribes aad foOow standard rote*
matin* procedures.
Per our TOC tdeconf erence on December 12. Please comment* I wffl
compile 1hf yimira^n** and fax out another draft. A-final Tersion ifffl be
adranced to EPA.
-------
(b) Purpose of program. Performance partnership grants enable Tribes and Intertribal Consortia
to combine funds from more than one environmental program grant into a single grant with a
single budget. These recipients do not need to account for Performance Partnership Grant funds
in accordance with the funds' original program sources; they need only account for total
Performance Partnership Grant expenditures. The Performance Partnership Grant program is
designed to:
(1) Strengthen partnerships between EPA and Tribes and Intertribal Consortia through
joint planning and priority-setting and better development of resources;
(2) Provide Tribes and Intertribal Consortia with flexibility to direct resources where they
are most needed to address environmental and public health priorities;
(3) Link program activities more effectively with environmental and public health goals
and program outcomes;
(4) Foster development and implementation of innovative pollution prevention,
ecosystem management, and community-based environmental protection strategies; and
(5) Provide savings by streamlining administrative requirements.
(b) In order to include funds from an environmental program grant listed in §35 JO 1 (a) of this
subpart in a Performance Partnership Grant, Tribes and Intertribal Consortia must:
(1) Meet the requirements for each environmental grant program from which funds are
included in the Performance Partnership Grant
(2) Apply for the grant
(3) Obtain the Regional Administrator's approval of the application.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 20 !995
OFFCEOF
WATER
MEMORANDUM
SUBJECT: Final EBA/Tribal Agreements Template
^> JU,-~' <£
FROM: rTerry Wil'liaris, Director
American Indian Environmental Office
TO: 'Assistant Administrators
Regional Administrators
General Counsel
Regional Counsel
The attached EPA/Tribal Agreement Template was developed in
response to the Administrator's July 14, 1994 Tribal Operations
Action Memorandum which called for the establishment of workplans
between the Regions and Tribes. These "workplans11 are now
referred to as "Agreements" in part — to reflect the need for
development by partnership, flexibility and-revisitation.
The Template was developed due to many comments that a
general framework was needed to provided a common set of
principles and consistent factors to include in the Agreements.
Discussions held at the last National Indian Workgroup meeting,
attended by EPA Headquarters, Regional and Tribal representatives
to the Tribal Operations Committee, were the basis of an initial
draft. A review period was held on that draft and comments have
been addressed in the final document.
Regions have been asked to submit schedules and proposed
approaches for completing these Agreements. For this reason, as
well as to promote flexibility, we do not establish a due date in
this Template for completing the Agreements.
Tribes have raised concerns that the Agreements must be
established respecting their sovereignty and legal status. I
believe that these types of concerns should be addressed on an
individual basis in the Agreements with language worked out
directly between the Regional Administrators and the Tribes.
ftocyctod/ftecyclabb
PriflMd wWi S&//GWI* fc* OB ppcrmt
contain* m tow SO* raexted fiber
-------
I believe these Agreements are a critical next step to
further developing environmental protection in Indian country.
It is our hope that the attached Template will assist both EPA
and the Tribes in developing Agreements that effectively evaluate
the need for Tribal program development in a consistent manner as
well as that provide a benchmark•against which to measure
progress over time.
If my office can be of further assistance, please do not
hesitate to call me at (202) 260-7939 or staff can call Caren
Rothstein at (202) 260-9872.
cc: National Indian Workgroup Members
Headquarters Indian Workgroup Members
Tribal Operations Committee Tribal representatives
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TEMPLATE FOR EPA/TRIBAL ENVIRONMENTAL AGREEMENTS
March 17, 1995
PREAMBLE/INTRODUCTION
On July 14, 1994, the EPA Administrator issued an
Action Directive to the Agency which called for prompt
action under nine specific areas that would enhance Tribal
environmental operations. - One such area was the development
of Tribal specific "workplans" to be established between the
Regions and the Tribes. These plans were to allow for
maximum flexibility so that Tribal specific needs could be
•accommodated. During initial deliberations on how to move
forward with these plans, it was decided that, rather than
being "workplans" these were more appropriately defined as
"Agreements"
Further, in order to promote consistency between the
various Regional approaches, the following Template was
developed as a tool for establishing Agreements. The
Template was developed based on discussions between EPA and'
Tribal representatives to the Tribal Operations Committee.
EPA/TRIBAL AGREEMENT -- TEMPLATE
-- The-fol-1 owing-Agreement entered into by EPA .and . (Name-
of Tribe) . is intended to serve as a planning tool which can
clearly identify the Tribe's environmental objectives,
expected outcomes, expectations for resources, as well as,
implementation and management assistance from EPA. This
Agreement should establish the Tribes environmental
objectives over the next 3-4 years, but should be viewed as
.a flexible document that can be changed to meet Tribal need.
It will be revisited periodically to keep it current, expand
it into the future and to review progress.
PURPOSE FOR ESTABLISHING EPA/TRIBAL AGREEMENTS
1. To promote strong environmental protection in Indian
country including Alaska Native lands.
2. To implement the Agency policy which promotes a
government-to-government relationship and recognition
of Tribal sovereignty in environmental protection of
treaty resources.
3. To provide an understanding of Tribal environmental
need and to identify the areas under which each Tribe
intends to assume program responsibility. (Help address
jurisdictional issues.)
-I-
-------
4. To cooperatively develop, implement, and maintain
comprehensive Tribal environmental programs that
include a full range of environmental programs.
5. To build environmental capacity.in order for Tribes to
operate programs over the long run.
6. To identify areas where EPA will need to plan for and
carry out direct implementation.
7. To include Tribes in Agency planning while addressing
specific Tribal problems and other matters of concern
to Tribes.
8. To build equal partnerships and work collectively as
Tribes establish priorities for environmental
protection.
9. To enhance and foster communications between EPA and
the Tribes and to clarify expectations.
GUIDING PRINCIPLES
In establishing this Agreement the following principles
are agreed to-.
1. As these Agreements are developed, all principles
included in the Agency's Indian Policy shall apply.
This includes recognition of a trust responsibility for
environmental protection, government-to-government
relationship, and Tribal sovereignty.
2. The Government-to-Governner.t Relationship shall be
directly between £?A and "ame of Tribe.)
3. The Agreement shall be implemented to promote stability
in funding, employment, capacity building,
infrastructure development and other such factors that
lead to long-term program implementation for the
Tribe.
4. These Agreements are being developed with the
understanding that the long-term goal is to address,
implement and maintain, where deemed necessary by the
Tribe, the full range of EPA's activities and programs.
5. While implementing this Agreement, the Agency is
committed to on-going, timely and open communications
with the Tribe. All efforts will be made to provide
timely advice on available grants and other sources of
available funding, training and on-going meetings that
affect Tribes.
-2-
-------
This also includes a timely transfer of state of the
art technology as the Tribe seeks to .build capacity.
6. This Agreement is intended to promote flexibility while
addressing the needs of the Tribe and can be revisited
as appropriate to ensure common sense approaches.
7. The principles of environmental justice shall apply to
this Agreement. In general these principles call for
the Agency to assure that Tribes are afforded all of
the opportunities afforded States, including procedures
for Tribal participation into Agency decision making.
In addition, environmental justice principles call for
a recognition of Tribal cultural-concerns .-.such^as
subsistence needs and traditional uses of natural
resources.
GENERAL AGREEMENT ON REGIONWIDE TRIBAL ISSUES
The following factors have been identified as issues
that all Regions are experiencing and a Regional approach is
need to address them in this Agreement:
1. Emergency response;
2. Grant flexibility;
3. Process for communication;
4 . A method for* monitoring progress; _. •. - ._..-;-
5. Resolution of issues that arise where State and/or
Tribes have not demonstrated adequate jurisdiction; and
6. Language to ensure that the trust responsibility is
adhered to.
PLANNING AND BUDGET CYCLES
1. Identify resources needed from EPA in an aggregated
format including: dollars, workyears, travel, (include
a menu of resources.)
2. Identify schedule for submitting grant applications and
other such planning information.
3. Identify how stable source of funding will be provided
including resources from EPA and from the Tribe.
Project specific funding can be used to get started,
but sources of long-term program implementation funding
should be identified.
4. Explain in detail the linkage between long-term goals
and short-term resource needs so that the Agency can
pursue adequate resource needs to assist with these
longer-term objectives, without focusing on the year-
to-year fluctuations on the budget.
-3-
-------
5. Updated key information for national budget development
on rolling schedules ^should be submitted annually based
on the Agreement while maintaining key activities that
lead to fulfillment of longer term goals.
(NAME OF TRIBE) /EPA SPECIFIC ACTION PLAN
1. Describe Tribe's goals, objectives and desired
outcomes.
2. Identify short-term resource needs (FY 95 & 96)
3. Identify long-term goals through (FY 98) if possible.
4. Identify goals for program assumption and the year in
which the Tribe intends to apply for program
assumption.
5. Identify direct implementation needs from EPA.
6. Provide methods for implementing the program --
including enforcement on the reservation and for treaty
resources of the reservation. This would include an
identification cf contributions made by EPA, Tribe and
other Federal agencies. Areas in which the Tribe may
wish to pursue working with the SCate~and~~wit:K Tribal
-coris©3?£$a—may -be -included;
7. List specific Tribal priorities in addition to general
program assumption such as developing Tribal codes,
carrying on monitoring, developing a profile of Tribal
resources, etc
8. Identify training the Tribe feels it needs to help with
program implemer.-ation.
9. Define the Tribe s cultural, resource, and technical
expertise, including current staffing and future
staffing needs.
10. Provide a method for monitoring progress.
-4-
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Thursday
February 12, 1998
Part III
Environmental
Protection Agency
40 CFR Parts 9, 35, 49, 50, and 81
Indian Tribes: Air Quality Planning and
Management; Final Rule
7253
-------
7254
Federal Register/Vol, 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CPR Parts 9,35,49,50, and 81
IOAR-FRL-5964-2]
MN2060-AF79
Indian Tribes: Air Quality Planning and
Management
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Clean Air Act (CAA)
directs EPA to promulgate regulations
specifying those provisions of the Act
for which it is appropriate to treat .
Indian tribes in the same manner as
states. For ttase provisions specified, a .
tribe may develop and implement one
or more of to own air quality programs
under the Act. This final rule sets forth
the CAA provisions for which it is
appropriate to treat Indian tribes in die
same manner as states, establishes the
requirements that Indian tribes must
meet if they choose to seek such
treatment, and provides for awards of
federal financial assistance to tribes to
address air quality problems.
EFFECTIVE DATE: March 16; 1998.
FOR FURTHER MRMIATON CONTACT:
David R. LaRoche. Office of Air and
Radiation (OAR 6102). US.
Environmental Protection Agency. 401
M Street S.W.. Washington D.C. 20460
at (202) 260-7652.
Supporting information used in
developing die final rule is contained in
Docket No. A-93-3087. The docket is
available for public inspection and
copying between 8:30 ajn. and 330
pan. Monday tivough Friday, at EPA's
Air Docket Room M-1500. Waterside
Mall. 401M Street SW. Washington.
D.C. 20460. A reasonable fee may be
charged for copying.
This preamble is organized according
to die following outline:
L Background of the Final Rule
fc Analysis of Major Issues Raised by
Comnwitters
A. Jurisdiction
B. Sovereign Immunity and Citizen Suit
C. Air Program Implementation in Indian
Country
D. CAA Sections 110(c)(l) and 502(d)(3)
Authority
DI. Significant Changes from the Proposed
Regulations
IV. Miscellaneous
A. Executive Order (EO) 12866
B. Regulatory Flexibility Act (RFA)
C. Executive Order (ECO 12875 and the
Unfunded Mandates Reform Act (UMRA)
D. Paperwork Reduction Act
£ Submission to Congress and the General
Accounting Office
L Background of the Final Rule
Summary of Issues Raised by the
Proposal
EPA proposed rules on August 25.
1994 (59 FR 43956) to implement
section 301 (d) of the Act The proposal
elicited many comments from state and
tribal officials, private industry, and the
general public. A total of 69 comments
were received, of which 44 were from
tribes or tribal representatives; 13 from
state and local governments or
associations: 10 from industry
(primarily utilities and mining); and. 1
from Department of Energy (DOE) 'and 1
from an environmental interest group in
Southern California. The tribes and
several other connnenters generally
express support for die proposed rule
and the delegation of CAA authority to
eligible tribes to manage reservation air
resources. Tribes especiall urge EPA to
enable tribes to begin to implement their
air quality management programs and
encourage EPA to recognize tiiat die
development of tribal air programs will
be an evolving process requiring botii
time and significant assistance' from
EPA.
Most of the tribal commenters express
concern wldidw inclusion of die citizen
sutt provisions which, they believed.
effected a waiver of tiieir sovereign
immunity; tiiey recommend that tins '
provision be deleted in die final rule. .
This is a niajor issue for tribes. State and
local government and industry
commenters are primarily concerned
tiiat die proposed rule would create an
unworkable scheme for implementing
tribal air quality programs, and many of
tiiese commenters question die scope of
tribal regulatory Jurisdiction.
Responses to many of die comments
related to issues of Jurisdiction and •
sovereign immunity are included in
sections D-A and ILB in die analysis of
comments below. Responses to
comments on die issues raised
concerning federal Implementation in
Indian country are addressed in sections
ILC and ED of this document All other
comments are addressed in a document
entitled "response to comments" that
can be found in die docket for tills rule
cited above.
H. Analysis of Major Issues Raised by
Commenters
A. Jurisdiction
1. Delegation of CAA Authority to
Tribes
It is a settled point of law that
Congress may. by statute, expressly
delegate federal authority to a tribe.
United States v. Ma^urfe. 419 U.S. 544.
554 (1975). See also South Dakota v.
Sour/and. 113 S. Ct. 2309. 2319-20
(1993); Brendale v. Confederated Tribes
and Bands of the Yakima Indian
Nation. 492 U.S. 408. 426-28 (1989)
(White. J.. for four Justice plurality).
Such a delegation or grant of authority
can provide a federal statutory source of
tribal authority over designated areas,
whether or not the tribe's inherent
authority woufd extend to all such
areas. In the August 25. 1994 proposed
tribal authority rule. EPA set forth its
interpretation that the CAA is a
delegation of federal authority, to tribes
approved by EPA to administer CAA
programs in the same manner as states.
• overall air resources within the exterior
boundaries of a reservation for such
programs. Today. EPA is finalizing this
approach. This grant of authority by
Congress enables eligible tribes to
address conduct relating to air quality
on .all lands, including non-Indian-
owned fee lands, within the exterior
boundaries of jf reservation.
EPA's position that the CAA
constitutes a statutory grant of
Jurisdictional authority to tribes is
consistent with the language of die Act
which authorizes EPA to treat a tribe in
the same manner as a state for the
regulation of "air resources within the
exterior boundaries of the reservation or
other areas within the tribe's
jurisdiction." CAA section 301 (d)(2)(B).
EPA believes that tills statutory
provision, viewed within die overall
framework of die CAA. establishes a
territorial view of tribal jurisdiction and
authorizes a tribal role for all air
resources within die exterior boundaries
of Indian reservations without
distinguishing among various categories
of on-reservation land. See also CAA
sections 110(o). 164(c).
In light of die statutory language and
die overall statutory scheme. EPA is
exercising the rulernaking authority
entrusted to it by Congress to implemen
die CAA provisions granting approved
tribes authority over all air resources
within the exterior boundaries of a
reservation. See generally Chevron
U.S.A.. Inc. v. NRDC. 467 U.S. 837.842-
45 (1984). This interpretation of the
CAA as generally delegating such
authority to approved tribes is also
supported by die legislative history.
which provides additional evidence of
Congressional intention regarding this
issue. See S. Rep. No. 228.101st Cong..
