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.

            A. Native Hawai'ians	2
            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
            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	10
            H.    Worship  	11
            I.     Discrimination	12
            A.    Native Americans as Tribal Members  	13
            B.    Reservations	13
                  1.     The Special Circumstances of Alaska and Oklahoma	15
            C.     Governments	17
                  1.     Unique Aspects of Tribal Governance	18
                  2.     Intergovernmental Relations  	19

      I.     INTRODUCTION	24
            A.    What Is Federal Indian Law?	24
            B.    Definition of Tribe, Indian  and Indian Country  	24
            A.    Pre-contact  	27
            B.    European Colonization	27

             C.     Foundation of Federal Indian Law and Policy (1789-1871)  	28
                   1.     The Marshall Trilogy: The Bedrock of Federal Indian Law  .... 28
                   2.     Removal 	31
                   3.     Treaties	31
             D.     Attempted Assimilation (1871-1928)  	32
                   1.     Allotment 	32
                   2.     Case Law at the Turn of the Century	33
             E.     Reorganization (1928-1942)  	33
             F.     Termination (1943-1968)	34
                   1.     Public Law 83-280   	34
             G.     Self-determination (1968-present)  	35
             A.     The Source and Scope of Tribal Powers	37
                   1.     Limitations  	38
                   2.     Tribal Powers  	39
             B.     Tribal Jurisdiction	40
                   1.     Criminal Jurisdiction 	40
                   2.     Civil Jurisdiction	41
                   3.     Indian Country Jurisdiction 	41
                   4.     Other Jurisdiction 	43
             A.     Federal Powers	45
             B.     Federal Trust Responsibility 	46
             A.     Treaties	47
                   1.     Canons of Treaty  Construction  	47
                   2.     Continued Validity and Significance of Treaties	48
             B.     Land Rights  	49
             C.     Fishing, Hunting, and Gathering Rights	49
             D.     Water Quantity Rights 	50

      I.      INTRODUCTION	51
             A.     The Importance of the Indian Program  	51
             B.     Objectives of the Indian Program  	52
             C.     How To Accomplish Objectives  	52
             A.     Executive Order on Consultation and Coordination with Indian Tribal
                   Governments  	53
             B.     Presidential Memorandum on Government-to-Government Relations With
                   Native American Tribal Governments	54
             C.     EPA Indian Policy	54
             D.     Other Policies and Guidance	55
                   1.     Executive Order and Memorandum on Environmental Justice  ..55

             2.     Executive Order on Sacred Sites	56
             3.     Federal, Tribal, and State Roles in the Protection and Regulation of
                   Reservation Environments (Concept Paper)	56
             4.     Tribal Operations Action Memorandum	56
             5.     EPA Environmental Justice Strategy  	57
             6.     EPA Regional Policies for Environmental Protection in Indian
                   Country	57
             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 	57
             8.     Enforcement	58
             9.     Protocol for EPA Interactions With Tribes  	58
      A.     Building Capability	60
             1.     Financial Assistance	60
             2.     Technical Assistance	61
             3.     Information	62
      B.     Tribal Assumption of Federal Environmental Programs	63
             1.     Congressional Authorization for Approval of Tribal Programs
                   Under	64
             2.     Tribal-Specific Eligibility Criteria	65
             3.     Tribal Jurisdiction	66
      C.     Direct Federal Implementation  	68
      D.     Cooperative Approaches To Implementation	69
      A.     The American Indian Environmental Office	71
      B.     Regional Programs and Operations	71
      C.     Tribal Operations Committee 	72
      D.     Agency Senior Indian Program Managers	72
      E.     National Indian Work Group	72
      F.     National Indian Law Work Group	72
      G.     American Indian Advisory Council 	73
      H.     National Environmental Justice Advisory Council Indigenous Peoples
             Subcommittee	73
      I.     Other EPA Advisory Councils With Tribal Representation  	73
      AND AGENCIES  	73
      A.     White House Domestic Policy Council  	73
      B.     White House Council on Environmental Quality 	74
      C.     Department of the Interior  	74
      D.     Department of Justice	74
      E.     Department of Health and Human Services	75
      F.     Department of Defense	75
      G.     Department of Agriculture  	75




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 government-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).

