UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG22
Date Signed: November 8, 1984
MEMORANDUM
SUBJECT: Indian Policy Implementation Guidance
FROM: Alvin L. Aim
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This document sets forth
the broad principles that will guide the Agency in its relations with American Indian Tribal
Governments and in the administration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized Tribal Governments
and the environment of a geographical area that is larger than the combined area of the States of
Maryland, New Jersey, Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is
an important sector of the country, and constitutes the remaining lands of America's first
stewards of the environment, the American Indian Tribes.
The Policy places a strong emphasis on incorporating Tribal Governments into the
operation and management of EPA's delegable programs. This concept is based on the President's
Federal Indian Policy published on January 24, 1983 and the analysis, recommendations and
Agency input to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1983).
TIMING AND SCOPE
Because of the importance of the reservation environments, we must begin immediately
to incorporate the principles of EPA's Indian Policy into the conduct of our everyday business.
Our established operating procedures (including long-range budgetary and operational planning
activities) have not consistently focused on the proper role of Tribal Governments or the special
legal and political problems of program management on Indian lands. As a result, it will require a
phased and sustained effort over time to fully implement the principles of the Policy and to take
the steps outlined in this Guidance.
1
-------
WSG22
Some Regions and Program Offices have already made individual starts along the lines of
the Policy and Guidance. I believe that a clear Agency-wide policy will enable all programs to
build on these efforts so that, within the limits of our legal and budgetary constraints, the Agency
as a whole can make respectable progress in the next year.
As we begin the first year of operations under the Indian Policy, we cannot expect to
solve all of the problems we will face in administering programs under the unique legal and
political circumstances presented by Indian reservations. We can, however, concentrate on
specific priority problems and issues and proceed to address these systematically and carefully in
the first year. With this general emphasis, I believe that we can make respectable progress and
establish good precedents for working effectively with Tribes. By working within a manageable
scope and pace, we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this Guidance in the conduct of our
everyday business, the first year's implementation effort will emphasize concentrated work on a
discrete number of representative problems through cooperative programs or pilot projects. In the
Regions, this effort should include the identification and initiation of work on priority Tribal
projects. At Headquarters, it should involve the resolution of the legal, policy and procedural
problems which hamper our ability to implement the kinds of projects identified by the Regions.
The Indian Work Group (IWG), which is chaired by the Director of the Office of Federal
Activities and composed of representatives of key regional and headquarters offices, will
facilitate and coordinate these efforts. The IWG will begin immediately to help identify the
specific projects which may be ripe for implementation and the problems needing resolution in
the first year.
Because we are starting in "mid-stream," the implementation effort will necessarily
require some contribution of personnel time and funds. While no one program will be affected in
a major fashion, almost all Agency programs are affected to some degree. I do not expect the
investment in projects on Indian Lands to cause any serious restriction in the States' funding
support or in their ability to function effectively. To preserve the flexibility of each Region and
each program, we have not set a target for allocation of FY 85 funds. I am confident, however,
that Regions and program offices can, through readjustment of existing resources, demonstrate
significant and credible progress in the implementation of EPA's Policy in the next year.
ACTION
Subject to these constraints, Regions and program managers should now initiate actions
to implement the principles of the Indian Policy. The eight categories set forth below will direct
our initial implementation activities. Further guidance will be provided by the Assistant
-------
WSG22
Administrator for External Affairs as experience indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL
SERVE AS LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN
POLICY MATTERS.
This responsibility will include coordinating the development of appropriate Agency
guidelines pertaining to Indian issues, the implementation of the Indian Policy and this Guidance.
In this effort the Assistant Administrator for External Affairs will rely upon the assistance and
support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE
ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND
RECOMMENDING DETAILED GUIDANCE AS NEEDED ON INDIAN POLICY AND
IMPLEMENTATION MATTERS. ASSISTANT ADMINISTRATORS, REGIONAL
ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD DESIGNATE
APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE
IWG'S RESPONSIBILITIES UNDER THE DIRECTION OF THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of Federal
Activities, will be an important entity for consolidating the experience and advice of the key
Assistant and Regional Administrators on Indian Policy matters. It will perform the following
functions: identify specific legal, policy, and procedural impediments to working directly with
Tribes on reservation problems; help develop appropriate guidance for overcoming such
impediments; recommend opportunities for implementation of appropriate programs or pilot
projects; and perform other services in support of Agency managers in implementing the Indian
Policy.