1st Sess. 79 (1989) ("die Act constitutes
an express delegation of power to Indiai
tribes to administer and enforce die
Clean Air Act in Indian lands" (citation
to Brendale omitted)) (hereinafter
-------
Federal Register /Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
7255
referred to as "Senate Report")-1 EPA
also believes this territorial approach to
air quality regulation best advances
rational, sound, air quality management.
(a) Support for the delegation
approach. Tribal commenters and
several industry commenters support
EPA's interpretation that the CAA
constitutes a delegation of
Congressional authority to eligible tribes
to implement CAA programs over their
entire reservations. Numerous tribal
commenters assert that EPA's territorial
delegation approach is consistent with
federal Indian law and the intent of
Congress as expressed in several
provisions of the CAA. Several tribal
cornmenters-xiott-that.-wnik tribes have
inherent sovereign authority over all air
resources within the exterior boundaries
of their reservations. EPA should
finalize the delegation approach to
avoid case-by-case litigation concerning
inherent authority and to eliminate the '
disruptive potential of a
"checkerboarded" pattern of tribal and
state Jurisdiction on reservations.
Several tribal commenters assert that the
delegation approach is compelled by the
language of the CAA and federal Indian
law principles. One tribal commenter
states that the delegation approach is
consistent with the federal government's
trust responsibility to federally-
ized Indian tribes.
I Statutory Interpretation. Several
state commenters assert that the CAA
does not constitute an "express
congressional delegation" of authority •
to tribes as required by the Supreme
Court's decisions in Montana v. United
Sates. 450 U.S. 544 (1981) and
Brenda/e. 492 U.S. 408. Several state
and industry commenters dispute EPA's
interpretation of CAA section
301 (d)(2)(B), which states that EPA may
treat a tribe in the same manner as a
state if. among other things, "the
functions to be exercised by the Indian
tribe pertain to the management and
protection of air resources within the
exterior boundaries of the reservation or
other areas within the tribe's
Jurisdiction." One commenter asserts
that the "or" in "or other areas within
the tribe's Jurisdiction" means that
treatment of a state is authorized for a
tribe as to air resources over which the
1 Further. It Is • weu-estabUshed principle of
statutory construction that statutes should be
construed liberally in favor of Indians. with
ambiguous provisions Interpreted In ways Out
benefit tribes. County of VakJ/nav. Confederated
Tribes and Bands of the Yiklma Indian Nation. 112
S.0.683.693 (1992). In addition, statutes should
be Interpreted so as to comport with tribal
aomelgHty and the federal policy of encouraging
tribal Independence, ftama/i Nmvmjo School Board.
lac v. Bureau of Revenue of New Mexico. 458 US.
832.846(1982).
tribe has jurisdiction, whether or not
those areas fall within its reservation
boundaries. In other words, tribes
would not necessarily have Jurisdiction
over all sources within reservation
boundaries. The commenter states that
EPA has improperly read the "or" in
section 301 (d) (2) (B) as an "and."
EPA believes the plain meaning of
section 301(d)(2)(B) is that a tribe can
implement a CAA program for air
resources if: (1) the air resources are
within a reservation; or (2) the air
resources are within a non-reservation
area over which the tribe can
demonstrate jurisdiction. The most
plausible reading of the phrase "within
* * * the reservation or other areas
within the tribe's Jurisdiction" is that
Congress intended to grant to an eligible
tribe jurisdiction over its reservation
without requiring the tribe to
demonstrate its own jurisdiction, but to
require a tribe to demonstrate
jurisdiction over any other areas, Le..
non-reservation areas, over which it
seeks to implement a CAA program. ,
Under section 3Ql(d)(2)(B). eligible
tribes may be treated in die same
manner as states for protecting "air
resources" within "the reservation" or
in "other areas within the tribe's
Jurisdiction." Both the term
"reservation" and the phrase "other
areas within the tribe's Jurisdiction"
modify the phrase "air resources." In
addition, it is clear Cram the structure of
the provision and the CAA and
legislative history taken as a whole that
the phrase "within the tribe's
jurisdiction" modifies the phrase "other
areas" and not die term "reservation" or
the phrase "air resources." If Congress
intended to require tribes to
demonstrate jurisdiction over
reservations. Congress would have
simply stated that EPA may approve a
tribal program only for air resources
over which the tribe can demonstrate
jurisdiction.2
One commenter states mat EPA's
interpretation of CAA section
301 (d) (2) (B) has made CAA section
301 (d)(4). which allows EPA to
administer provisions of the Act directly
if treatment of a tribe as identical to a
state is found to be "inappropriate or
administratively infeasible," extraneous.
'Contrary to the commenter's assertion. EPA does
not Interpret the "or" In this section as an "and".
If the "or" were an "and", under section 301 (d)(2)
EPA would be authorized to approve a tribal
program "onry If the functions to be exercised by
the tribe pertain to air resources that are both
within* reservation and within non-reservation
areas over which the tribe can demonstrate
jurisdiction. This Interpretation is nomemlral
Moreover, nothing in the Act or legislative history
suggests that Congress Intended to limit to severely
the universe of tribes eligible for CAA programs.
The commenter asserts that if CAA
section 301 (d) (2) (B) is a delegation of
authority to a tribe. EPA would never
have cause to find treatment of a tribe
as a state "inappropriate or
administratively infeasible." EPA
disagrees that its interpretation has
made section 301 (d) (2) (B) superfluous
because, even with the delegation of
federal authority to tribes for reservation
areas, it is notappropriate or
administratively feasible to treat tribes
as states for all purposes. In such cases.
section 301 (d) (4) allows EPA. through
rulemaking. to "directly administer
such provisions (of the Act] so as to
achieve the appropriate purpose" either
by tailoring the provisions to tribes on•«.-.* *.
conducting a federal program. •—
An industry commenter states that
CAA section 110(o), which provides
that when a tribal implementation plan
(IIP) becomes effective under CAA
section 301 (d) "the plan shall become
applicable to all areas (except as
expressly provided otherwise in the
plan) locateoVwithin the exterior
boundaries of the reservation* * *."
does not support EPA's interpretation of
the CAA as a delegation because section
110(o) is only applicable to plans EPA
approved pursuant to regulations under
section 301 (d).
EPA believes that section 110(o)
recognizes that approved tribes are
authorized to exercise authority over all
areas within the exterior boundaries of
a reservation for the purposes of TIPs.
EPA notes mat the commenter omitted
the following remaining language In the
quoted sentence from CAA section
110(o): "located within the exterior
boundaries of the reservation,
notwithstanding the issuance of any
patent and including rights-of-way
running through the reservation." EPA
believes that this additional language
makes dear that TIPs may apply to all
areas within the exterior boundaries of
reservations. EPA believes that the
phrase "except as expressly provided
otherwise in the plan" refers to a
situation where a tribe seeks to have its
TIP apply only to specific areas within
a reservation.
An industry commenter states that the
CAA does not depart from other
.Congressional provisions regarding
"treatment as a state" in the Clean
Water Act (CWA) and die Safe Drinking
Water Act (SDWA) and EPA has already
determined that these other statutes do
not constitute a delegation of authority
to tribes. EPA notes that the CAA
"treatment as a state" provision is
notably different from the SDWA
"treatment as a state" provision.
Compare CAA § 301 (d) (2) ("the
functions to be exercised by the Indian
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
tribe (must] pertain to the management
and protection of air resources within
the exterior boundaries of the
reservation or other areas within the
tribe's jurisdiction") wftftSDWA
§1451(b)(l)(B) ("the functions to be
exercised by the Indian tribes (must be]
within the area of the Tribal
Government's jurisdiction"). In
addition, although CWA section 518(e)
and CAA section 301 (d) both contain
language regarding tribal programs over
"Indian reservations." EPA believes that
the overall statutory scheme and
legislative history of the CAA represent
a clearer expression than that of the
CWA that Congress intended to
effectuate a delegation to tribes over
reservations.9 £PA notes that except for
the provisions in CWA section 518(e)
and SOW A section 1451 (b)(l)(B). the
Water Acts do not otherwise indicate
.what areas are subject to tribal
regulatory authority. By contrast, several
provisions of the CAA expressly
recognize that tribes may exercise CAA
authority over all areas within the
exterior boundaries of the reservation.
See CAA sections 110(o) and 164(c).
One industry commenter states mat
EPA should make clear that the CAA
does not supersede other laws that may
define or limit me extent of tribal
regulatory jurisdiction.4 The commenter
states mat given that the CAA does not
supersede all other laws regarding tribal
jurisdiction. EPA should follow a case-
by-case approach for addressing
Jurisdiction within reservation
boundaries. One state association notes
mat some states have statutory
jurisdiction over non-Indian fee lands
located on reservations and EPA does
not address how conflicts between the
CAA and these statutes will be
addressed.
» EPA abo notes that • federal dtatrict court Ins
iiteCWAMcttonSlftfeiBMybenadnan
i aetagattoa of authority to tribes over «D
Ml F.Supp.945.951.957n.10 An.I20>.Mont
1996) cttwx Breodafc. 492 U.& at 428 (White. W.
«the pnanbte ID to 1991 CWA regulation. EPA
found the statutory iar«uage and tojfchnVe hMory
of the CWA too Inconclusive far the Agency to «dy
en the rlfhgannn theory, but noted that "the
question of whether sectton 5I8(e) Is an explicit
deiegau^ oT authority over non-Indlam Is not
resolved" 56 FR 64876.64880-8S1 (December 12.
1991).
«TW» commemer abo asserts that the Chevron
doctrine does not suppon EPA's tMetpicnUon that
the CAA settles all jurtadicttanal issues on tads
wtthm reservations. While EPA believes thM the
CAA represents a dear delegation of authority to
eligible tribes over reservation resources. EPA notes
that, to the extent the statute to ambiguous. EPAs
»n«eip«etaUon would be entitled to defcieiice. In
addition, the Agency has brawl experttae ki
reconciling federal envtnmmenul and Indian
EPA believes that the CAA delegation
of authority to eligible tribes over
reservations represents a more recent
expression of Congressional intent and
will generally supersede other federal
statutes. See Adkins v. Arnold. 235 U.S.
417.420 (1914) (noting that "later in
time" statutes should take precedence).
There may be. however, rare instances
where special circumstances may
preclude EPA from approving a tribal
program over a reservation area. For
example, in rare cases, there may be
another federal statute granting a state
exclusive Jurisdiction over a reservation
area that may not be overridden by the
CAA. There may also be cases where a
current tribal constitution may limit
tribal exercise of authority.'
EPA will consider on a case-by-case
basis whether special circumstances
exist that would prevent a tribe from
implementing a CAA program over its
reservation. Appropriate governmental'
entities will have an opportunity to
raise these unique issues on a case-by-
case basis during EPA's review of a
tribal application. Where tribes are
aware of such issues, they should bring
die issues to EPA's attention by
including them in die tribe's
"descriptive statement of the Indian
tribe's authority to regulate air quality"
under 40 CFR 49.7(a)(3). If EPA
determines that there are special
circumstances that would preclude die
Agency from approving a tribal program
over a reservation area, die Regional
Administrator would limit the tribal
approval accordingly under 40 CFR
49.9(e) and (g).
(c) Legislative History. Several
industry and local.govenuneiu
commenters assert that die legislative
history does not support EPA's
Interpretation of the CAA as a
delegation. They state that Senate
Report No. 101-228. pp. 78-79.1990
U.S. Code Cong, ft Admin. News at
3464-65 (Senate Report) evidences
Congress'intent mat die CAA
authorizes tribal programs indie same
manner as had been authorized under
me CWA and SDWA. both of which
EPA has Interpreted to authorize tribal
programs only in areas over which a
tribe can demonstrate inherent
jurisdiction. The commenter also states
that die Senate Report made clear that
treatment as a state is only authorized
for areas within a tribe's jurisdiction. In
addition, one commenter states that
Congress in 1990 knew how similar
provisions of the CWA and SDWA had
been interpreted and "Congress can
normally be presumed to have had
knowledge of the interpretation given
the Incorporated law. * * *" citing St
Regis Mohawk Tribe, New York \.
Brock. 769 F.2d 37. 50 (2nd Cir. 1985)
One commenter further argues that the
Senate Report refers to Brendale. whic
requires a case-by-case approach to
tribal inherent jurisdiction.
EPA acknowledges that the sununar
of the treatment as a state provisions ii
the Senate Report contains a general
statement suggesting that tribes are to
demonstrate jurisdiction for all areas f
which they seek a program, including
reservation areas. However, die _•-
summary is followed by a detailed
discussion that makes clear that
Congress intended to provide an expn
delegation of power to Indian tribes fo
all reservation areas and to require a
jurisdictlonal showing only for non-
reservation areas. Senate Report at 79.
In addition, the Senate Report cited
Brendale fofme proposition mat
Congress may delegate federal author!
to tribes. Moreover, although Brendalt
does support a case-by-case approach
evaluating tribal inherent authority ov
non-members of the tribe. EPA notes
mat the Senate Report cites the sectioi
of the BrendaJe opinion (pages 3006-C
in which Justice White recognizes dial
Congress may expressly delegate to a
tribe authority over non-members. Sec
Brendale. 109 S.Ct 2994.3006-07
(1989). EPA believes mat this statemei
in the Senate Report further supports
EPA's view that die CAA was Intend*
to be a delegation. EPA also notes that
in 1989. when the Senate Report was
written, EPA had not yet finalized its
interpretation that Congress, in the
JCWA. did not clearly intend a
delegation to tribes. See 56 FR 64876.
64880-881 (December 12.1991): see
also Montana v. EPA. 941 F. Supp. 94
951.957 n.10 b n.12 (noting that the
CWA may be read as a delegation of
CWA authority to tribes over
reservations). Thus, read as a whole, t
Senate Report supports EPA's
interpretation that the CAA is a
del
' Among other thi
gs, the commenter questions
or binding
may limit the extern of n*iilato>y jurisdiction. EPA
beneves that the CAA generally would supersede
Fid 1465. 1469 (9th Or. 1985)
j treaties or Mndtag agreements that may
limit the scope of Mba^uthority over res
(df Limitations on Congressional
delegations of authority. Several state
and municipal commenters state that
Montana. Brendale. and Bourtand
establish that tribes generally do not
have authority to regulate the activitie
of nonmembers on nonmember-owne»
fee lands. Several commenters also
assert that tribes generally will not ha
inherent authority over sources of air
pollution on non-Indian owned fee
lands within a reservation. As discuss
in detail in the preamble to the
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998 /Rules and Regulations 7257
proposed rule (59 FR 43958 etseq.).
EPA believes that tribes generally will
have inherent authority over air
pollution sources on fee lands. 59 FR at
43958 n.5: see also Montana v. EPA, 941
F.Supp. 945 (D. Mont 1996) (upholding
EPA's determination that the
Confederated Salish and Kootenai
Tribes possess inherent authority over
nonmember activities on fee lands for
purposes of establishing water quality
standards under the CWA). Nonetheless.
because the Agency is interpreting the
CAA as an explicit delegation of federal
authority to eligible tribes, it is not
necessary for EPA to determine whether
tribes have inherent authority over all
^sources of air pollution on their
reservations. •
Several comrnenters state that only
delegations over lands and activities
subject to inherent tribal power are
permissible. One commenter states that
the proposed rule should be modified to
require tribes to establish preexisting
authority for on-reservatlon CAA
programs, at least with regard to fee
lands held by.nonmembers within
reservations. Two commenters, one
citing the United States Constitution
and the other citing U.S. v. Morgan. 614
F.2d 166 0th Cir. 1980). also assert mat
a tribe cannot have delegated authority
over nonmembers on fee lands living in
a non-Indian community within a
reservation. A state commenter asserts
that these two factors. Le., whether a
tribe possesses Inherent authority and
whether die delegation is over
nonmembers living on fee lands within
anon-Indian community, were factors
considered by the Supreme Court in
Mazurie in evaluating whether Congress
had validly delegated federal authority
to tribes to regulate the introduction of
alcoholic beverages into Indian country.
EPA believes that Indian tribes have
sufficient independent authority to
assume a Congressional delegation of
authority to implement CAA programs.