       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).

Resource Guide	Page 2


"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" also is used
expansively to 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

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.
        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.

Resource Guide	Page 3


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. 10
   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  Mat 2.

Resource Guide	Page 5

        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  1990 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
    11   Kingsley, supra, note 8, 28-32.
        Id. at xiv-xvi.

Resource Guide	Page 6

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. These 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  Mat 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

Resource Guide	Page 7


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 previous
   16  Arlene Hirschfelder, editor, Native Heritage, Personal Accounts by American Indians 1790 to the Present,
xix-xxii (1995).

       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.

Resource Guide	Page g

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. 19

"With us the family was everything." Tom Johnson, an elder from the Porno 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
born 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 17, at 23, 445-49.

   19  Ed Edmo (Sho shone-Bannock), "Finding the Best of Two Worlds; Teaching Children about Prejudices,"
Lakota Times (December 26, 1989).

       Hirschfelder, supra note 16, at 3.

Resource Guide	Page 9

        The tribes developed 'gravel-to-gravel' management principles from this traditional
        wisdom. 'Gravel-to-graver 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

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-sam-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 Perce, Umatilla, 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).

Resource Guide	Page 10

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.

       Okakok, Leona (Inupiat), "Serving the Purpose of Education." Harvard Educational Review, 59, no. 4,
405-422 (November 1989).

Resource Guide	Page 11

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
       Hirschfelder, supra note 16, at 91.

   27  Janet Campbell Hall (Couer d'Alene), Bloodlines: Odyssey of a Native Daughter (1993).

       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
   29  Carl Sweezy (Arapaho, born around 1881), The Arapaho Way: A Memoir of an Indian Boyhood, (ed.
Althea Bass), (1966).

       Hirschfelder, supra note 16, at 161.

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               passed when basketry was marveled at for its utility and perfected 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
   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, part 1, 91st Cong., 1st Sess.

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        establishment. These manufactured images are used to sell everything from butter 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


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.36 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

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 participation
        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

   37   Reed, supra note 7, at 47.

   38   Reed, supra note 7, at 3.
        Also, AILTP, supra note 5, at 34.

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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 17th 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 17th 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

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, (1996).

        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 learn 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 working 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.
   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 (the"Five 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

       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

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 "government-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 at 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 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).

   56  Commission on State-Tribal Relations, American Indian Law Center, Inc., Handbook on State-Tribal
Relations, 30 (1984).

   57  Mat 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 from which to choose.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 overtime.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 modern
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 modern
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
   58  Mat 33.
   59  Id at 34
   60  Mat 35.

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another government. Just as easily, there can be agreements that fail to protect essential 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.

It is very important and required by the EPA Indian Policy that EPA work with tribes on a government-to-
government 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
important 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/indian.

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
   61   Id. at 37.

Resource Guide	Page 22

Inter-Tribal Environmental Council of Oklahoma: Inter-Tribal Environmental Council of Oklahoma
(ITEC) 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-

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.

Resource Guide	Page 23

Columbia River Inter-Tribal Fish Commission: The Columbia River Intertribal Fish Commission
(CRITFC) was created in 1977 to coordinate the management and protection of the tribes' treaty fishery
resource and to implement the tribes' fishery policies and objectives in the Columbia Basin.  The governing
body of CRITFC, the Commission, consists of the Fish and Wildlife Committees of 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://www.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 of fish, 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 (IEN) 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-

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 Inter-Tribal 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.northernway.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/index.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.northernway.net/~qitfap or call
(906) 632-0043.

Council of Energy Resource Tribes (CERT):  CERT 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.

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.intertribalbison.org or call
(605) 394-9730.