The initial task of the IWG will be to develop recommendations and suggest priorities for
specific opportunities for program implementation in the first year of operations under the Indian
Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant Administrator
must be actively represented on the IWG by a staff member authorized to speak for his or her
office. Further, the designated representative(s) should be afforded the time and resources,
including travel, needed to provide significant staff support to the work of the IWG.
3. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE
ACTIVE OUTREACH AND LIAISON WITH TRIBES, PROVIDING ADEQUATE
INFORMATION TO ALLOW THEM TO WORK WITH US IN AN INFORMED WAY.
3
-------
WSG22
In the first thirteen years of the Agency's existence, we have worked hard to establish
working relationships with State Governments, providing background information and sufficient
interpretation and explanations to enable them to work effectively with us in the development of
cooperative State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (preferably on the reservation) with Tribal
Government officials. This liaison is essential to understanding Tribal needs, perspectives and
priorities. It will also foster Tribal understanding of EPA's programs and procedures needed to
deal effectively with us.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE
RESOURCES TO MEET TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY
COMPETING PRIORITIES AND BY OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA or State
Governments, an appropriate block of funds must be set aside to support reservation abatement,
control and compliance activities.
Because we want to begin to implement the Indian Policy now, we cannot wait until FY
87 to formally budget for programs on Indian lands. Accordingly, for many programs, funds for
initial Indian projects in FY 85 and FY 86 will need to come from resources currently planned
for support to EPA- and State-managed programs meeting similar objectives. As I stated earlier,
we do not expect to resolve all problems and address all environmental needs on reservations
immediately. However, we can make a significant beginning without unduly restricting our
ability to fund ongoing programs.
I am asking each Assistant Administrator and Regional Administrator to take measures
within his or her discretion and authority to provide sufficient staff time and grant funds to allow
the Agency to initiate projects on Indian lands in FY 85 and FY 86 that will constitute a
respectable step towards implementation of the Indian Policy.
5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT
PROVIDED BY THE GENERAL COUNSEL, SHOULD ASSIST TRIBAL
GOVERNMENTS IN PROGRAM DEVELOPMENT AS THEY HAVE DONE FOR THE
STATES.
The Agency has provided extensive staff work and assistance to State Governments over
the years in the development of environmental programs and program management capabilities.
This assistance has become a routine aspect of Federal/State relations, enabling and expediting
the States' assumption of delegable programs under the various EPA statutes. This "front end"
investment has promoted cooperation and increased State involvement in the regulatory process.
As the Agency begins to deal with Tribal Governments as partners in reservation
4
-------
WSG22
environmental programming, we will find a similar need for EPA assistance. Many Regional and
program personnel have extensive experience in working with States on program design and
development; their expertise should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND
THE GENERAL COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO
PROVIDE INFORMED INPUT INTO EPA'S DECISION-MAKING AND PROGRAM
MANAGEMENT ACTIVITIES WHICH AFFECT RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions relating directly or
indirectly to reservation environments, full consideration and weight should be given to the
public policies, priorities and concerns of the affected Indian Tribes as expressed through their
Tribal Governments. Agency managers should make a special effort to inform Tribes of EPA
decisions and activities which can affect their reservations and solicit their input as we have done
with State Governments. Where necessary, this should include providing the necessary
information, explanation and/or briefings needed to foster the informed participation of Tribal
Governments in the Agency's standard-setting and policy-making activities.
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE
MAXIMUM FEASIBLE EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND
PREFERENCES INTO EPA'S POLICY DECISIONS AND PROGRAM MANAGEMENT
ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration to local interests
and concerns, within the limits allowed by our statutory mandate and nationally established
criteria and standards. Consistent with the Federal and Agency policy to recognize Tribal
Governments as the primary voice for expressing public policy on reservations, EPA managers
should, within the limits of their flexibility, seek and utilize Tribal input and preferences in those
situations where we have traditionally utilized State or local input.
We recognize that conflicts in policy, priority or preference may arise between States and
Tribes as it does between neighboring States. As in the case of conflicts between neighboring
States, EPA will encourage early communication and cooperation between Tribal and State
Governments to avoid and resolve such issues. This is not intended to lend Federal support to
any one party in its dealings with the other. Rather, it recognizes that in the field of
environmental regulation, problems are often shared and the principle of comity between equals
often serves the interests of both.
Several of the environmental statutes include a conflict resolution mechanism which
enables EPA to use its good offices to balance and resolve the conflict. These procedures can be
applied to conflicts between Tribal and State Governments that cannot otherwise be resolved.