The Supreme Court In Mazurie
acknowledged that Indian tribes have
sovereignty over "both their members
and their territory." 419 U.S. at 557. As
discussed above. EPA believes that
tribes generally will have inherent
authority to regulate sources of air
pollution on nonmember-owned fee
lands within reservations as well.
However. EPA notes that the Court in
Mazurte held that it is not necessary for
a tribe to have independent authority
over all matters that would be subject to
the delegated authority; rather "{i]t is
necessary only to state that the
independent tribal authority is quite
sufficient to protect Congress' decision
to vest in tribal councils this portion of
its own authority 'to regulate Commerce
• * * with the Indian tribes.'"419 U.S.
at 557 (citation omitted).
In addition, while the Court in
Mazurie noted that Constitutional limits
on the authority of Congress to delegate
its legislative power are "less stringent
in cases where the entity exercising the
delegated authority Itself possesses
independent authority over the subject
matter." the Court did not say that some
independent source of authority was an
absolute prerequisite for a Congressional
delegation. 419 US. at 556-57.* Even in
a case where a particular tribe's inherent
authority is markedly limited, the
detailed parameters outlined in the CAA
and EPA's oversight role over tribal
~-*
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7258
Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
boundaries of a Pueblo. The commenter
asserts that in these circumstances there
is no evidence that the non-Indian lands
were "validly set apart for the use of the
Indians as such, under the
superintendence of the Government."
The State of Oklahoma objects to EPA's
use of the word "reservation" because.
by federal law, the term "reservation"
can include former reservations in
Oklahoma, which include
approximately the entire State. See 25
U.S.C. 1425. The State suggests that EPA
should limit the term reservation to
include only tribal trust land in
Oklahoma: lands held in trust for
individual Indians. Oklahoma asserts.
should not be considered
"reservations."
It is the Agency's position that the
term "reservation" in CAA section
301 (d)(2)(B) should be interpreted in
light of Supreme Court case law.
including Oklahoma Tax Goran'a in
which me Supreme Court held that a
"reservation." in addition to the
common understanding of the term, also
includes trust lands that have been
validly set apart for the use of a tribe
even though the land has not been
formally designated as a reservation. In
applying this precedent to construe the
term "reservation" in the context of the
CWA, the Agency has only recognized
two categories of lands that even-
though they are not formally designated
as "reservations." nonetheless qualify as
"reservations": Pueblos and tribal trust
lands. EPA will consider lands held in
fee by nonmembers within a Pueblo to
be pan of a "reservation" under 40 CFR
49.6(c) and 49.7(a) (3). EPA will consider
on a case-by-case basis whether other
types of lands other than Pueblos and
tribal trust lands may be considered
"reservations" under federal Indian law
even though they are not formally
designated as such. Appropriate
governmental entities will have an
opportunity to continent on whether a
particular area is a "reservation" during
EPA's review of a tribal application. The
Agency does not believe that additional.
rnore specific language should be added
to the regulatory definition of
"reservation." because the Agency's
Interpretation of the term "reservation"
will depend on the particular status of
the land in question and on the
interpretation of relevant Supreme
Court precedent
A tribal consortium states that the
proposed requirement in §49.7(a)(3)
mat tribes "must identify with clarity
and precision the exterior boundaries of
the reservation • * *" precludes
Alaska Native villages from applying for
EPA-approved CAA programs. The full
language of the proposed requirement in
§ 49.7(a)(3) is "(flor applications
covering areas within the exterior
boundaries of the applicant's
Reservation the statement must identify
with clarity and precision the exterior
boundaries of die reservation * * * ."
If a tribe is seeking program approval for
non-reservation areas, the tribe need not
provide a reservation description. As
noted below. EPA is finalizing its
proposed position, under section
301(d)(2)(B). that an eligible tribe may
implement its air quality programs in
non-reservation anas provided the tribe
can adequately demonstrate authority to
regulate air quality in the non-
reservation areas in question under
•genecaLprinciplesof Indian law. Thus,
if an Alaska Native village can
demonstrate authority to regulate air •.
resources in non-reservation areas, the
areas will be considered "other areas
within the tribe's Jurisdiction" under
section 301(d)(2)(B) of the Act
(t) Policy Rationales. Industry and
municipal commenters state that it is.
improper for EPA to base its
interpretation of the CAA regarding
tribal Jurisdiction on policy arguments
seeking to avoid "Jurisdictlonal
entanglements'* and checkerboarding. A
state comments that given the intense
controversy surrounding the issue of
authority over the activities of
nonmembers on fee lands, litigation is
likery. The commenter states that
litigation would cause long-term
jurisdictional uncertainties, which will
erode effective implementation of the
Act and that EPA should address and
resolve Jurisdictional issues in the
reservation pmgiam planning stage. One
industry commenter asserts that EPA's
proposal to interpret the CAA as a
delegation is inconsistent with EPA
policy statements that EPA will
authorize tribal programs only where
tribes "can demonstrate adequate
Jurisdiction over pollution sources
throughout the Jurisdiction." July 10.
1991 EPA/State/Tribal relations
memorandum, signed by Adminlsuatoi'
Reilly.
EPA's interpretation of the CAA is
based on the language, structure, and
intent of the statute. The Agency
believes dial Congress, in the CAA.
chose to adopt a territorial approach to
the protection of air resources within
reservations—an approach mat will
have the effect of minimizing
jurisdictional entanglements and
checkerboarding within reservations.
EPA expects that the delegation
approach will minimize the number of
case-specific jurisdictional disputes that
will arise and enhance the effectiveness
of CAA implementation. EPA notes that
its interpretation qf the CAA does not
conflict with the Agency's general
Indian policy statements regarding trib
jurisdiction. Under the CAA. EPA will
not approve a tribe unless it has the
authority to implement the program
either by virtue of delegated federal
authority over reservation areas, or a
demonstration of authority under
principles of federal Indian law over
other areas on a case-by-case basis.
(g) Currem«nd historical application
of state laws on parts of reservations.
State and industry commenters assert
that states have historically regulated
non-member CAA-related activities on
fee lands within reservation boundarie
and the proposal ignores this historica
treatment and trip transition issues it
raises. The commenters suggest that
EPA consider changing the proposed
regulations to "grandfather" existing
facilities subject to state authority. so
that states continue to regulate, those
facilities until the affected parties all
agree cooperatively to a transition fron
state to tribal jurisdiction. One
commenter states that both the afiectet
state and EPA would need to approve
any necessary state implementation
plan (SIP) revisions.
It is EPA's position mat unless a sta
has explicitly demonstrated its authorl
and been expressly approved by EPA t
implement CAA programs in Indian
country. EPA is the appropriate entity
be implementing CAA programs prior
tribal primacy. See preamble section
U.C. and ILD. for a discussion of feder.
implementation of CAA programs in
Indian country. EPA will not and canr
' any state authority over
Indian country where no explicit
demonstration and approval of such
authority has been made. EPA. as
appropriate, will address any need for
SIP revisions on a case-by-case basis.
2. Authority In Non-Reservation Area:
Within a Tribe's Jurisdiction
CAA section 301 (d) (2) (B) provides
that a tribe may be treated in the same
manner as a state tor functions regardi
air resources "within the exterior
boundaries of the reservation or other
areas within the tribe's jurisdiction"
(emphasis added). In the August 25.
1994 proposed tribal authority rule. E
set form its interpretation that this
provision authorizes an eligible tribe t
develop and implement tribal air qual
programs in non-reservation areas tha
are determined to be within the tribe':
Jurisdiction. Today. EPA is finalizing
mis approach.
(a) Support for EPA's approach.
Several tribal commenters support
EPA's interpretation that "other areas
within the Tribe's jurisdiction" in CA
section 301(d)(2)(B) means that a tribe
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
7259
may implement its air quality programs
in non-reservation areas under its
jurisdiction, generally including all non-
reservation areas of Indian country. One
tribal commenter asserts that the
"Indian country" standard is the
standard consistently used by courts in
determining a tribe's jurisdiction.
(b) Request for Clarification. Several
commenters request that EPA clarify
what is meant by the phrase "other
areas within a Tribe's jurisdiction."
Some commenters state that this phrase
must be clarified to avoid conflicts
between states and tribes in interpreting
their own Jurisdiction and uncertainty
for regulated sources. One commenter
...urges EPA to develop published criteria
by which the Agency will decide
whether a tribe may develop and
implement a CAA program in areas
outside the exterior boundaries of a
reservation. Some commenters also
request that EPA clarify what is meant
by "Indian country."
EPA notes that the phrase "other areas
within the tribe's jurisdiction"
contained in CAA section 301 (d) (2) (B)
and 40 CFR 49.6 is meant to include all
non-reservation areas over which a tribe
can demonstrate authority, generally
including all non-reservation areas of
Indian country. As noted above, it is
EPA's interpretation that Congress has
not delegated authority to otherwise
eligible tribes to implement CAA
programs over non-reservation areas as
it has done for reservation areas. Rather.
a tribe seeking to implement a CAA
program over non-reservation areas may
do so only if it has authority over such
areas under general principles of federal
Indian law.
EPA notes that the definition of
"Indian country" contained in 18 U.S.C.
section 1151. while it appears in a
criminal code, provides the general
parameters under federal Indian law of
the areas over which a tribe may have
Jurisdiction. Including civil Judicial and
regulatory Jurisdiction. See DeCoteau v.
District County Court. 420 US. 425.427
. n. 2 (1975). EPA acknowledges that
mere may be controversy over whedier
a particular non-reservation area is
within a tribe's jurisdiction. However.
EPA believes that these questions
should be addressed on a case-by-case
basis in the context of particular tribal
applications. EPA has established a
process under section 49.9 for
appropriate governmental entities to
comment on assertions of authority in
individual tribal applications. More
discussion of the parameters of "Indian
country" is provided in the detailed
response to comment document.
Some tribal commenters object to
EPA's description of the proposed
requirement in §49.7(a)(3)(ii) that.
where a tribe seeks to have its program
cover areas outside the boundaries of a
reservation, the tribe must demonstrate
its "inherent authority" over those
areas. These commenters assert that the
term "inherent authority" must be
clarified because it may inappropriately
limit the potential sources of tribal
authority to regulate non-reservation air
resources. EPA agrees that there may be
cases where a tribe has authority to
regulate a non-reservation area that
derives from a federal statute or some
other source of federal Indian law that
is not based on "inherent authority."
Section 49.7(a)(3)(ii) only asks a tribe
seeking to implement a CAA program in
a non-reservation area to "describe the
basis for the tribe's assertion of
authority* * *." Under this provision.
a tribe may include any basis for its
assertion of authority.
Some tribal commenters ask EPA to
take the position that the phrase "other
areas within the tribe's Jurisdiction"
means diat tribes will have control over
sources in close proximity to a
reservation. One tribe comments mat
EPA has a trust responsibility to ensure
diat tribes have authority to control
sources of air pollution outside of
reservation boundaries that affect the
health and welfare of tribal members
living within reservation boundaries.'
One tribe asks whether non-reservation
jurisdictional areas include ceded lands
where tribes retain the right to hunt and
fish.
As noted above, it is EPA's position
diat while Congress delegated CAA
authority to eligible tribes for
reservation areas, the CAA authorizes a
tribe to implement a program in non-
reservation areas only if it can
demonstrate authority over such areas
under federal Indian law. Thus, a tribe
may implement a CAA program over
sources in non-reservation areas.
including ceded territories, if the tribe
can demonstrate its authority over such
sources under federal Indian law. CAA
provisions regarding cross-boundary
impacts are the appropriate mechanisms
for addressing cases where sources
outside of tribal authority affect tribal
health and environments. See. e.g., CAA
sections 110(a)(2)(D). 126. and 164(e).
The issue of cross-boundary impacts is
discussed further in die response to
comments document
(c) Comments challenging EPA's
Interpretation of the CAA. Some
commenters state that CAA section
110(o) limits the jurisdictional reach of
a TIP to areas located within the
boundaries of a reservation. One
commenter asserts that since a tribe can
only Implement its TIP within a
reservation, to allow a tribe to
implement other parts of the CAA in
non-reservation areas would be
unmanageable and unreasonable.
EPA believes that the reference in
CAA section 110(o) to "reservation" is
simply a description of die type of area
over which a TIP may apply. EPA does
not believe the provision was intended
to limit the scope of TTPs to
reservations. CAA section 301(d)(l)
authorizes EPA to treat a tribe in the
same manner as a state for any provision
of me Act (except with regard to
appropriations under section 105) as
long as die requirements in section
301 (d) (2) are met. EPA has decided to
include.mpst of .the .provisions of
section440 iri-the group of provisions
for which treatment of tribes in the same
manner as a state is appropriate. Section
301 (d){2) permits EPA to approve
eligible tribes to implement CAA
programs, including TIPs. over non-
reservation areas that are within a tribe's
jurisdiction.
An industry^commenter asserts diat
the Senate Report evidences that
Congress intended to provide tribes the
same opportunity to adopt programs as
provided under the CWA and SDWA.
This commenter asserts that tribal
jurisdiction under those statutes is
limited to reservations. EPA notes that
the SDWA does not limit tribal
programs to. reservations. See 42 U.S.C.
300j-ll(b)(l)(B) (authorizinga tribal
role "within the area of the Tribal
Government's jurisdiction."). EPA also
notes that mere is evidence in the
Senate Report that Congress intended to
authorize EPA to approve eligible tribes
for CAA progiams in non-reservation
areas of Indian country mat are within
a tribe's Jurisdiction. The report states
that section 301 (d) is designed "to
improve the environmental quality of
the air wit(h)in Indian country in a
manner consistent with EPA Indian
Policy and&ie overall Federal position
in support of Tribal self-government and
the government-to-government relations
between Federal and Tribal
Governments' * * *." Senate Report at
79 (emphasis added) (citing EPA's 1984
Indian Policy): see also. Id. at 80.
3. Other jurisdictional Issues
Several local governments comment
that the final rule should ensure that.
tribes with very small reservations do
not have authority under an air program
to adversely affect economic
development in adjacent areas, intrude
upon the jurisdiction of local
governments, or create checkerboarded
regulation. One commenter asserts that
the proposal would allow for EPA
approval of "islands" of Indian
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programs and "will create the same
problems for states and local
governments which EPA believes will
be eliminated by granting tribes full
regulatory power over all land within
reservation borders." In addition, a state
commenter states that extending tribal
programs to non-reservation areas
within the parameters of 18 U.S.C.
section 1151 conflicts with EPA's goal
under the CAA of increasing cohesive
air quality management Several
commenters state mat regulation by
tribes with very small reservations or
other very small areas of Indian country
would be administratively impractical.
Several local governments state diat a
^minimum size should be placed on
'areas to be considered for tribal
Jurisdiction. An industry commenter
suggests that the final rule Urrdt non-
reservation tribal programs to those
areas under tribal Jurisdiction that are
contiguous with reservations. Some
local government)
diat
tts also state
A. instead of a tribe, should
forcing pro^jrwns on smul
of Indiui country.
EPA acknowledges*
itth
aybe
(where the Agency may approve a
tribe's application to implement a CAA
program over a relatively small land
. EPA also recognizes diat approval
of a tribal program over a small area that
is surrounded by land covered by a state
CAA program could lead to less uniform
regulation. However. EPA believes it
would be inappropriate to place a
blanket limitation on the geographic
size of an approvable tribal program.
EPA notes that Congress, in the CAA.
authorized the Agency to approve tribal
CAA programs when a tribe meets die
criteria contained in CAA section
301(d) (2) (B) without regard to size of
area. In addition, it is long-standing
federal Indian policy to support tribal
self-government and a govemment-to-
govenment relationship with federally
recognized Indian tribes. See Senate
Report at 79; April 29.1994 Presidential
Memorandum. "Govemment-to-
Govemment Relations with Native
American Tribal Governments." 59 FR
22.951 (May 4.1994). Furthermore. EPA
policy favors tribal over federal
implementation of environmental
programs in areas under tribal
Jurisdiction. See 59 FR at 43962:
November 8.1984 "EPA Policy far the
Administration of Environmental
Programs on Indian Reservations." EPA
also recognizes that under the realities
of federal Indian law. there are some
small pockets of Indian country under
tribal and federal Jurisdiction diat lie
among lands under state Jurisdiction.