Native American Fish & Wildlife Society: The Native American Fish & Wildlife Society exists for the
protection, preservation, and enhancement offish & 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.

Resource Guide	Page 25



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 narrowly
   62   Including federally-recognized Alaska Native entities.
   63   Morton v. Mancari, 417 U.S. 535, 552 (1974).

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tailored to further that interest."64 The Supreme Court has very rarely found such a compelling

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 560
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

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
    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    180 U.S. 261,266.

    67   E.g., 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 "[t]he 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.

    68   25 C.F.R. §83.7(1997).

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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

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


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.
   69   18U.S.C. § 1151.

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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

In order to maintain peace with the Indian tribes and discourage their alliance with France, King George III
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 government-to-government pattern set prior to
the Revolution,  however.  The 1778 Treaty with the Delawares, the first between the United States and 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.
   70  Felix Cohen, Handbook of Federal Indian Law 50 (1982 ed.).

   71  Treaty with the Delawares, Sept. 17, 1778, 7 Stat. 13.

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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 who had
bought lands directly from a tribe could have received only the Indian title of occupancy that the treaty later

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:
       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.
   78  Id at 592.

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        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

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

        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 state.81
The Court dismissed the case  in 1831, ruling that it lacked jurisdiction to hear the case because "an Indian
   79   Mat 591.

   80   Worcesterv. Georgia, 31 U.S. (6 Pet.) 515, 542 (1832).

   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 states. 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).

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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*6 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 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
   82   Cherokee Nation, 30 U.S. at 20.
   83  Id. at 16.
   84  Id. at 17.
   85  Id. at 16
   86   31 U.S. (6 Pet.) 515 (1832).
   87  Mat 560-61.
       Id. at 561.

   90  Id.

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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.91  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.

        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
   91  Id. at 559.
        Cohen, supra note 70 at 63.

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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.

       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 farming 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
   93  25U.S.C. §71.

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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

        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, McBmtney 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 parte 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 1896, 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 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
        Charles Wilkinson, American Indians Time and the Law 19 (1987).

   95   Id. at 19, fn. 65.

   96   A private, two-year study of BIA requested by the Secretary of the Interior. Cohen, supra note 70, at 144

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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.

        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—
   97   Cohen, supra note 70, at 170.

   98   Id. at 171.

   99   67 Stat. 588 (1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. §§

   100   18 U.S.C. § 1162(a).

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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

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, 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 interests in
trust property.109

G.    Self-determination (1968-present)
   101   Pub. L. No. 83-280 § 7, 67 Stat. 588, 590 (1953).

   102   William Canby, American Indian Law 180 (2d ed. 1988).

   103   Bryan v. Itasca County, 426 U.S. 373 (1976).

   104   Mat 388.

   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).

   107   Id.

   108   Canby, supra note 102, at 180.

   109   28 U.S.C.  § 1360(b).

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The self-determination era began with an act of Congress opposed by the majority of tribes, the Indian
Civil Rights Act of 1968 (ICRA).110  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.111  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).m

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.114 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.

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."115  The substance of the ISDA then directs BIA and the Indian Health Service (IHS) to contract
out to tribes most of the services administered by these agencies.  The Act also authorized grants to help
strengthen tribal management of Indian community services.  Of great importance is  the Act's explicit
   110  Pub. L. No. 90-284, 82 Stat. 77 (codified as amended at 25 U.S.C. §§ 1301-03, 1321-22).

   111  25 U.S.C. § 1302.

   112  Id. § 1303.

   113  Id. § 1302(7).

   114  Id. §§ 1321(a) & 1322(a).

   115  25 U.S.C. §450.

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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

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:  ISTEA117 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.


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
   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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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.118  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 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
   118   21 U.S. (8 Wheat.) 543 (1823).
   119   31 U.S. (6 Pet.) 515, 559(1832).
   120   435 U.S. 191.
   121   450 U.S. 544.
   122  Id. at 564-65.
   123   United States v. Wheeler, 435 U.S. 313, 323 (1978).