EPA can play a moderating role by following the conflict resolution principles set by the statute,
5
-------
WSG22
the Federal trust responsibility and the EPA Indian Policy.
8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND
THE GENERAL COUNSEL SHOULD WORK COOPERATIVELY WITH TRIBAL
GOVERNMENTS TO ACHIEVE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT WITH THE
PRINCIPLE OF INDIAN SELF-GOVERNMENT.
The EPA Indian Policy recognizes Tribal Governments as the key governments having
responsibility for matters affecting the health and welfare of the Tribe. Accordingly, where
tribally owned or managed facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to achieve compliance. Where
reservation facilities are clearly owned or managed by private parties and there is no substantial
Tribal interest or control involved, the Agency will endeavor to act in cooperation with the
affected Tribal Government, but will otherwise respond to noncompliance by private parties on
Indian reservations as we do to noncompliance by the private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with Federal statutes and
regulations include providing consultation and technical support to Tribal leaders and managers
concerning the impacts of noncompliance on Tribal health and the reservation environment and
steps needed to achieve such compliance. As appropriate, EPA may also develop compliance
agreements with Tribal Governments and work cooperatively with other Federal agencies to
assist Tribes in meeting Federal standards.
Because of the unique legal and political status of Indian Tribes in the Federal System,
direct EPA actions against Tribal facilities through the judicial or administrative process will be
considered where the Agency determines, in its judgment, that: (1) a significant threat to human
health or the environment exists, (2) such action would reasonably be expected to achieve
effective results in a timely manner, and (3) the Federal Government cannot utilize other
alternatives to correct the problem in a timely fashion. Regional Administrators proposing to
initiate such action should first obtain concurrence from the Assistant Administrator for
Enforcement and Compliance Monitoring, who will act in consultation with the Assistant
Administrator for External Affairs and the General Counsel. In emergency situations, the
Regional Administrator may issue emergency Temporary Restraining Orders, provided that the
appropriate procedures set forth in Agency delegations for such actions are followed.
9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND
THE GENERAL COUNSEL SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS
INTO THEIR LONG-RANGE PLANNING AND PROGRAM MANAGEMENT
ACTIVITIES, INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT
ACCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
-------
WSG22
In order to carry out the principles of the EPA Indian Policy and work effectively with
Tribal Governments on a long-range basis, it will be necessary to institutionalize the Agency's
policy goals in the management systems that regulate Agency behavior. Where we have
systematically incorporated State needs, concerns and cooperative roles into our budget,
Operating Guidance, management accountability systems and performance standards, we must
now begin to factor the Agency's Indian Policy goals into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes when
conducting routine planning and management activities or carrying out special policy analysis
activities. In addition, the IWG, operating under the direction of the Assistant Administrator for
External Affairs and with assistance from the Assistant Administrator for Policy, Planning and
Evaluation, will identify and recommend specific steps to be taken to ensure that Indian Policy
goals are effectively incorporated and institutionalized in the Agency's procedures and
operations.
Attachment
-------
WSG22
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON
INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983, supporting the
primary role of Tribal Governments in matters affecting American Indian reservations. That
policy stressed two related themes: (1) that the Federal Government will pursue the principle of
Indian "self-government" and (2) that it will work directly with Tribal Governments on a
"government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued general statements of
policy which recognize the importance of Tribal Governments in regulatory activities that impact
reservation environments. It is the purpose of this statement to consolidate and expand on
existing EPA Indian Policy statements in a manner consistent with the overall Federal position in
support of Tribal "selfgovernment" and "government-to-government" relations between Federal
and Tribal Governments. This statement sets forth the principles that will guide the Agency in
dealing with Tribal Governments and in responding to the problems of environmental
management on American Indian reservations in order to protect human health and the
environment. The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As such, it applies to EPA
only and does not articulate policy for other Agencies in the conduct of their respective
responsibilities.