While EPA recognizes diat its approval
of tribal programs over small areas may
result in less uniform regulation in some
cases, the Agency believes that the
approach to tribal Jurisdiction outlined
in this Tribal Authority Rule best
reconciles federal Indian and
environmental policies. See Washington
Department of Ecology. 752 F.2d at
1469. The Agency's overall approach
minimizes the potential for
checkerboarded regulation within
Indian reservations (see preamble at
ILA.l.(a)). while promoting tribal
sovereignty arid self-determination.
One tribal commenter states that
pollution from air sources outside a
tribe's Jurisdiction must be addressed.
TWs commenter states that section 126
of the CAA. while designed to address
this issue. Is. awkward and probably
difficult to adndnist
tt
sr. In addition, local
tters state that the
off-site effect of
wing tribal
for Indian lands should be
considered. One local
djuunci
diat "mutual protection for air quality
goals, health values and customs should
be assured for all within any physical
air basin to die extent workable."
EPA notes that several provisions of
boundary air impacts. EPA is finalizing
its proposed approach that the CAA
protections against interstate pollutant
transport apply with equal force to
states and tribes. Thus. EPA is taking
the position that me prohibitions and
authority contained in sections
110{a)(2)(D) and 126 of the CAA apply
to tribes in the same manner as states.
As EPA noted in die preamble to its
proposed rule, section llOfa)(2)(D).
, requires states to
include provisions in their SIPs that
prohibit any emissions activity within
die state from significantly contributing
to nonattairanent interfering with
rl**<******J'lr* rf th» nfUnmmil mmhlfnt air
quality standards (NAAQS). or
interfering with measures under die
Prevention of Significant Deteriorati
(PSD) or visibility
in anodier state or tribal area. In
addldoa section 126 authorizes any
state or tribe to petition EPA to enforce
these prohibitions against a state
containing an allegedly offending source
or group of sources. The issue of cross-
boundary impacts is discussed further
in the lespoiise to cumment dflomiRiit
Several tribal commenters note that,
in die preamble to die proposed rule.
EPA misstated the faWf* limitation
contained in the Indian Civil Rights Act
on criminal fines diat may be imposed
by tribes. EPA agrees diat the dollar
limitation in the Indian Civil Rights Act
on criminal fines is $5.000 as opposed
to $500.
B. Sovereign Immunity and Citizen Suit
1. Section 304
In its August 25. 1994 Notice of
Proposed Rulemaking (NPR) EPA
proposed, under the CAA's section
301 (d) rulemaking authority, that the
citizen suit provisions contained in
section 304 of die Act should apply to
tribes in the same manner in which they
apply to states-See 59 FR at 43978. In
today's final action. EPA is declining to
announce a position, in the context of
the rulemaking required under section
301 (d) of the Act regarding whether
tribes are subject to die dozen suit
provisions contained in section 304. anc
therefore is riot finalizing. uXposition
stated in the NP&m order to facilitate
tribal adoption and implementation of
air quality programs in a manner similar
to state-implemented programs, section
301 (d) requires EPA to specify through
rulemaking those provisions of die Act
which die Agency believes are
appropriate to apply to tribes. EPA's
rulemaking approach has been to deem
all CAA provisions appropriate for
tribes, except for those provisions
specifically listed in die rule regarding
which EPA. for various reasons, believe
it may be inappropriate for me Agency.
solely in the context of its 301 (d)
authority, to make such a determination
Thus, the direct consequence for today':
final action of EPA's decision not to
adopt the position presented in the NPF
regarding die provisions of section 304
is that section 304 has been added to th<
list of those CAA provisions which, for
section 301 (d) purposes. EPA has
concluded it is hot appropriate to
determine that tribes should be treated
as states. That list is contained in
section 49.4 of today's rule. EPA is also
clarifying die relationship of this final
action regarding section 304 to the right
that tribes enjoy, as sovereign powers, t
be immune from suit See Santa Clara
Pueblo v. Martinez. 436 U.S. 49.58
(1978).
The Agency received a number of
comments on die section 304 citizen
suit issue. One group of industry
commenters appears to be in favor of
tribes being subject to dozen suits, and
is particularly concerned diat non-triba
members be provided wlm similar
enforcement opportunities for TEPs as
are required for SIPs. The majority of
comments received on this issue came
from tribal governments, mainly
disputing EPA's claim that section
301 (d). as a legal matter, provided EPA
with die authority to apply the section
304 citizen suit provisions to tribes
since doing so would appear to have th
effect of administratively waiving tribal
sovereign immunity. These commenter
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7261
argue that only the tribes themselves OP-*
Congress may waive tribal sovereign
immunity and. further, that
Congressional intent to waive tribal
sovereign immunity may not be implied
but must be express and unequivocal.
They do not believe that the CAA..
including section 301 (d). contains such
an express waiver. Several of the
comrnenters also state that because
states are subject to section 304 only "to
the extent permitted by the Eleventh
Amendment to the Constitution."
applying it to tribes would likely make
the requirement more burdensome than
it would be for states. Several tribal
conunenters also express the view that
the United States"), and because the
provisions of section 304 (and the
applicable definitions in section 302) do
not expressly refer to tribes. EPA has
been concerned that the action it
proposed to take may have subjected
tribes to citizen suit liability in
situations in which citizens could not
sue states. Because of this uncertainty. '
EPA believes it is not appropriate to
attempt to resolve this significant issue
in the context of the limited scope of the
rulemaking required under section
301 (d).
EPA also notes that courts have Jong
recognized that citizen plaintiffs may
bring actions for prospective injunctive
relief against state officials under the
citizen suit recourse is unnecessary
since EPA retains enforcement authortey^CAA-section 304 citizen suit-provisions.
under various other CAA provisions, for
example, sections HO(rn). 179(a) (4). and
502(0. Finally, concern is expressed that
adopting a policy of subjecting tribes to
citizen suits could hinder development
of tribal air programs because it could
add significant resource constraints.
financial and otherwise, particularly
with respect to potential litigation.
Section 304 of the CAA reflects the
general principle underlying all
environmental citizen suit provisions.
namely that actors who accept
faxfipf} standards and who voluntarily
commit themselves to undertake control
programs in furtherance of such goals.
ought to be accountable to the citizens
those programs are designed to benefit
However. EPA agrees, as several
cornmenters pointed out that section
304 only applies to states to the extent
permitted by the Eleventh Amendment
to the Constitution. The Supreme Court
has interpreted the provisions of the
Eleventh Amendment as generally
serving to protect a state from liability
to suit where the state does not consent
to be sued. EPA believes that just as
states implementing air quality
> are not subject to citizen suits
as well as under other environmental
statutes with similar citizen suit
provisions. See Council of Commuter
Organizations v. Metro. Transp., 683
F.2d 663.672 (2nd Or. 1982). See also
Scminoie Tribe of Florida v.Florida,
116 S. CL 1114.1133 n.17 (1996)
(acknowledging that lower courts have
entertained suits against state officials
pursuant to citizen suit provisions in
environmental stattff*s substantially
identical to CAA section 304(a)(l)).
While this raises me question of
whether such actions could be brought
against "tribal officials." EPA believes .
this issue is also outside the scope of
this rulemaking.
2. Judicial Review Provisions of Title V
In its proposed rulemaking. EPA
proposed to treat tribes in the exact
same manner as states for purposes of
the provisions of CAA sections 502(b)(6)
and 502 (b) (7) addressing judicial review
under the Title V Operating Permits
Program. 59 FR at 43972. For the
except to the extent permitted by the
Eleventh Amendment of the
Constitution and the provisions of the
Clean Air Act by analogy, in the context
of air program implementation in Indian
country, the issue of citizen suit liability
would be determined based on
established principles of tribal sovereign
immunity and the provisions of the
Clean Air Act This is meant to
emphasize that no EPA action in this
final rule either enhances or limits the
immunity from suit traditionally
enjoyed by Indian tribes as sovereign
powers.
Because the Eleventh Amendment
does not apply to tribes (by its terms.
the Eleventh Amendment only
addresses suits brought "against one of
reasons discussed below, in today's
Reaction EPA is withdrawing its
proposal to treat tribes in the exact same
manner as states for purposes of these
judicial review provisions. As described
below, however, tribes mat opt to
establish a Title V program will still
need to meet all requirements of
sections 502(b)(6) and 502(b)(T) except
those provisions that specify mat review
of final action under the Title V
permitting program be "judicial" and
"in State court"
As noted above in the discussion
regarding the applicability of CAA
section 304 to tribes, tribal cornmenters
express concern over waivers of tribal
sovereign immunity to judicial review.
Several tribal cornmenters also note that
requiring tribes to waive sovereign
immunity in order to run a Title V
program will be a strong disincentive for
tribes to assume these programs. Two
industry cornmenters state that
nonmembers that are regulated by tribes
must have access to tribal courts for
judicial review. Several cornmenters
express concern that some tribal
governments may lack a distinct judicial
system.7
EPA recognizes the importance of
providing citizens the ability to hold
accountable those responsible for
regulating air resources. Nonetheless.
.EPA also acknowledges that applying
the judicial review provisions of Title V
to tribes through this rule would raise
unique issues regarding federal Indian
policy and law. EPA is mindful of the
vital importance of sovereign immunity
to tribes. In addition. EPA is aware that
in some instances tribes do not have
distinct judicial systems. Finally. EPA
has long recognized the importance of
encouraging tribal implementation of
environmental programs and avoiding
the establishment of unnecessary
barriers to the development of such
programs. E.g.. EPA's 1984 Indian
Policy: see also Senate Report at 8419
(noting that section 301 (d) is generally
Intended to be consistent with EPA's
1984 Indian Policy). EPA seeks to strike
a balance among these various
considerations. See Washington
Department of Ecology v, EPA. 752 F.2d
1465.1469 (9th Cir. 1985).
In order to ensure a meaningful
opportunity for public participation in
the permitting process, it is EPA's
position that some form of citizen
recourse be available for applicants and
other persons affected by permits issued
under tribal Title V programs. One
option for review of final actions taken
under a tribal Title V program is for
tribes to consent to suit through
voluntary waiver of their sovereign
immunity in tribal court EPA supports
the continued development and
. strengthening of tribal courts and
encourages those tribes that will
implement Tide V permitting programs
to consent to challenges by permit
applicants and other affected persons in
tribal court For the reasons discussed
count "lack many procedural, substantive law and
constitutional proucttonfs) far non-members." EPA
b aware that tribal governments venae subject to
the requirement of the BUI of Rights and the
Fourteenth Amendment of the U.S. Constitution.
and that review of tribal court decisions in federal
court may be limited. However. EPA notes that the
Indian Civil Rights Act requires tribes to provide
several protections similar to those contained in the
BUI of Rights and the Fourteenth Amendment,
Including due process of law, equal protection of
the laws, and the right not to have property taken
without Just compensation. 25 U.S.C. S1302: Santa
ClaraPueUov. Martinez. 436 U.S. 49. 57 (1978).
These protections extend to all persons subject to
tribal jurisdiction, whether Indians or non-Indians.
See lam Mutual Insurance Co. v. iaWante. 480
U.S. 9.19 (1987).
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
above, however, requiring tribes to
provide for review in the exact same
manner as states pursuant to section
502(b)(6) is not appropriate.
In some cases, well-qualified tribes
seeking approval of Title V programs
may not have a distinct judiciary, but
rather may use non-judicial mechanisms
for citizen recourse. See Santa Clara
Puebfo v. Martinez. 436 U.S. 49.65-66
U978) ("Non-judicial tribal institutions
have* * * been recognized as
competent law-applying bodies."). In
addition, a requirement mat tribes
warve their sovereign immunity to
judkial review, in some cases, may
discourage tribal assumption of Title V
programs. Thus. EPA'is willing to
consider alternative options, developed
and proposed by* a tribe in the context .
of a tribal CAA Title V program
suomittal. that would not require tribes
to waive their sovereign immunity to
judicial review but at the same time.
would provide for an avenue for appeal
of tribal government action or inaction
to an independent review body and for
injuncttve-type relief to which the Tribe
would agree to be bound.
EPA has consistently stressed the
! of judicial review under
s Title V programs. Eg.. Virginia v.
Browner. 80 F.3d 869.875 (4th Or.
1996) f*EPA interprets the statute and
regulation to require, at a minimum,
that states provide judicial review of
permitting decisions to any person who
would have standing under Article m of
the United States Constitution. Notice of
Proposed Disapproval. 59 Fed. Reg.
31183.31184 Oune 17.1994)"). cat
denied 117 S.Ct 764 (1997). However
the statutory scheme regarding tribal
clean air program is quite-different
from that of states. Section 301 (d) (2) of
the Act explicitly provides EPA with the
discretion to "specify* * 'those
pivvisions for which it is appropriate to
mat Indian tribes as States." 42 US.C.
7601 (d)(l). In addition, section 301(d)(4)
of the Act states that where EPA
"determines that treatment of tribes as
identical to states is inappropriate or
administratively infeasible. (EPA) may
provide, by regulation, other means by
which (EPA) will directly administer
such provisions so as to achieve the
appropriate purpose." 42 U.S.C.
7610(d)(4). As EPA noted in the
preamble to the proposed rule, tribes
have a "unique legal status and
relationship tome Federal government
that is significantly different from that
of States. (C)ongress did not intend to
alter tills when it authorized treatment
of Tribes 'as States' under the CAA." 59
FR at 43962. n.11.
In addition, there is ample precedent
for treating tribes and states differently
under federal Indian law. E.g.. U.S.
Const, amend. XTV; Indian Civil Rights
Act 25 U.S.C. 1301 er. seq.: and Santa
Clara Pueblo v. Martinez. 436 U.S. 49
(1978). In Santa Clara the Supreme
Court addressed the availability of
federal court review of tribal action
under the Indian Civil Rights Act
(ICRA). which requires tribal
governments to provide several
protections similar to those contained in
the Bill of Rights and the Fourteenth
Amendment In finding that no
additional federal court remedies
beyond habeas corpus were provided by
Congress for review of tribal compliance
with the ICRA. the Court noted that
Congeess.hadLstruck aJnlance between
the dual statutory objectives of
enhancing individual rights without
undue Interference with tribal
sovereignty. Santa Clara, 436 U.S. at
65-66. EPA has concluded that in
enacting section 301 (d) of the Act
Congress provided EPA with the
discretion to balance the goals of
ensuring meaningful opportunities for
public participation under the CAA and
avoiding undue interference with tribal
sovereignty when determining those
provisions for which it is appropriate to
treat tribes in die same manner as states.
See Washington Department of Ecology
v. EPA 752 F.2d 1465.1469 (9th Cir.
1985) f'lt is appropriate for us to defer
to EPA's expertise and experience in
reconciling (Indian policy and
environmental policy}, gained through
administration of similar environmental
statutes on Indian lands.").
m addition to the requirement that
tribal Title V programs provide some
avenue for appeal of tribal government
action or inaction and for injunctive-
type relief. EPA may use several
oversight mechanisms to ensure that
trioal Title V programs provide adequate
opportunities for citizen recourse. Kg..
CAA sections 502(i)(requlring EPA
assumption of state or tribal Title V
programs that EPA finds are not being
adequately implemented or enforced).
505(b) (requiring EPA objection to state
or tribal Title V permits that EPA finds
do not meet applicable requirements).
Thus, under today's final rulemaking.
EPA is not requiring tribes to provide
for judicial review in the same manner
as states under CAA section 502(b)(6).
•EPA will develop guidance in the future
on acceptable alternatives to judicial
review. In reviewing the Title V
program submission of any tribe
proposing an alternative to judicial
review. EPA will apply such guidance
to determine, pursuant to its section
301 (d) authority, whether the tribe has
provided for adequate citizen recourse
consistent with the requirement in CAA
section 502(b)(6) that there be review of
final permit actions and the guidance
and principles discussed above.