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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.124 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
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.126

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, land use regulation, power to raise revenues for the operation of the government, and power
to administer justice through law enforcement and judicial systems.
   124  Merrion v. Jicarilla 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).

   125   ICRA prevents tribes
religion. 25 U.S.C. § 1302(1).


125  ICRA prevents tribes from abridging the free exercise of religion, but does not bar the establishment of
126  American Indian Lawyer Training Program, Sourcebook on Federal-Tribal History, Law, and Policy 38

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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.

       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
   127   Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

   128   Id.

        Cohen, supra note 70, at 666-68.

   130   25 U.S.C. § 1302(7).

   131   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).

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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.

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        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-l Contractors.135 The Supreme Court
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,
    132  358 U.S. 217.
    133  450 U.S. 544(1981).
    134  Mat 565.
    135  117 S.Ct. 1404(1997).
    136  Id.
    137  DeCoteau v. District County Court, 420 U.S. 425, 427 fn.2 (1975); Ahboahv. Housing Auth. of the
Kiowa Tribe, 660 P.2d 625 (Okla. 1983).

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        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 "reservation" category of
Indian country includes tribal trust lands even if such lands have not been formally declared a

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-
   138   18U.S.C. § 1151.

   139   Solemv. Bartlett, 465 U.S. 463 (1984).

   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   231 U.S. 28(1913).

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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.145 In 1934, the IRA
allowed the Secretary of the Interior to extend indefinitely the length of the trust period for allotments.146

        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 part 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
   143   Venetie, 118 S. Ct. 948, 1998 U.S. Lexis 1449, *23 (quoting ANCSA, 43 U.S.C. §1601 (b)).

   144   118S. Ct. 948.

   145   Cohen, supra note 70, at 131-34.

   146   Id. at 148.

   147   Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974).

   148   Solemv. Bartlett, 465 U.S. 463 (1984).

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Natives.  The Act did not terminate the tribal governments, the federal relationship or the federal trust

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
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
   149   118 S. Ct. 948, 1998 U.S. LEXIS 1449 (1998).

   150   Id.

   151   Id.

   152   Cohen, supra note 70, at 763-764.

   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   Mat 373.

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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.156 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.


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,
   156  Ahboah v. Housing Auth. of the Kiowa Tribe, 660 P.2d 625 (Okla. 1983).

   157  E.g., United States v. Kagama, 118 U.S. 375 (1886); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

   158  417 U.S. 535(1974).

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Lone Wolfv. Hitchcock}59 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.  Nonetheless,
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

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
    159  448 U.S. 371,413-14(1980).

        Archibald Cox, Memo, reprinted in Getches, et al., Federal Indian Law (1994).

    161  Nance v. EPA, 645 F.2d 701, 711 (9th Cir), cert, denied, Crow Tribe v. EPA, 454 U.S. 1081 (1981).

        Presidential Memorandum on Government-to-Government Relations with Native American Tribal
Governments 2 (April 29, 1994).

    163  Seminole Nation v. United States, 316 U.S. 286, 296 (1942).

        Department of Justice Policy on Indian Sovereignty and Government-to-Government Relations with
      Tribes 4 (June 1, 1995) (quoting 25 U.S.C. § 3601).


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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.


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

A.    Treaties

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
   165   United States v. Mitchell, 463 U.S. 206, 224 (1983).

   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   Worcesterv. Georgia, 31 U.S. (6 Pet.) 515, 559-60 (1832).

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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.168 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.

        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
   168  E.g., Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943).

   169  United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).

   170  443 U.S. 658, 675.

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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.

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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 a 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.

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

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.
   171   See generally William Canby, American Indian Law 256 (2d. ed. 1988).

   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), aff'd, 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).

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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 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
   177  Antoine v. Washington, 420 U.S. 194, 207 (1975).

   178  207 U.S. 564(1908).