It is important to emphasize that the implementation of regulatory programs which will
realize these principles on Indian Reservations cannot be accomplished immediately. Effective
implementation will take careful and conscientious work by EPA, the Tribes and many others. In
many cases, it will require changes in applicable statutory authorities and regulations. It will be
necessary to proceed in a carefully phased way, to learn from successes and failures, and to gain
experience. Nonetheless, by beginning work on the priority problems that exist now and
continuing in the direction established under these principles, over time we can significantly
enhance environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the fundamental objective of
the Environmental Protection Agency is to protect human health and the environment. The
keynote of this effort will be to give special consideration to Tribal interest in making Agency
policy, and to insure the close involvement of Tribal Governments in making decisions and
managing environmental programs affecting reservation lands. To meet this objective, the
Agency will pursue the following principles:
8
-------
WSG22
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
GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities with primary authority and
responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal
Governments as the independent authority for reservation affairs, and not as political
subdivisions of States or other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY
PARTIES FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY
DECISIONS AND MANAGING PROGRAMS FOR RESERVATIONS, CONSISTENT WITH
AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the agency will view Tribal
Governments as the appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their environments, and the health and
welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally
involved the interests and/or participation of State Governments, EPA will look directly to Tribal
Governments to play this lead role for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT
RESPONSIBILITIES FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing programs and in
preparing to assume regulatory and program management responsibilities for reservation lands.
Within the constraints of EPA's authority and resources, this aid will include providing grants
and other assistance to Tribes similar to that we provide State Governments. The Agency will
encourage Tribes to assume delegable responsibilities, (i.e. responsibilities which the Agency has
traditionally delegated to State Governments for non-reservation lands) under terms similar to
those governing delegations to States.
Until Tribal Governments are willing and able to assume full 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). Where EPA retains such responsibility, the Agency will encourage the
Tribe to participate in policy-making and to assume appropriate lesser or partial roles in the
management of reservation programs.
4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING
9
-------
WSG22
LEGAL AND PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND
EFFECTIVELY WITH TRIBAL GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties in the language of our statutes and
regulations have limited our ability to work directly and effectively with Tribal Governments on
reservation problems. As impediments in our procedures, regulations or statutes are identified
which limit our ability to work effectively with Tribes consistent with this Policy, we will seek to
remove those impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY,
WILL ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED
WHENEVER EPA'S ACTIONS AND/OR DECISIONS MAY AFFECT
RESERVATION ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the historical relationship between
the Federal Government and Indian Tribes as expressed in certain treaties and Federal Indian
Law. In keeping with that trust responsibility, the Agency will endeavor to protect the
environmental interests of Indian Tribes when carrying out its responsibilities that may affect the
reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE
AND LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF
MUTUAL CONCERN.
Sound environmental planning and management require the cooperation and mutual
consideration of neighboring governments, whether those governments be neighboring States,
Tribes, or local units of government. Accordingly, EPA will encourage early communication and
cooperation among Tribes, States and local governments. This is not intended to lend Federal
support to any one party to the jeopardy of the interests of the other. Rather, it recognizes that in
the field of environmental regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE
RELATED RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR
INTEREST AND SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME
ENVIRONMENTAL PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to protect human
health and the environment on reservations. We will work with other agencies to clearly identify
and delineate the roles, responsibilities and relationships of our respective organizations and to
assist Tribes in developing and managing environmental programs for reservation lands.
10
-------
WSG22
8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN
RESERVATIONS.
In those cases where facilities owned or managed by Tribal Governments are not in
compliance with Federal environmental statutes, EPA will work cooperatively with Tribal
leadership to develop means to achieve compliance, providing technical support and consultation
as necessary to enable Tribal facilities to comply. Because of the distinct status of Indian Tribes
and the complex legal issues involved, direct EPA action through the judicial or administrative
process will be considered where the Agency determines, in its judgement, that: (1) a significant
threat to human health or the environment exists, (2) such action would reasonably be expected
to achieve effective results in a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem in a timely fashion.
In those cases where reservation facilities are clearly owned or managed by private parties
and there is no substantial Tribal interest or control involved, the Agency will endeavor to act in
cooperation with the affected Tribal Government, but will otherwise respond to noncompliance
by private parties on Indian reservations as the Agency would to noncompliance by the private
sector elsewhere in the country. Where the Tribe has a substantial proprietary interest in, or
control over, the privately owned or managed facility, EPA will respond as described in the first
paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS
PLANNING AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET,
OPERATING GUIDANCE, LEGISLATIVE INITIATIVES, MANAGEMENT
ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND REGULATION
DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles of this Policy are
effectively institutionalized by incorporating them into the Agency's ongoing and long-term
planning and management processes. Agency managers will include specific programmatic
actions designed to resolve problems on Indian reservations in the Agency's existing fiscal year
and long-term planning and management processes.
William D. Ruckelshaus
11
------- |