EPA emphasizes that tribes seeking to
implement the Title V program will still
need to meet all the requirements of
CAA section 502(b)(6). except the
requirements mat review of final permit
actions be "judicial" and "in state
court" Specifically, tribes seeking to
implement the Title V program, will
need to provide:
(a)dequate. streamlined, and reasonable
procedures for expffdftiously deta mining
when applications are complete, for
processing such applications, for public
notice, including offering an opportunity for
public comment and a bearing, and tor
expeditious review of permit actions.
including applications, renewals, or
revisions, and including an opportunity for
• • 'review* • • of the final permit action
by the applicant any person who
participated in the public comment p
and any other person who could obtain
Judicial review of that action under
applicable law.
CAA section 502(b)(6). In addition, all
provisions of CAA section 502(b)(7) will
apply to tribal programs except the
requirements that the review be
"judicial" and in "State court."
C. Air Program Implementation in
Indian Country
The August 25.1994. proposed tribal
authority rule set forth EPA's view that
based on the general purpose and scope
of the CAA. the requirements of which
apply nationally, and on the specific
language of sections 301 (a) and
301 (d)(4). Congress intended to give to
die Agency broad authority to protect
tribal air resources. The proposal went
on to state that EPA intended to use its
authority under the CAA "to protect air
quality throughout Indian country" by
directly implementing the Act's •
requirements
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7263
acknowledges the seriousness of the
concerns identified by the commenters
and agrees that a clearer presentation of
the Agency's intentions is appropriate.
Most tribal commenters support
establishing federal air programs under
the circumstances outlined in the
proposal, but many are concerned with
the past lack of enforcement of
environmental programs on tribal lands.
Almost all commenters express concern
with the lack of a definite timetable for
federal initiation of air programs to
protect tribal air resources and prevent
gaps in protection. Tribal commenters
generally support the provision in the
proposal to develop an implementation
crfSrategyyand. a plan for reservation air
-program implementation: however, they
request that EPA develop time frames
and establish dates for developing the
implementation strategy. A state
coounenter argues that die proposal did
not sufficiently allow for state comment
or input in the development of the
implementation strategy, asserting that
both state and tribal involvement will be
necessary to avoid regulatory conflicts.
A number of government and industry
commenters suggest that EPA elaborate
on the process for developing tribal air
programs in light of the
interrelationship between existing air
programs and new tribal programs.
Another commenter requests that EPA
resolve the process for transition from
existing programs to tribal programs as
part of this rulemaking. One state
comments that the transfer must be
accomplished without'leaving sources
of air pollution and the states in air
quality "limbo" pending development
of either tribal or EPA programs to
regulate sources under the Jurisdiction
of a tribe. Another state argues mat if a
tribe has no approved program and EPA
has no reason for enforcement section
116 preserves the state's inherent
authority to regulate non-member
sauces on a reservation. One tribe asks
that the process for transferring
administration of an EP A-issued permit
for a source on tribal lands to the tribe
be made more explicit. Many tribal
commenters request technical and
administrative support in die form of
guidance documents, training, sufficient
financial resources, and EPA staff
assigned to work with tribes on tribal
CAA programs who are knowledgeable
about tribal law and concerns. These
commenters also express concern that
limited resources might prevent EPA
from providing this critical support.
As indicated above. EPA recognizes
the seriousness of the concerns
expressed in these comments and has
undertaken an initiative to develop a
comprehensive strategy for
implementing the Clean Air Act in
Indian country. The strategy will
articulate specific steps the Agency will
take to ensure that air quality problems
in Indian country are addressed, either
by EPA or by the tribes themselves. This
strategy (a draft of which is available in
the docket referenced above] addresses
two major concerns: (1) Gaps in Federal
regulatory programs that need to be
filled in order for EPA to implement the
CAA effectively in Indian country
where tribes opt not to implement their
own CAA programs: (2) identifying and
providing resources, tools, and technical
support that tribes will need to develop*
their own CAA programs.
EPA believes that the strategy being
developed addresses many of the
concerns expressed by the commenters.
Once tribal programs are approved by
EPA. tribes will have authority to
regulate all sources within the exterior
boundaries of the reservation under
such programs. One of the most
prevalent concerns is die status of
sources (current and future) in Indian
country not yet subject to the limits of
an implementation plan. Commenters
want assurance that EPA would step in
to fill this gap and ensure adequate
control. The Agency has consistently
recognized the primary role for tribes in
protecting air resources in Indian
country and has expressed its continued
commitment to work with tribes to
protect these resources in the absence of
approved tribal programs. The Agency
has issued permits and undertaken the
development of Federal Implementation
Plans (FIP) to control sources locating In
Indian country. For example, the
Agency is working with both the
Shoshone-Bannock and the Navajo
Tribes to. address pollution control of
major sources on their Reservations. The
Agency has also issued PSD
preconstruction permits to new sources
proposing to locate in Indian country.
The Agency has started to explore
options for promulgating new measures
to ensure that EPA has a full range of
programs and Federal regulatory
mechanisms to implement the CAA in
Indian country.
Since the 1994 proposal. EPA has
tried specifically to identify the primary
sources of air pollution emissions In
Indian country, and evaluate the CAA
statutory authorities for EPA to regulate
those sources pending submission and
approval of a TIP. EPA has determined
that the CAA provides the Agency with
very broad statutory authority to
regulate sources of pollution in Indian
country, but there are instances in
which EPA has not yet promulgated
regulations to implement its statutory
authority.
One example is the absence of
complete air permitting programs in
Indian country. EPA has promulgated
regulations establishing permit
requirements for major sources in
attainment areas, and issued Prevention
of Significant Deterioration permits to
new or modifying major sources. See 40
CFR 52.21. However. EPA has not
promulgated regulations for a permitting
program in Indtan country for either
minor or major sources of air pollution
emissions in nonattainment areas.
Therefore. EPA is currently drafting
nationally applicable regulations for
such minor and major source permitting
programs. The permitting programs are
expected to apply*o*pmuucUon or .
modification of air minor sources and to
major sources in nonattainment areas. In
addition, the planned permitting
program would allow existing sources to
voluntarily participate in the permitting
program and accept enforceable permit
limits. EPA regional offices would be
the permitting authority for this
program. Withrespect to Title V
operating permits. EPA has proposed to
include Indian country widdn die scope
of 40 CFR Part 71. Therefore, the Part 71
regulations would apply to all major
stationary sources of air pollution
located in Indian country.
Many CAA requirements apply in
Indian country without any further
action by the EPA. For example, the
standards and requirements of die
Standards of Performance for New
Sources. 42 U.S.C. 7411 and 40 CFR Pan
60. apply to all sources in Indian
country. Similarly, the National
Emissions Standards for Hazardous Air
Pollutants. 42 U.S.C. 7412 and 40 CFR
Part 63 apply in Indian country.
EPA has. however, identified
categories of sources of air pollution,
such as open burning and fugitive dust.
that are not covered by those
regulations. For .these categorical
sources, EPA belleves-that it has the
authority to promulgate regulations on a
national basis that would apply until a
TIP has been submitted and approved.
EPA has also identified a number of
general air quality rules, such as the
prohibition against emitting greater than
20 percent opacity, which could be
promulgated nationally for application
in Indian country pending TIP approval.
EPA is optimistic that any additional
regulations can be promulgated and
implemented relatively quickly, since.
along with the protections they would
provide, such regulations can also serve
as models which tribes can use in
drafting TEPs,
EPA wishes to emphasize that the
national rules it intends to promulgate
will be analogous to. but not the same
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in all respects, as the types of rules
generally approved into State
Implementation Plans. For example.
EPA's federal rules are likely to
represent an average program.
potentially more stringent than some
SIP rules and less stringent than others.
However, by promulgating such rules.
EPA would not be establishing, and
should not be interpreted by States as
setting, new minimal criteria or
standards that would govern its
approval of SIP rules. EPA encourages
and will work closely with all tribes
wishing to replace the future federal
regulations with TIPS. EPA intends that
its federal regulations win apply only in
those situations in Which a tribe does
not have an approved TIP.
EPA will actively encourage tribes to
provide assistance in. the development
of the proposed regulations referenced .
above to ensure that tribal
considerations are addressed and
development of die regulations will be
subject to notice and comment
rutemaking procedures.
The case'by-case nature of program'
i«iyleiuenlaUon in Indian country
mafcfs it difficult to address conceins
about plans and time lines. The
Agency's strategy for implementing the
CAA in Indian country proposes a
multi-pronged approach, one prong of
which is federal implementation
described above. The other'prongs
derive from a "grass-foots" approach in
which staff in die EPA regional offices
work with individual tribes to assess the
air quality problems and develop, in
consultation with the tribes, either tribal
or federal strategies for addressing the
problems.
1. Building Tribal Capacity. An
*wnrial component of the Agency's
CAAimplementttfon strategy is to
assess the extent to which tribes have
developed an environmental- protection
infrastructure and determine how best
to build tribal capacity to implement
dwir own CAA programs. The
assessment will be done in cooperation
with the tribes and may include any or
all of the following:
a. Meeds Assessment. An initial step
for effectively implementing the CAA in
Indian country is to identify the air
quality concerns and determine how
well the tribes are able to address them.
EPA will work with the tribes to
develop emission inventories and air
monitoring studies (where appropriate)
to determine die nature of the problem
and identify a range of potential control
strategies. From this information. EPA
and the tribes will Jointly develop, as
needed, tribal or federal implementation
plans (nPs/FIPs) to address die
problem. These TIPs/FIPs may include.
for example, controls on minor sources.
categorical prohibitory rules, area
source controls (e.g.. vapor recovery.
open burning ordinances).
b. Communication. A critical pan of
the Agency's strategy to build tribal
capacity is outreach and
communication. Outreach has already
begun as EPA regional staff worked with
tribes in their service area to draft the
Strategy for Implementing die CAA in
Indian Country. Outreach will continue
uloation of this rule: staff
will meet with Tribes in regional
meetings held throughout die country to
talk about implementing die rule and
answer questions. In follow-up to these
initial tmiatii^ie EpAiUjiU-iKtopt a multi-
media approach to communicating with
die Tribes and other stakeholders
iconterances» conference
newsletters. Internet etc.) to ensure .
timely access to information and
guidance developed in support of this
rule.
c. TnJnlng, The third
nt for
building tribal capacity is training.
providing in various forms and through
various media die skills and knowledge
needed to implement an air quality
_ protection piogiam in Indian country.
EPA already supports a training
ram at Northern Arizona University
program
(NAU) t
t offers baste introductory
workshops on air quality program
management and administration and a
more in-depdi
! in air pollution
control technology. This program.
offered at no cost to tribes, helps tribal -
environmental professionals develop
competence in air quality management.
The program abo prepares these
professionals for enrollment in lime
advanced courses in EPA's Air Pollution
Training Institute (APTD. fa addition to
these formal training opportunities. EPA
offers <"*fT
to
students-
interested in pursuing an environmental
career and supports an outreach
program in high schools in Indian
country to encourage these students'
interest in environmental protection
careers. EPA plans to encourage other
options for promoting tribal professional
development, including peer-to-peer
support, temporary assignments with
other government (state, tribal, or
federal) environmental programs, and
cooperative agreements to provide
As diese individual tribal assessments
are completed, the information will be
compiled in order to determine to what.
extent commonalities exist among die
air quality problems that might be
amenable to common solutions (e.g..
Title V. minor sources, etc.). The
Agency will work in conceit to develop
other common solutions, as needed. At
the same time. EPA is developing
guidance documents, templates, and
model analyses to assist tribes in
developing Tribal Air Programs.
Finally. EPA recognizes that air
quality problems in Indian country do
not exist in isolation and that often they
are part of a broader spectrum of
environmental problems, the solutions
for which may be best developed
through an integrated approach to
environmental protection. EPA's Office
of Air & Radiation will continue to work
with other media offices to develop
overall environmental assessments
(through die Tribal/EPA Environmental
Agreement process) for Indian country
and develop integrated- approaches i
where appropriate. One approach, for
example, might be to focus on ways to
simultaneously protect air quality, water
quality, and outer public health and
environmental values through control
strategies that reduce atmospheric
deposition of air pollutants in Indian
country.
D. CAA Sections H0(c)(l) and 502 (d) (3)
Authority
In the proposed tribal rule. EPA stated
that it was not proposing to treat tribes
in the same manner as states under its
section 30 ltd) authority with respect to
die specific provision in section
110(c) (1) that directs EPA to
promulgate, "within 2 years." a Federal
Implementation Plan (FIP) after EPA
finds that a state has railed to submit a
required plan, or has submitted an
incomplete plan, or within 2 years after
EPA has disapproved all or a portion of
a plan. 59 FR at 43965. The proposed
exception applied only for that
provision of section 110(c)(l) that sets a
specified date by which EPA must issue
a FIP. The proposal went on to state that
"EPA would continue to be subject to
the basic requirement to issue a FIP for
affected (tribal] areas within some
reasonable time." m today'-* action. EPA
is finalizing the general approach
discussed in the proposal but has
altered die method for implementing
that approach. Therefore, although the
result that was intended by the proposal
remains unchanged, after further
review. EPA is modifying the regulatory
procedure by which.lt achieves that
result and is also clarifying the
statutory basis it is relying upon for
doing so.
The proposed rule set forth EPA's
view mat one of the principal goals of
the rulemaking required under section
301 (d) is to allow tribes the flexibility to
develop and administer their own CAA
programs to as full an extent as possible,
while at the same time ensuring that the
health and safety of the public is
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protected. However, since, among other
things, tribal authority for establishing
CAA programs was expressly addressed
for the first time in the 1990 CAA
Amendments, in comparison to states.
tribes in general are in the early stages
of developing air planning and
implementation expertise. Accordingly.
EPA determined that it would be
infeasible and inappropriate to subject
tribes to the mandatory submittal
deadlines imposed by the Act on states,
and to the related federal oversight
mechanisms in the Act which are
triggered when EPA makes a finding
that states have failed to meet required
deadlines or acts to disapprove a plan
, submittal. As the proposal noted.
section 301(d)(2) provides for EPA to
promulgate regulations specifying those
provisions for which it is appropriate to
treat tribes as states, but does not
compel tribes to develop and seek
approval of air programs. In other
words, there is no date certain submittal
requirement imposed by the Act for
tribes as there is for states. Thus, since
the FTP obligation under section
110(c)(l) is keyed to plan submission
failures by states that are contemplated
wim respect to "a required submission."
and to plan disapprovals that have not
been cured within a specified time
frame, the discussion in the proposal
regarding section 110(c)(l) was
consistent with the approach
summarized above. However, given that
the statutory basis underlying section
110(c)(l) is either expressly inapplicable
to tribal plans or is linked to submittal
deadlines mat the Agency is today
determining are inappropriate or
infeasible to apply to tribal plan
submissions, tharsection as a whole—
not merely the provision setting a
specific date by which EPA must issue
a FIP—should have been included on
the list of proposed CAA provisions for
which EPA would not treat tribes in the
same manner as states.
Consequently, in this final action,
EPA has added section 110(c)(l) in its
entirety to the list of GAA provisions in
the rule portion of this action (§ 49.4) for
which EPA is not treating tribes in the
same manner as states. However, by
including die specific FIP obligation
under section 110(c)(l) on the list in
section 49.4 of this final rule. EPA is not
relieved of its general obligation under
the CAA to ensure the protection of air
quality throughout the nation, including
throughout Indian country. In the
absence of an express statutory
requirement EPA may act to protect air
quality pursuant to its "gap-filling"
authority under the Act as a whole. See.
e.g.. CAA section 301 (a). Moreover.
section 301 (d)(4) provides EPA with
discretionary authority, in cases where
it has determined that treatment of
tribes as Identical to states is
"inappropriate or administratively
infeasible." to provide for direct
administration through other regulatory
means. EPA is exercising this
discretionary authority and has created
a new section (§49.11) to this final rule
which provides that the Agency will
promulgate a FIP to protect tribal air
quality within a reasonable time if tribal
efforts do not result in adoption and
approval of tribal plans or programs.