   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

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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 led 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.182

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 government-to-government 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 560 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
   1 89
       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:

       •D     achieve adequate environmental infrastructure throughout Indian country;
       •D     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;
       •D     implement fully the 1984 EPA Indian policy;
       •D     increase significantly the number of tribes implementing environmental programs;
       •D     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
       •D     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:

       •D     increased tribal capacity-building efforts;
       •D     greater implementation of environmental programs within Indian country;
       •D     expanded education for EPA employees regarding tribal environmental issues;
       •D     increased technical  assistance and training for tribal environmental program managers;
       •D     continued intra-agency, multimedia coordination of Indian program activities by the
              American Indian Environmental Office and others;
       •D     improved coordination with tribes to achieve environmental goals and priorities identified
              by tribal governments in tribal and EPA environmental agreements; and
       •D     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
   185  Mat 86.
   186  Id.

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this chapter.  Program policies, implementation methods, and the organizational infrastructure developed 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.


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.

       •D     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.

       •D     There shall be effective processes to permit tribal governments to provide meaningful and
              timely input in the development of regulatory policies affecting tribal communities.

       •D     Agencies should prevent the promulgation of regulations that impose  substantial direct
              compliance costs on tribal governments, unless certain exceptions apply.

       •D     Where possible, agencies should streamline waiver processes of statutory or regulatory
              requirements with a view toward increasing opportunities for tribal governments.

       •D     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

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 government-to-government relationship with federally-recognized Indian

       •      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

       •      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

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 (the "government-to-government" relationship), rather than as subdivisions of other

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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

       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 EnvironmentalJustice 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 Order states

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that "each Federal agency responsibility set forth under this order shall apply equally to Native American
programs."  The Order also specifically addresses subsistence consumption offish 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-government partnership with tribes.  In
July 1994, Administrator Browner issued a memorandum outlining steps for prompt implementation
throughout the Agency. The action items are as follows:

Resource Guide	Page 62

       •D      establish Tribal-EPA Environmental Agreements (TEAs);
       •D      establish program and regional work plans based on TEAs;
       •D      implement management and compliance activities;
       •D      review program and regional Indian program organization and—where necessary—
               modify the organization to strengthen tribal operations;
       •D      ensure that an effective EPA-tribal liaison capacity exists to provide direct field assistance
               to tribes;
       •D      provide training to EPA management and staff on how to work effectively with tribal
       •D      enhance communications with tribes;
       •D      use available discretion to consolidate issuance and administrative requirements of grants;
       •D      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.

       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

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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

        8.      Enforcement

The EPA has a long-standing Indian policy that its relationship with tribal governments shall be
government-to-government. 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

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

EPA staff who work with tribes on a regular basis have offered the following reflections on their
experiences interacting with tribes:

       •D      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 do not 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

       •       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.


EPA works on a government-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.

        •D      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

        •D      Tribes may apply for approval to implement many of the federal environmental programs.

        •D      Consistent with federal law, tribal governments generally have regulatory authority over
               environmental quality within their own territory.

        •D      Generally, in the absence of an EPA-approved tribal program in Indian country, EPA will
               directly implement federal environmental statutes.

        •D      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
order for tribes to receive certain grants, tribes must include information with their grant application

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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 multi-program 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, work plans, 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, AIEO 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 multi-year plans for tribal assumption of environmental programs and EPA direct
implementation of environmental programs in Indian country. The Administrator's July 1994 Action Plan
for the EPA Indian Program makes TEAs the cornerstone on which Regions and National Program
Managers are to build their Indian programs.  TEAs and other similar agreements may take on added
importance when used in the context of 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.

       •D      As these agreements are developed, all principles included in EPA's Indian policy shall
               apply.  This includes recognition of a trust responsibility, government-to-government
               relationship, and tribal sovereignty.

       •D      The government-to-government relationship  shall be  directly between the Agency and a
               specific tribe.

       •D      The Agreement shall be  implemented to promote stability in funding, employment,
               capacity building, infrastructure development, and other such factors that lead to long-term
               program implementation for the tribes.