Thus, EPA will continue to be subject to
the basic requirement to issue a FTP for
-aflaafed UJftaBneas within some -,-.
reasonable time.
The proposal notice made clear diat
even while the Agency was proposing
not to treat tribes as states for purposes
of the specified date in section 110(c)(l),
it was always EPA's intention to retain
the requirement to issue a FIP. as
necessary and appropriate, for affected
tribal areas. The'bases and rationale for
that determination are thoroughly set .
forth in 59 FR 43956 (especially at pages
43964 through 43966) and remain the
same. The only change between the
proposal and this final notice regards
the methodology used to achieve me
intended result. Le., using the Agency's
section 301 (d) (4) discretionary authority
in conjunction with its general "gap-
filling" CAA authority.
Similarly, EPA is taking final action
on its proposal not to treat tribes in a
manner similar to states for the '
provision of section 502(d)(3) which
requires issuance by EPA. within two
years of the statutory submittal
deadline, of a federal operating permit
program if EPA has not approved a state
program. The Agency has proposed.
pursuant to its section 301 (d)(4)
authority, to include in its final rule
addressing federal implementation of
operating permit programs in Indian
country a commitment to implement
such programs by a date certain in
instances where a tribe chooses not to.
implement a program or does not
receive EPA approval of a submitted
program. 62 FR 13748. In light of this
commitment EPA does not believe it is
necessary to retain the text in § 49.4 (j)
. acknowledging its federal authority. .
m. Significant Changes to the Proposed.
Regulations
A. Pan 35—State and Local Assistance
Section 35.205 Maximum Federal
Share and Section 35.220 Eligible
Indian Tribe. In its proposed rule. EPA
sought comment on the appropriate
level of tribal cost share for a section
105 grant, from a minimum of five
percent to a maximum of 40 percent
The proposal also asked for comments
on the establishment of a phase-in .
period for tribes to meet whatever match
is ultimately required for section 105
grants. Tribes universally comment that
the level of matching funds should be
kept to a minimum, Le.. five percent if
not waived altogether, especially during
the early stages of developing an air
quality program. One tribe asserts diat
Tide V cannot be viewed as die solution
to funding tribal air ptugiauiy other
financial resources must also be made
available. In addition. EPA notes diat
only a small number of tribes have
applied for sectiojrlOS grants despite
being eligible to receive such grants as
air pollution control agencies under
section 302(b)(5) and section 301 (d)(5).
EPA attributes much of die tribes'
reluctance to apply for these grants to
the match requirement of forty percent
diat has been applicable to all section
lOSgrants.
EPA agrees with the commenters that
tribal resources generally are not
adequate to warrant the level of match
required of states and that equivalent
resources are unlikely to become
available in the foreseeable future. A
high match-requirement would likely
discourage interested tribes from
developing and implementing air
programs. It is not appropriate to
compare die resources available forme
development of state piogiau& to mat of
tribes because tribes often lack the
resounds or tax infrastructure available
to states for meeting cost share
requirements. Furthermore, a low match
requirement witii a hardship waiver, is
consistent with federal Indian policy
which encourages the removal of
obstacles to self-government and
impediments to tribes Implementing
dwir own programs.-
Accordingly. EPA has determined diat
it is Inappropriate to treat tribes
identically to states forme purpose of
the match requirement of section 105
grants, therefore, pursuant to its
authority under section 301(d)(4), EPA
will provide a maximum federal
contribution of 95 percent for financial
assistance under .section 105 to those
tribes eligible for treatment in the same
manner as states for two years from the
initial grant award. After the initial two-
year period of 5 percent match. EPA
will increase each tribe's minimum cost
share to 10 percent as long as EPA
determines that the tribe meets certain
objective and. readily-available
economic indicators that would provide
an objective assessment of die tribe's
ability to increase its share. Within
eighteen months of the promulgation of
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this rule, the Agency will, with public
input develop guidance setting forth
the precise procedures for evaluating
tribal economic circumstances and will
identify those economic indicators (for
example, tribal per capita income, tribal
unemployment rates, etc.) that will be
used to support its determinations.
The tribal match will not be waived
unless the tribe can demonstrate in
writing to die satisfaction of the
Regional Administrator that fiscal
rImtTTKtaof^g nil^|||yj ^h» frrina arp
constrained to such an. extent diat
fulfilling me match would impose
undue hardship. TWs waiver provision
is designed to be veryrareh/used. The
Agency does not foresee any
circumstances that would Justify
eliminating diis waiver provision for
those eligible tribes diat are able to
demonstrate diat meeting die match
requirement would result in undue
financial hardship, .This waiver
provision is not available to tribes diat
establish eligibility for a section 105
grant pursuant to § 3&220(b).
The EPA will examine die experience
of diis program and other relevant
information to determine appropriate
king-term cost share rates within five
years of die date of publication of this
rule.
Finally, die definition of Indian Tribe
in § 35.105 has been changed to make it
4-qtrejyjifnt vith nV definition ft>M"J in
the CAA at section 302(r) and the
definition in §49.2.
B. Title V Operating Permits Program:
Operational flexfbJIfry
The Agency received comments that
objected to die proposed rule's position
that tribal part 70 programs would not
be required to Include die same
operational flexibility provisions
required of state part 70 programs. The
proposal preamble suggested diat die .
three operational flexibility provisions
at 40 CFR 70.4(b)(12) would be optional
for tribes as would 40 CFR 70.6(a)(8). 40
CFR 70.6(a)(10). and 40 CFR 70.6(a)(9).
A brief description of each of diese
provisions follows.
The diree operational flexibility
provisions in § 70.4(b)(12) require
permitting audiorities to: (1) allow
certain changes within a facility without
requiring a permit revision: (2) allow for
trading increases and decreases in
emissions in die facility where die
applicable implementation plan
provides for such trading: and (3) allow
trading of emissions Increases and
decreases in the facility for the purposes
of complying with a federally-
enforceable emissions cap diat is
of the Act EPA has proposed to modify
diese provisions, by deleting the first
provision and making some technical
clarifications to the third provision. See
60 FR 45529 (August 31. 1995):
Section 70.6(a)(8) requires as a
standard condition diat permits contain
a provision stating diat no permit
revision shall be required under any
approved economic incentives.
marketable permits, emissions trading
and odier similar programs or processes
for changes diat are provided for in the
permit.
Section 70.6(a)(10) requires a standard
condition (upon request of the
applicanti^iat allows for emissions
trading at a souroe-tfthe^appbcable
requirement provides for trading
without a case-by case approval of each
emission-trade.
Section 70.6(a)(9) requires as a
standard condition (upon request of die
applicant and approval by die
permitting authority) terms diat describe
reasonably anticipated operating
scenarios.
Initially. EPA believed mat the
implement operational flexibility
provisions would make it too difficult
for tribal programs to obtain EPA
approval. Accordingly, die Agency
proposed ttiat for purposes of these
provisions, tribes would not be treated
in die same manner as states. Howevec.
EPA now believes diat a better
in criminal enforcement of tribal
programs. Where tribes are precluded by
law from asserting criminal enforcement
authority, the federal government will
exercise criminal enforcement
responsibility. To facilitate this process.
die Criminal Investigation Division
office located at die appropriate EPA
regional office and die tribe will
establish a procedure by which any duly
authorized agency of die tribe (tribal
environmental program, tribal police
force, tribal rangers, tribal fish and
wildlife agents, tribal natural resources
office, etc.) shall provide timely and
appropriate investigative leads to any
agency of the federal government (EPA.
US. Attorney. BIA. FBI etc.) which has
authority to enforce die criminal
provisions of federal environmental
statutes. This procedure will be
incorporated into die Memorandum of
Agreement between the tribe and EPA.
Nothing in die agreement shall be
established in die permit These
provisions implement section 502 (b) (10)
would be to treat tribes in me same
manner as states for purposes of these
provisions, while providing sufficient
technical •»n¥Ar**~, if needed, to enable
tribes to issue permits diat meet these
operational flexibility requirements.
Such an approach wiU assure mat
sources will be provided maxtmurn
Hexibfltry regardless of whether the
permitting agency is a tribal or state
agency. In addition, it will afford
sources that an subject to tribal part 70
programs die benefit bt streamlined
provisions triat have been proposed for
part 70.
C. Section 49.4 dean Air Act
Provisions for Which Tribes Will Not Be
Treated In the Same Manner as States
Based on the comments received
regarding tribal sovereign immunity and
citizen suits (see discussion at ILB). EPA
is witiidrawing its- proposal to treat
tribes as states for purposes of section
304 and the Judicial review provisions
of sections 502 (b) (6) and 502 (b) (7) of the
Act and has revised § 49.4 accordingly.
D. Section 49.8 Provisions for Tribal
Criminal Enforcement Authority
EPA is modifying die language under
tills provision to clarify die federal role
construed to limit the exercise of
criminal enforcement authority by die
tribe under any circumstances where
die tribe may possess such authority.
£ Section 49.9. EPA Review of Tribal
Clean Air Act Applications
New Process for Determining Eligibility
of Tribes for CAA Programs
Many state, local
it and
industry commenters suggest that the
proposed 15-day review period
provided by EPA to identify potential
disputes regarding a tribal applicant's
assertion of reservation boundaries and
jurisdiction over non-reservation areas
should be extended. Suggested changes
to die proposed 15-day review period
range from 30 to 120 days. Commenters
cite die ivH*"*'lfrl complexity of
Jurisdictional issues and die amount of
time required to respond adequately.
especially for non-reservation areas.
These cmmnmteK also express coi
diat notice and an opportunity for
nt regarding reservation .
hntmriartog and tribal Jurisdiction over
non-reservation areas is being limited to
"appropriate governmental entities."
Industry
ters suggest diat notice
and opportunity for comment also be
provided to die regulated community, as
well as odier interested parties (e.g..
landowners whose property could
potentially fall under tribal
jurisdiction). In addition, one industry
commenter states diat such
determinations should be viewed as
nilemakings under die Administrative
Procedures Act (APA) and. thus, subject
to public notice and comment-
Consistent with the TAS process
which EPA has historically
implemented under die Clean Water
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and Safe Drinking Water Acts, the
preamble to EPA's proposed rule on
tribal CAA programs stated that the
CAA TAS process "will provide States
with an opportunity to notify EPA of
boundary disputes and enable EPA to
obtain relevant information as
needed[.]" SfrFR at 43963. The proposal
also indicated that a principal concern
in developing the eligibility process was
to streamline the process to eliminate
needless delay. Id. In proposing to limit
the notice and comment provision to
"appropriate governmental entities" and
the period within which to respond to
15 days with the possibility of a one-
time extension of another 15 days. EPA
gfcasgtefiettlly affirming prior "treatment
as state" (TAS) practice. EPA notes that
neither the Water statutes nor die CAA
mandates a specific process regarding
TAS determinations. Including
jurisdiction. Under CAA section
301 (d)(2)(B). EPA must evaluate
whether a tribe has demonstrated that
the air resource activities it seeks to
regulate are either within a reservation
area, or within a non-reservation area
over which the tribe has Jurisdiction. In
doing so. the Agency has provided for
notice and a limited opportunity for
input respecting the existence of
competing claims over tribes'
reservation boundary assertions and
assertions of jurisdiction over non-
reservation areas to "appropriate
governmental entities." which the
Agency has defined as states, tribes and
other federal entities located contiguous
to the tribe applying for eligibility. See
generally. 56 FR 64876.64884 (Pec. 12.
1991). This practice recognizes, in part
that to the extent genuine reservation
boundary or non-reservation
jurtsdictional disputes exist the
assertion of such are an inherently
government-to-government process.
Nonetheless. EPA seeks to make its
notification sufficiently prominent to
inform local governmental entities.
industry and the general public, and
will consider relevant factual
information from these sources as well.
provided (for the reason given above)
they are submitted through the
identified "appropriate governmental
entities." In making determinations
regarding eligibility in the context of the
Water Acts. EPA has explained that the
part of the process that involves
notifying "appropriate governmental
entities" and inviting them to review
the tribal applicant's Jurisdictional
assertion is designed to be a fact-finding
procedure to assist EPA in making these
statutorily-prescribed determinations
regarding die tribes'jurisdiction: it is
not in any way to be understood as
creating or approving a state or non-
tribal oversight role for a statutory
decision entrusted to EPA. For these
reasons. EPA also disagrees with the
industry commenter about the status of
these decisions under the APA Given
that there is no particular process
specified under EPA governing statutes
for TAS eligibility determinations, they
are in the nature of informal
adjudications for APA purposes. As
such. EPA does not believe there is a
legal requirement for any additional
process than what the Agency already
provides. By contrast EPA decisions
regarding tribal authority to implement
CAA programs generally are rulemaklng
actions involving public notice and
comment in the Federal Register. The
approach in the proposed CAA rule was
intended to follow the above process.
including its imposed limitations (such
as a 15-day review period), to ensure
that overall eligibility decisions should
not be delayed unduly.
In today's rulemaklng. EPA recognizes
that the potential complexities of
reservation boundary and non-
reservation Jurisdictional issues may
require additional review time and is
finalizing an Initial notice and comment
period of 30 days with the option for a
one-time extension of 30 days for
disputes over non-reservation areas.
should the issues identified by the
teiiteis waciant such extemdion.
EPA agrees that In some cases issues
regarding tribal Jurisdiction over non-
reservation areas may be complex and
may require more extensive analysis.
However. EPA believes mat many.
Jurisdictional claims will be non-
controversial and will not elicit adverse
comments. In these instances, a
comment period in excess of 30 days is
not warranted. If. however, the tribal
claims involve non-reservation areas
and require more extensive analysis, an
extension to the comment period may
be warranted. In all cases, comments
from appropriate governmental entitles
must be offered in a timely manner, and
must be limited to the tribe's
Jurisdictional assertion.
State and industry commenters
question the appropriateness of the
language in §49.9 of the regulatory
portion of die proposal which states that
eligibility decisions regarding a tribe's
jurisdiction will be made by EPA
Regional Administrators, as it appears to
imply dial Jurisdictional disputes will
always be resolvable at the Agency
level. EPA continues to believe that the
Regional Administrators are the
appropriate decision makers for tribal
eligibility purposes, including
Jurisdictional assertions. However, the
Agency does agree that the language, as
written, may have-been confusing.
Consequently, EPA has modified the
first sentence of § 49.9(e). As explained
previously. EPA has been making
eligibility decisions pursuant to the TAS
process under other environmental
statutes for some time now. The TAS
process set forth in this rule, including
the process for making tribal
Jurisdictional determinations, is
consistent with the approach followed
by EPA in related regulatory contexts.
EPA notes again that it believes that
many submissions regarding
Jurisdiction by tribes requesting
eligibility determinations will be non-
controversiaL
This final rulejUgwsjjribesJto submit
simultaneously tb^EPA a request for an
eligibility determination and a request
for approval of a CAA program. In such
circumstances. EPA will likely
announce its decision with respect to
eligibility and program approval in the .
same Federal Register notice, for
purposes of administrative convenience.
However. EPA-does not intend this
simultaneous decision process of itself
to be interpreted as altering the .
Agency's view (described above)
regarding APA applicability with
respect to notice and review
opportunities provided to appropriate
governmental entities wim respect to
tribal reservation boundary and non-
reservation Jurisdictional assertions.
F. Section 49.11 Actions Under
Section 301 (d)(4) Authority
This section addresses the regulatory
provisions being added to this rule
pursuant to CAA section 301 (d)(4). See
discussion at Part ff P above.
IV. Miscellaneous
A. Executive Order (EO) 12866
Section 3(0 of EO12866 defines
"significant regulatory action" to mean
any regulatory action that is likely to
result in a rule mat may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the .
economy, a sector of the economy.
productivity, competition. Jobs, the
environment public health or safety, or
state, local or tribal governments or
communities:
(2) Create a serious-inconsistency or
otherwise interfere with an action taken
or planned by another agency.
(3) Materially alter the budgetary
impact of entitlements, grants, user fees.
or loan programs or the rights and
obligations of recipients thereof: or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in this Executive order.
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This rule was determined to be a
significant regulatory action. A draft of
this rule was reviewed by the Office of
Management and Budget (OMB) prior to
publication because of anticipated
public interest in this action including
potential interest by Indian tribes and
state/local governments.
EPA has placed the following
information related to OMB's review of
tills proposed rule in the public docket
referenced at the beginning of this
notice:
(1) Materials provided to OMB In
conjunction with OMB's review of this
rule: and
(2) Materials that Identify substantive
change* aifle 'btWeejl ihe submittal of
a draft rule to OMB and this notice, and
that identify those changes that were .
made at the suggestion or
recommendation of OMB. .
B. Regulatory FkadbUlty Act (RFA)
Under the RFA. 5 U.S.C. 601-612.
EPA must prepare, far rules subject to
notfce-and-comment rutemaktng. initial
and final Regulatory Flexibiliry
Analyses describing thelmpact on small
entities. The RFA defines small entities
as follows:
—Small businesses. Any business
vvhich is independently owned and
operated and is not dominant in its
field as defined by Small Business
section 3 of the Small Business Act
— Small govamnmn
Governments
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
7269
including tribal governments, section
203 of the UMRA requires EPA to
develop a plan for informing and
advising any small government. EPA
consulted with tribal governments
periodically throughout the
development of the proposed rule, and
met directly with tribal representatives
at three major outreach meetings. Since
issuance of the proposed rule. EPA also
received extensive comments from, and
has been in communication with, tribal
governments regarding all aspects of
this rule. The Agency is also committed
to providing ongoing assistance to tribal
governments seeking to develop and
submit CAA programs for approval.
D. Paperwork Reduction Act .
OMB has approved the information
collection requirements pertaining to
grants applications contained in this
rule under the provisions of the
Paperwork Reduction Act 44 U.S.C.
3501. erseo. and has assigned OMB
control number 2030-0020.
This collection of information
pertaining to the grants application
process has an estimated reporting
burden averaging 29 hours per response
and an estimated annual record keeping
burden averaging 3 hours per
respondent. These estimates include
time for reviewing instructions.
searching existing data sources,
garnering and maintaining the data
needed, and completing and reviewing
the collection of information.
The Office of Management and Budget
has also approved the information
collection requirements pertaining to an
Indian tribe's application for eligibility
to be treated in the same manner as a
state or "treatment as state" as provided
by this rule under the Paperwork
Reduction Act. 44 U.S.C. 3501. et seq.
and has assigned OMB control number
2060-0306. This rule provides that each
tribe voluntarily choosing to apply for
eligibility is to meet eligibility by
demonstrating it (1) Is a federally
recognized tribe; (2) has a governing
body carrying out substantial
governmental duties and powers; and
(3) is reasonably expected to be capable
of carrying out the program for which it
is seeking approval in a manner
consistent with the CAA and applicable
regulations. If a tribe is asserting
jurisdiction over non-reservation areas.
it must demonstrate that the legal and
factual basis for its jurisdiction is
. consistent with applicable principles of
federal Indian law.
This collection of information for
treatment in the same manner as states
to carry out the Clean Air Act has ae
estimated reporting burden of 20 annual
responses, averaging 40 hours per
response and an estimated annual
record keeping burden averaging 800
hours. These estimates include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information. Burden means the total
time, effort, or financial resources
expended by persons to generate.
maintain, retain, or disclose or provide
information to or for a federal agency.
This includes the time needed to review
instructions; develop, acquire, install,
and utilize technology and systems for
the purposes of collecting, validating.
and verifying information, processing
and maintainingjnfonnattoa^and
disclosing and providing information;
adjust the existing ways to comply with
any previously applicable instructions
and requirements; train personnel to be
able to respond to a collection of
information; search data sources;
complete and review the collection of.
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to. a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15. EPA is amending the table in 40 CFR
Part 9 of currently approved ICR control
numbers issued by OMB for various
regulations to list the information
requirements contained in this final
rule.
£ Submission to Congress and the
Genera/Accounting Office
Under 5 U.S.C. 801(a)(l)(A) as added
by the Small Business Regulatory
Enforcement Fairness Act of 1996. EPA
submitted a report containing this rule
and other required information to the
U.S. Senate, the U^.^House of
Representatives and the Comptroller
General of the General Accounting
Office prior to publication of the rule in
today's Federal Register. This rule is
not a "major rule" as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 9
Environmental protection. Reporting
and recordkeeping requirements.
40 CFR Part 35
Environmental protection. Air
pollution control. Coastal zone. Grant
programs—environmental protection.
Grant programs—Indians. Hazardous
waste, Indians. Intergovernmental
relations. Pesticides and pests.
Reporting and recordkeeping
requirements. Superfund. Waste
treatment and disposal. Water pollution
control. Water supply.
40 CFR Part 49
Environmental protection. Air
pollution control. Administrative
practice and procedure. Indians,
Intergovernmental relations. Reporting
and recordkeeping requirements.
40CFRPart50
Air pollution control. Carbon
monoxide. Lead. Nitrogen dioxide.
Ozone. Paniculate matter. Sulfur oxides.
40CFRPart8J
Environmental protection. Air
pollution control. National parks.
Wilderness areas.
Dated: February 3.1998.
Carol M. Browner.
Administrator.
For the reasons set out in the
Preamble. title^O. chapter I of the Code
of Federal Regulations is amended as set
forth below.
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 et seq.. 136-136y:
15 U.S.C. 2001.2003.2005.2006.2601-2671:
21 U.S.C. 331J. 346a. 348:31 U.S.C. 9701:33
U.S.C. 1251 et seq.. 1311.1313d. 1314.1318.
1321.1326.1330.1342.1344.1345 (d) and
(e). 1361: EO. 11735.38 FR 21243.3 CFR.
1971-1975 Comp. p. 973:42 U.S.C. 241.
242b. 243.246.300f. SOOg. 300g-l. 300g-2.
300g-3.300g-4.300g-5.300g-6.300J-1.
300J-2.300^3.300J-4.300J-9.1857 et seq..
6901-6992k. 7401-7671q. 7542.9601-9657.
11023.11048.
2. In §9.1 the table is amended by
adding a heading and entries in
numerical order to read as follows:
§9.1 OMB approvals under the Paperwork
Reduction Act
• • * . • *
40 CFR citation
OMB con-
trol No.
Indian Tribes:
Air Quality Planning and Management
49.6 2060-0306
49.7 2060-0306
PART 35—STATE AND LOCAL
ASSISTANCE
3. The authority cite for part 35.
subpart a, continues to read as follows:
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7270
Federal Register /Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
Authority: Sees. 105 and 301 (a) of the
Clean Air Act. as amended (42 U.S.C. 7405
and 7601(a»; Sees. 106.205(g). 205(j). 208.
319. 501 (a), and 518 of the Clean Water Act.
as amended (33 U.S.C. 1256. 1285(g). 1285(j).
1288. 1361 (a) and 1377): sees. 1443. 1450.
and 1451 of the Safe Drinking Water Act (42
US.C. 300J-2.300j-9 and 300j-l 1): sees.
2002(a) and 3011 of the Solid Waste Disposal
Act. as amended by the Resource
Conservation and Recovery Act of 1976 (42
U.S.C. 6912U). 6931.6947. and 6949): and
sees. 4.23. and 25(a) of the Federal
Insecticide. Fungicide and Rodenadde Act
as amended (7 U.S.C. 136Q4.136(u) and
136w(a».
4. Section 35.105 is amended by
revising the definitions for'•Eligible
Indian Tribe." "Federal Indian
Reservation." and the first definition far
"Indian Tribe." and by removing the
second definition for "Indian Tribe" to
read as follows:
135.105 Definitions,
Eligible Indian Tribe means:
(1) For purposes of die Clean Water
Act arty federally recognized Indian
Tribe that meets die requirements set
forth at 40 CFR 130.6(d): and
(2) For purposes of die Clean Air Act
any federally recognized Indian Tribe
diat meets the requirements set forth at
§35.220.
Federal Indian Reservation means far
purposes of the Clean Water Act or the
Clean Air Act all land within die limits
of any Indian reservation under the
Jurisdiction of the United States
government notwithstanding die
issuance of any patent and including
rights-of-way running through the
reservation.
Indian Tribe means:
(1) Within die context of die Public
Water System Supervision and
Underground Water Source Protection
grants, any Indian Tribe having a
federally recognized governing body
carrying out substantial governmental
duties and powers over a defined area.
0) For purposes of die dean Water •
Act any Indian Tribe, band, group, or
community recognized by die Secretary
of the Interior and exercising
governmental authority over a federal
Indian reservation.
(3) For purposes of the dean Air Act
any Indian Tribe, band, nation, or other
. organized group or community.
including any Alaskan Native Village.
which is federally recognized as eligible
for the special programs and services
provided by the United States to Indians
because of their status as Indians.
« * » « •
5. Section 35.205 is amended by
adding new paragraphs (c). (d). and (e)
to read as follows:
§35205 Maximum Federal share.
* * * * *
(c) For Indian Tribes establishing
eligibility pursuant to § 35.220(a). the
Regional Administrator may provide
financial assistance in an amount up to
95 percent of the approved costs of
planning, developing, establishing, or
improving an air pollution control
program, and up to 95 percent of the
approved costs of maintaining that
program. After two years from the date
of each Tribe's initial grant award, die
Regional Administrator will reduce the
maximum federal share to 90 percent as
long as the Regional Administrator
determines mat the Tribe meets certain
out an applicable implementation plan
under section 110 of the Clean Air Act.
the Regional Administrator may
increase the maximum federal share if
the intertribal agency can demonstrate
in writing to the satisfaction of the
Regional Administrator that fiscal
circumstances within the member
Tribes are constrained to such an extent
that fulfilling the match would impose
undue hardship. This waiver provision
is designed to be very rarely used.
(e) The Regional Administrator may
provide financial assistance in an
amount up to 60 percent of die
approved costs of planning, developing.
establishing, or improving an air
an objective;
nic indicators diatwouldprdvide' .-*jpolliitian control program, and up to
nt of the Tribe's
ability to increase its share. The EPA
wiU examine the experience of this
program and odier relevant information
todetetuiin
late long-term cost
share rates within five years of February
12.1998. For Indian Tribes establishing
eligibility pursuant to § 35.220
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Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations 7271
Control (section 106)" to read as
follows:
§35.220 Eligible Indian Trios*.
The Regional Administrator may
make Clean Air Act section 105 grants
to Indian Tribes establishing eligibility
under paragraph (a) of this section.
without requiring the same cost share
that would be required if such grants
were made to states. Instead grants to
eligible Tribes will include a tribal cost
share of five percent for two years from
the date of each Tribe's initial grant
award. After two years, the Regional
Administrator will increase die tribal
cost share to ten percent, as long as the
Regional Administrator determines that
the Tribe-meets certain-economic
indicators that would provide an
objective assessment of die Tribe's
ability to increase its cost share. •
Notwithstanding the above, the Regional
Administrator may reduce the required
cost share of grants to Tribes that
establish eligibility under paragraph (a)
of this section if the Tribe can
demonstrate in writing to the
satisfaction of the Regional
Administrator that fiscal circumstances
within the Tribe are constrained to such
an extent that fulfilling the match would
impose undue hardship. This waiver
provision is designed to be very rarely
used.
(a) An Indian Tribe is eligible to
receive financial assistance if it has
demonstrated eligibility to be treated in
the same manner as a state under 40
CFR49.6.
(b) An Indian Tribe that has not made
a demonstration under 40 CFR 49.6 is
eligible for financial assistance under 42.
U.S.C. 7405 and 7602(b)(5).
(c) The Administrator shall process a
tribal application for financial
assistance under dils section in a timely
manner.
9. Part 49 is added to read as follows.:
PART 49—TRIBAL CLEAN AIR ACT
AUTHORITY
Sec.
49.1 Program overview.
492 Definitions.
493 General Tribal Clean Air Act authority.
49.4 Clean Air Act provisions for which it
is not appropriate to treat tribes In the
same manner, as imi
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7272 Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
substantially meets the requirements of
Title V. but is not fully approvable.
0) The provisions of section 503(c) of
the Act that direct permitting authorities
to establish a phased schedule assuring
that at least one-third of the permit
applications submitted within the first
full year after the effective date of an
operating permit program (or a partial or
interim program) will be acted on by the
permitting authority over a period not to
exceed three years after the effective
date.
(m) The provisions of section 507(a)
of the Act mat specify a deadline for the
sufandttal of plans for establishing a
small business stationary source
technical and environmental
complia
(n) Th
ce assistance program.
of se
The provisions of section 507(e) of
the Act that direct the establishment of
a Compliance Advisory Panel.
(o) The provisions of section 304 of
die Act that read together with section
302(e) of the Act authorize any person
who provides the minimum required
advance notice to bring certain civil
actions in the federal district courts
against states In their capacity as states.
(p) The provisions of section 502(b)(6)
of the Act mat require that review of a
final permit action under the Title V
• pei milling program be "Judicial" and
"In State court." and the provisions of
section 502(b)(7) of the Act that require
that review of a failure on the pan of the
permitting authority to act on permit
applications or renewals by the time
periods specified in section 503 of the
Act be "judicial" and "in State court"
(q) The provision of section 105(a)(l)
that limits the maximum federal share
for grants to pollution control agencies
to three-fifths of the cost of
implementing programs for the
prevention and control of air pollution
or implementation of national primary
and secondary ambient air quality
standards.
f 49J Tribal
Air Act provtatora far which t tenet
Arty tribe may request that the
Administrator specify additional
provisions of die Clean Air Act for
which it would be inappropriate to treat
tribes in general in the same manner as
states. Such request should clearly
identify the provisions at issue and
should be accompanied with a
statement explaining why it is
inappropriate to treat tribes in the same
manner as states with respect to such
provisions.
the Administrator to treat an Indian
tribe in the same manner as a state for
the Clean Air Act provisions identified
in §49.3 if the Indian tribe meets the
following criteria:
(a) The applicant is an Indian tribe
recognized by the Secretary of the
Interior;
(b) The Indian tribe has a governing
body carrying out substantial
ntal duties and functions:
(c) The functions to be exercised by
dw Indian tribe pertain to the
management and protection of air
resources within the exterior boundaries
of the reservation or other areas within
the tribe's jurisdiction: and
(d) The Indian tribe is reasonably
•expected to be capable, in the EPA
Regional Adiulnisuaiur s judgment of
carrying out the functions to be
exercised In a manner consistent with
the terms and purposes of ttie Clean Air
Act and all applicable regulations.
nocjueat By en IndMn tnoo vor
tt detarmlnaMon and dean Ah- Act
(a) An Indian tribe may apply to the
EPA Regional Administrator fora-
determination that it meets die
eligibility lequliements of S 49.6 for
Clean Air Act program approval. The
application shall concisely describe
how the Indian tribe will meet each of
die requirements of 5 49.6 and should
include the following information:
(1) A statement that nie applicant is
an Indian tribe recognized by the
Secretary of the Interior.
(2) A descriptive statement
demonsuallng that the applicant is
currently <
b__ _^__A —
HE OUT
Sections 301 (d) (2) and 302(r). 42
U.S.C. 7601 (d)(2) and 7602(r). authorize
ntal duties and powers over a
defined area. This statement should:
(0 Describe the form of the tribal
(U) Describe the types of government
functions currently performed by the
tribal governing body such as, but not
limited to. die exercise of police powers
affecting (or relating to) the health.
safety, and welfare of the affected
population: taxation: and the exercise of
die power of eminent domain: and
(iii) Identify the source of the tribal
government's authority to carry out the
governmental functions currently being
performed.
(3) A descriptive statement of the
Indian tribe's authority to regulate air
quality. For applications covering areas
within the exterior boundaries of the
applicant's reservation the statement
must identify with clarity and precision
the exterior boundaries of the
reservation Including, for example, a
map and a legal description of the area.