       •D      These agreements are being developed with the understanding that the long-term goal is to
               address, implement, and maintain—where deemed necessary by the Tribe—the full range
               of EPA's programs to protect public health and the environment.

       •D      While implementing the agreement, the Agency is committed to ongoing, timely, and open
               communications with the Tribe.  All 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.

       •D      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.

       •D      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, AIEO 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.  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:

        •D     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; and

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       •D      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 Rodenticide 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:

       •D      Federal Insecticide, Fungicide, and Rodenticide Act (1978).
       •D      Safe Drinking Water Act (1986);
       •D      Comprehensive Environmental Recovery, Compensation, and Liability Act (1986);

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       •D      Clean Water Act (1987);
       •D      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:

       •D      Toxic Substances Control Act; and
       •D      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 B.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

       •D      the tribe must be  federally-recognized;
       •D      the tribe must have or be able to exercise substantial governmental powers;
   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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        •D      the tribe must have or have been delegated jurisdiction over the area in question; and
        •D      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.)

        3.      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

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 effect on the
   189   59 Fed. Reg. 33469 (1994).

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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 lands.192

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 title 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 Circuit
Court of Appeals affirmed the decision on March 3, 1998.194  On May 2, 1998 the State of Montana filed a
petition for review by the Supreme Court.
    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).
        Montana v. EPA. 13 F. 3d 1135 (9th Cir. 1998).

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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.195 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

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, assistance and maintenance costs and availability of technical expertise,
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:

        •D     communications with tribes;
    195  419 U.S. 544(1975).

    196  Id.

    197  Indian Tribes: Air Quality Planning and Management; Final Rule, 63FR7254 (1998).

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       •D     establishment of Tribal-EPA Environmental Agreements (TEAs) that identify tribal
              priorities and help with budget development;
       •D     development of Regional and National Environmental Work plans based on TEAs;
       •D     development of Regional strategies so that direct implementation is consistent with tribal
              priorities; and
       •D     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 as a state 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;

       •      tribes 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

       •      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

A fact sheet on this final rule is included in the Appendix.

D.     Cooperative Approaches To Implementation

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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

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:

       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 (AIEO) 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
    198  Grover, Stetson and Williams. National Indian Policy Center, Washington, D.C., September 1994.

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               Counsel and was signed by the Regional Administrator on March 14, 1996. Part VII 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.

Resource Guide	Page 77


A.    The American Indian  Environmental Office

The American Indian Environmental Office, working with its regional components, is responsible for
coordinating the Agency-wide effort to strengthen public health and environmental protection in Indian
country. AIEO oversees development and implementation of the Agency's Indian policy . 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-government 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 General  Assistance Program Act;

       •      negotiating tribal-EPA Environmental Agreements that identify tribal priorities for
              building environmental  programs and also for direct, EPA program implementation

       •      developing tools to help tribal environmental managers make decisions on environmental

       •      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.
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

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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 government-to-
government 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 (NIWG) was initially defined in the 1984 Indian Policy
Implementation Guidance. The NIWG 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. NIWG was established to facilitate and coordinate efforts to identify and 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. NIWG 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

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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 Councils 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.


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

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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.

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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

C.    Department of the Interior

The Department of the Interior (DOI) 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 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 better
promote issues of Federal Indian law.

In June 1995, the Attorney General issued the DOJ policy on Indian sovereignty and government-to-
government relations with Indian tribes. The purpose of this policy is:

              To reaffirm the Department's recognition of the sovereign status of federally
              recognized Indian Tribes as domestic dependent nations and to reaffirm adherence
              to the principles of government-to-government relations; to inform Department

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              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 (IHS) 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 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
   199  25 U.S.C. § 3901-3908.

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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.).

                 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)

"Federal, 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 Environmental 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, AIEO
(March 20,  1995)

"Indian Tribes: Air Quality Planning and Management; Final Rule" Federal Register

Executive Order 13084 "Consultation and Coordination with Indian Tribal Governments"
(May 14, 1998)