For tribal application^ covering areas
outside the boundaries of a reservation
the statement should include:
(i) A map or legal description of the
area over which the application asserts
authority: and
(ii) A statement by the applicant's
legal counsel (or equivalent official) that
describes the basis for the tribe's
assertion of authority (including the
nature or subject matter of the asserted
regulatory authqrlty) which may include
a copy of documents such as tribal
constitutions, by-laws, charters.
executive orders, codes, ordinances.
and/or resolutions that support the
tribe's assertion of authority.
(4) A narrative statement describing
the capabiliry of the applicant to
administer effectively any Clean Air Act
ptugj am for which the .tribe is seeking •
approval. The narrative statement must
demonstrate the applicant's capabiliry
consistent with die applicable
provisions of the Clean Air Act and
implementing regulations and. if
requested by the Regional
Administrator, may include:
0) A description of the Indian tribe's
previous management experience which
may include the administration of .
programs and services authorized by the
Indian Self-Determination and
Education Assistance Act (25 U.S.C.
450. erse$). the Indian Mineral
Development Act (25 U.S.C. 2101. er
seq.). or the Indian Sanitation Facility
Construction Activity Act (42 U.S.C.
2004a):
(U) A list of existing environmental or
public health programs administered by
the tribal governing body and a copy of
related tribal laws, policies, and
regulations:
(iii) A description of the entity (or
entities) that exercise die executive.
legislative, and judicial functions of the
tribal goveiiimcnt:
(TV) A description of the existing, or
proposed, agency of the Indian tribe that
will assume primary responsibility for
administering a Clean Air Act program
(Including a description of the
relationship between the existing or
proposed agency and its regulated
entities):
(v) A description of the technical and
administer and manage an effective air
quality program or a plan which
proposes how die tribe will acquire
administrative and technical expertise.
The plan should address how the tribe
will obtain the funds to acquire die
administrative and technical expertise.
(5) A tribe that is a member of a tribal
consortium may rely on die expertise
and resources of the consortium in
demonstrating under paragraph (a) (4) of
this section that the tribe is reasonably
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»
Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations 7273
expected to be capable of carrying out
the functions to be exercised consistent
with § 49.6{d). A tribe relying on a
consortium in this manner must provide
reasonable assurances that the tribe has
responsibility for carrying out necessary
functions in the event the consortium
fails to.
(6) Where applicable Clean Air Act or
implementing regulatory requirements
mandate criminal enforcement
authority, an application submitted by
an Indian tribe may be approved if it
meets die requirements of § 49.8.
(7) Additional information required
by the EPA Regional Administrator
which, in the judgment of the EPA
-Regional Administrator, is necessary to
support an application.
(8) Where the applicant has
previously received authorization for a
Clean Air Act program or for any other
EPA-adminlstered program, die
applicant need only identify the prior
authorization and provide the required
information which has not been
submitted in the previous application.
(b) A tribe may simultaneously submit
a request for an eligibility determination
and a request for approval of a Clean Air
Act program.
(c) A request for Clean Air Act
program approval must meet any
applicable Clean Air Act statutory and
regulatory requirements. A program
approval request may be comprised of
only partial elements.of a Clean Air Act
program, provided that any such
elements are reasonably severable. that
is. not Integrally related to program
elements that are not included in the
plan submittal. and are consistent with
applicable statutory and regulatory
requirements.
§49.8 Provisions far tribal criminal
Mfc*c«Mtt authority.
To the extent that an Indian tribe is
precluded from asserting criminal
enforcement authority, the federal
government will exercise primary
criminal enforcement responsibility.
The tribe, with die EPA Region, shall
develop a procedure by which the tribe
will provide potential investigative
leads to EPA and/or other appropriate
federal agencies, as agreed to by the
parties, in an appropriate and timely
manner. This procedure shall
encompass all circumstances in which
the tribe is incapable of exercising
applicable enforcement requirements as
provided in § 49.7(a)(6). This agreement
shall be incorporated into a
Memorandum of Agreement with the
EPA Region.
§49.9 EPA review of tribal Clean Air Act
applications.
(a) The EPA Regional Administrator
shall process a request of an Indian tribe
submitted under § 49.7 in a timely
manner. The EPA Regional -
Administrator shall promptly notify die
Indian tribe of receipt of the application.
(b) Within 30 days of receipt of an
Indian tribe's initial, complete
application, die EPA Regional
Administrator shall notify all
appropriate governmental entities.
(1) For tribal applications addressing
air resources within the exterior
boundaries of the reservation. EPA's
notification of other governmental
entities shall specify the geographic
boundaries of die reservation.
(2) For tribal applications addressing
non-reservation areas. EPA's
notification of other governmental
entities shall include the substance and
bases of die tribe's Jurisdictional
assertions.
(c) The governmental entities shall
have 30 days to provide written
comments to EPA's Regional
Administrator regarding any dispute
concerning the boundary of die
reservation. Where a tribe has asserted
jurisdiction over non-reservation areas.
appropriate governmental entities may
request a single 30-day extension to the
general 30-day comment period.
(d) In all cases, comments must be
timely, limited to the scope of die tribe's
jurisdicdonal assertion, and clearly
explain die substance, bases, and extent
of any objections. If a tribe's assertion is
subject to a conflicting claim, the EPA
Regional Administrator may request
additional information from the tribe
and may consult with die Department of
the Interior.
(e) The EPA Regional Administrator
shall decide the jurisdictional scope of
die tribe's program. If a conflicting
claim cannot be promptly resolved, die
EPA Regional Administrator may
approve that portion of an application
addressing all undisputed areas.
(f) A determination by die EPA
Regional Administrator concerning die
boundaries of a reservation or tribal
jurisdiction over non-reservation areas
shall apply to all future Clean Air Act
applications from that tribe or tribal
consortium and no further notice to
governmental entities, as-described in
paragraph (b) of this section, shall be
provided, unless die application
presents different jurisdictional issues
or significant new factual or legal
information relevant to jurisdiction to
the EPA Regional Administrator.
(g) If the EPA Regional Administrator
determines that a tribe meets die
requirements of § 49.6-^or purposes of a
Clean AirAct provision, the Indian tribe
is eligible to be treated in the same
manner as a state with respect to that
provision, to die extent that the
provision is identified in §49.3. The
eligibility will extend to all areas within
the exterior boundaries of the tribe's
reservation, as determined by die EPA
Regional Administrator, and any other
areas the EPA Regional Administrator
has determined to be within die tribe's
jurisdiction.
(h) Consistent with the exceptions
listed in §49.4. a tribal application
containing a Clean Air Act program
submittal will be reviewed by EPA in
accordance with applicable statutory
and regulatory criteria in a manner .
simffla«ifftne'way:EPA would review f~
similar state submittal.
(i) The EPA Regional Administrator
shall return an incomplete or
disapproved application to die tribe
with a summary of the deficiencies.
§49.10
progr
EPA review of
Clean Air Act
A state Clean?0r Act program
submittal shall not be disapproved
because of failure to address air
resources within the exterior boundaries
of an Indian Reservation or otiier areas
within the jurisdiction of an Indian
tribe.
§49.11 Actions under section 301(dX4)
Authority*
Notwithstanding any determination
made on die basis of authorities granted
the Administrator under any other
provision of this section, die
Administrator, pursuant to die
discretionary authority explicitly
granted to die Administrator under
sections 301 (a) and 301 (d) (4):
(a) Shall promulgate without
unreasonable delay such federal
implementation plan provisions as are
necessary or appropriate to protect air
quality, consistent with the provisions
of sections 304 (a) and 301 (d) (4). if a
tribe does not submit a tribal
implementation plan meeting die
completeness criteria of 40 CFR pan 51.
Appendix V. or does not receive EPA
approval of a submitted tribal
implementation plan.
(b) May provide up to 95 percent of
the cost of implementing programs for
die prevention and control of air.
pollution or implementation of national
primary and secondary ambient air
quality standards. After two years from
the date of each tribe's initial grant
award, the maximum federal share will
be reduced to 90 percent, as long as die
Regional Administrator determines that
the tribe meets certain economic
indicators that would provide an
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7274
Federal Register/Vol. 63. No. 29/Thursday. February 12. 1998/Rules and Regulations
objective assessment of the tribe's
ability to increase its share. The
Regional Administrator may increase
the maximum federal share to 100
percent if the tribe can demonstrate in
writing to the satisfaction of the
Regional Administrator that fiscal
circumstances within the tribe are
constrained to such an extent mat
fulfilling the match would impose
undue hardship.
PART SO-NATIONAL PRIMARY AND
SECONDARY AMBIENT AR QUALITY
STANDARDS
10. The authority citation for part 50
is revised to read as follows:
A*harttjr: 42 U.S.6.7401. etseq.
11. Section 50.1 Is amended by
adding paragraph (I) to read as follows:
iso.1
0) Indian counarls as defined In 18
U.S.C. 1151.
12. Section 50.2 is amended by
revising paragraphs (c) and (d) to read
as follows:
(c) The promulgation of national
prirnary and secondary ambient air
quality standards shall not be
considered In any manner to allow
significant deterioration of existing air
quality in any portion of any state or
Indian country.
(d) The proposal, promulgation, or
revision of national primary and
secondary ambient air quality standards
shall not prohibit any state or Indian
tribe from establishing ambient air
quality standards for that state or area
under a tribal CAA program or any
portion thereof which are more stringent
than the national standards.
PART 81-OESWNATION OF AREAS
FOR AIR QUALITY PLANNMG
13. The authority citation for part 81
is revised to read as follows:
Aodncttr: 42 US.C 7401. etseq.
14. Section 81.1 is amended by
revising paragraph (a) and adding new
paragraphs (c). (d) and (e) to read as
follows:
§81.1
(a) Act means the dean Air Act as
amended (42 U.S.C. 7401. etseq.).
• • . • ' « *
(<$ Federal Indian Reservation. Indian
Reservation or Reservation means an
land within die limits of any Indian
reservation under the Jurisdiction of die
United States government.
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation.
(d) Indian tribe or tribe means any
Indian tribe, band, nation, or other
organized group or community.
including any Alaska Native village.
which is federally recognized as eligible
for the special programs and services
provided by die United States to Indians
because of dieir status as Indians.
(e) Stale meansa state, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands. Guam, and
Commonwealdi of die Northern Mariana
Islands.
SubpertC— SMttonlO? Attainment
Status Darigntflora
15. The authority citation f or Aibpart
C. part 81 is revised to read as follows:
AndMritjr: 42 US.C. 7401. et seq.
{81.300 [Amended]
16. Section 81^00(a) is amended by
revising die mini sentence to read "A
state, an Indian tribe determined eligible
for such functions under 40 CFR part
49. and EPA on initiate changes to
thps^ *^* *•*({' HitiCTB. but any proposed
state or tribal redesignation must be
submitted to EPA for concurrence. *
|FR Doc. 98-3451 Filed 2-1 1-98: 8:45 am]
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Executive Orders
CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS
THE WHITE HOUSE
Office of the Press Secretary
(Birmingham, England)
For Immediate Release Hay 14, 1998
EXECUTIVE ORDER
CONSDLTATIOH AND COORDINATION
WITH INDIAN TRIBAL GOVERNMENTS
The United States has a unique legal relationship with Indian
tribal governments as set forth in the Constitution of the Dnited
States, treaties, statutes. Executive orders, and court decisions.
Since the formation of Che Union, the United States has recognized
Indian tribes as domestic dependent nations under its protection. In
treaties, our Nation has guaranteed the right of Indian tribes to
self-government. As domestic dependent nations. Indian tribes exercise
inherent sovereign powers over their members and territory- The United
States continues to work with Indian tribes on a government-to -
government basis to address issues concerning Indian tribal
self-government, trust resources, and Indian tribal treaty and other
rights.
Therefore, by the authority vested in me as President by the
Constitution and the laws of the United States of America, and in order
to establish regular and meaningful consultation and collaboration with
Indian tribal governments in the development of regulatory practices on
Federal matters that significantly or uniquely affect their communities;
to reduce the imposition of unfunded mandates upon Indian tribal
governments; and to streamline the application process for and increase
the availability of waivers to Indian tribal governments; it is hereby
ordered as follows:
Section 1. Definirions. For purposes of chis order:
(a) "State" or "States" refer to the states of the United States of
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America, individually or collectively, and, where relevant, to State
governments, including units of local government and other political
subdivisions established by the States.
(b) "Indian tribe" means an Indian or Alaska Native tribe, band,
nation, pueblo, village, or conmunity that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(c) 'Agency* means any authority of the United States that is an
"agency" »nd»r 44 u.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
Sec. 2. Policymaking Criteria. In formulating policies
significantly or uniquely affecting Tndian tribal governments, agencies
shall be guided, to the extent permitted by lav, by principles of
respect for Indian tribal self-government and sovereignty, for tribal
treaty and other rights, and for responsibilities that arise from the
unique legal relationship between the Federal Government and Indian
tribal governments.
Sec. 3. Consultation. (a) Each agency shall have an effective
process to permit elected officials and other representatives of Indian
tribal governments to provide meaningful and timely input in the
development of regulatory policies on matters that significantly or
uniquely affect their communities.
(b) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that is not required by statute, that
significantly or uniquely affects thp communities of the Indian tribal
governments, and that imposes substantial direct compliance costs on
such communities, unless:
(1) funds necessary to pay the direct costs incurred by the
Indian tribal government in complying with the regulation are
provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the
regulation,
(A) in a separately identified portion of the preamble to
the regulation as it is to be issued in the Federal
Register, provides to the Director of the office of
Management and Budget a description of the extent of the
agency's prior consultation with representatives of
affected Indian tribal governments,a summary of the nature
of their concerns, and the agency's position supporting
the need to issue the regulation; and
(B) makes available to the Director of the Office of
Management and Budget any written communications submitted
to the agency by such TT»«ST ar« tribal governments.
Sec. 4. Increasing Flexibility f dfcr Indian Tribal Waivers -
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(a) Agencies shall review the processes under which
Indian tribal governments apply for waivers of statutory and regulatory
requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by
law, consider any application by an Indian tribal government for a
waiver of statutory or regulatory requirements in connection with any
program administered by that agency with a general view toward
increasing opportunities for utilizing flexible policy approaches at the
Indian tribal level in cases in which the proposed waiver is consistent
with the applicable Federal policy objectives and is otherwise
appropriate .
(c) Each agency shall, to the extent practicable and permitted by
law render a decision upon a complete application for a waiver within
120 'days of receipt of such application by the agency. The agency shall
provide the applicant with timely written notice of the decision and, if
the application for a waiver is not granted, the reasons for such
denial .
(d) This section applies only to statutory or regulatory
requirements that are discretionary and subject to waiver by the agency -
Sec S Cooperation, in developing regulations. On issues relating
to tribal self-government, crust resources, or treaty and other rights,
each agency should explore and. where appropriate, use consensual
mechanisms for developing regulations, including negotiated rulemaking.
Sec. 6. Independent agencies. Independent regulatory agencies are
encouraged to comply with the provisions of this order.
Sec 7 General provisions, (a) This order is intended only to
improve the internal management of the executive branch and is not
intended to, and does not. create any right, benefit, or trust
responsibility, substantive or procedural, enforceable at law or equity
tj a party against the United States, its agencies or instrumentalities,
its officers or employees, or any other person.
(b) This order shall supplement but not supersede the requirements
contaiSed^Executive Order^2 866 < •Regulatory "-"^ J^"^
Executive Order 12988 C Civil Justice Reform ), OMB Circular A i». ana
S^SStSS Memorandum of April 29, 1994. on Government -to-Government
Relations with Native American Tribal Governments.
(0 This order shall complement the consultation and waiver
provisions in sections 4 and 5 of the Executive order, entitled
•Federalism, " being issued on this day.
(d) This order shall be effective 90 days after the date of this
order.
WILLIAM J. CLINTON
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