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Indian Tribes and Environmental Law: The Role of the Third Sovereign

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Indian Tribes and Environmental Law: The Role of the Third Sovereign

There are 574 federally recognized Indian Tribes in the United States, and approximately 300 reservations covering nearly 55 million acres. Under the Environmental Protection Agency’s 1984 Policy for the Administration of Environmental Programs on Indian Reservations, EPA recognizes Tribal Governments as sovereign entities with primary authority and responsibility for the reservation populace, and 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. This course will explain the unique role of Indian Tribes in environmental law: in resource use, protection, and regulation under federal statutes, treaties, and Tribal law both on and off the reservation

Presenters

Connie Sue Martin
Partner, Industry Group Leader
Schwabe, Williamson & Wyatt PC

Transcript

- [Connie] Indian Tribes and Environmental Law: The Role of the Third Sovereign. My name is Connie Sue Martin. I am an environmental and Indian law attorney at Schwabe, Williamson & Wyatt in Seattle, Washington, where I lead my firm's Indian country and Alaska-native corporations industry group. I'm happy to bring this presentation to you because I think that Indian tribes are emerging as an ever larger player in the environmental law field. You only need to look at the headlines about tribes opposed to projects or tribes advancing other projects to understand the importance of tribes in environmental law, and their role, certainly, as the third sovereign. And of course that means we're talking about the federal government, the state government, and the tribal government as the three sovereigns. Our learning objectives for this CLE are first to understand the nature of Indian tribes as separate sovereign governments, two, to describe the various roles that tribes play in environmental law and the sources of tribal authority, three, to identify circumstances under which a tribe may impact the permitting or the operation of a non-tribal entity outside of a tribe's reservation, four, to begin to identify circumstances under which a tribe may regulate non-tribal entities on a tribe's reservation, and five, to gain insights into developing topics in environmental Indian law. Let's start with definitions. Title 25 and a chapter of title 18 of the United States Code provides us with important background definitions for Indian tribes, Indians, and Indian country, which are terms that are important to understanding of Indian environmental law. An Indian tribe is defined as any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds land in trust. An Indian is any person who is a member of any Indian tribe who is eligible to become a member of any Indian tribe, or is an owner, as of 2004, of a piece of land that is held in trust or with restricted interest. An Indian is also any person meeting the definition of Indian under the Indian Reorganization Act and the regulations for the IRA. And finally, there's a special provision for land in the state of California where any person who owns a trust or restricted interest in a parcel of land in the state of California is identified as an Indian under the statute. It's important though to remember that only an Indian tribe can determine who its members are and what a person must do to qualify for membership or enrollment in an Indian tribe. Indian country, which is important when we're talking about where a tribe has regulatory authority for tribal environmental statutes, is identified as all land within the limits of any Indian reservation under the jurisdiction of the United States Government, regardless of how that land is held, or whether it's a right of way, or a pipeline, or a piece of fee land owned by a non-member. Also, all dependent Indian communities in the United States, those are areas that are lands held in trust or with restricted title for the benefit of Indian tribes or their members that are not considered a reservation, and all Indian allotments, the Indian titles to which have not been extinguished. Indian allotments are parcels of land that are owned by the federal government and held in trust for the benefit of an individual Indian member. Finally, lands held by the federal government in trust for Indian tribes that exist outside of formal reservations are considered informal reservations, and thus are deemed to be Indian country. It's important to understand that Indian country also includes land within the exterior boundaries of an Indian reservation regardless of who owns it. So it could be land held in trust by the United States Government for an Indian tribe, land that is owned outright by a tribe, so the tribe is the fee landowner, just like any private property owner. It also includes land that is privately-owned by a non-member of the tribe, or rights of way for state highways, or federal highways, or railroads, power lines, and pipelines that run through a reservation. So in determining regulatory jurisdiction within the boundaries of an Indian reservation, it doesn't matter, for purposes of the first step of the analysis, who actually owns the land. It's just, is it inside the reservation. Land that is outside a tribe's reservation that is subsequently taken into trust by the United States for the tribe is also part of Indian country and the Indian reservation. That's the fee to trust process. This map shows you the results of 300 years of federal Indian policy. When you are talking about the lands of federally recognized tribes, you will notice that on the eastern half of the country, there are pockets of Indian lands, but they're not very big and they are spread far and wide. The further west you go, as tribes were removed from their traditional lands and relocated to reservations many states away, there are more of them and they are often much larger in size. So let's talk about Indian tribes. There are presently 574 federally-recognized Indian tribes. And they refer to themselves variously as tribes, or nations, or bands, pueblos, or communities, and in Alaska, there are native villages. There are 346 tribes in the lower 48 states, 35 of those lower 48 states, and 228 tribes in Alaska. I say presently because there's a process by which tribes can be federally recognized or restored to federal recognition, either administratively or by an act of Congress. So that number goes up periodically. There are also 63 tribes that are only recognized by their states, but they are formally recognized in Alabama, Connecticut, Georgia, Louisiana, Maryland, Massachusetts, New York, North Carolina, South Carolina, Vermont, and Virginia. There are also more than 200 tribes that do not have federal recognition. Federally recognized means that the United States recognizes a government-to-government relationship with a tribe and recognizes that the tribe exists politically as a domestic dependent nation. Federally recognized, and government-to-government, and domestic dependent nation are terms and phrases that you will see in Indian law cases, both inside and outside of the environmental sphere. Federal recognition provides certain federal benefits, services, and protections because of the special trust relationship between the United States and the tribe, but it also recognizes that tribes possess certain inherent powers of self-government that they had long before the United States was the United States, that have not been diminished or lost. Federal recognition is a prerequisite for a role as a tribe under federal environmental statutes. The list of federally recognized tribes is published annually in the Code of Federal Regulations. So tribal status. Tribes are independent, separate sovereigns. They are not an agency of the state, or a subdivision of the state, or an agency or subdivision of the United States. They are independent and separate. Tribal sovereignty refers to the right of tribes to govern themselves. The US Constitution recognizes that tribes are distinct governments that have, with only a few exceptions, the same powers as federal and state governments to regulate their internal affairs. Tribes retain all aspects of their sovereignty, except those that have been withdrawn by Congress, which has plenary authority over tribes, or which are inconsistent with overriding federal interests. Tribes have inherent authority to exercise their sovereign powers to protect the health and welfare of tribal members. Treaties, federal statutes, and executive orders can reserve rights of tribes in lands, waters, and natural resources both on and off an Indian reservation. Tribes can occupy a variety of roles in environmental law, and they are not mutually exclusive. A tribe can be an enforcement agency. It could be a regulatory or permitting agency. It can act in coordination and consultation for federal projects. It is always the beneficiary of the federal trust responsibility. And it can also be a citizen under the citizen suit provisions of a handful of environmental statutes. The source of a tribe's authority to act under environmental laws can be statutory, either tribal law, or state law, or federal law, through the federal government's trust responsibility, through treaty rights, or through reserved rights. Tribes can also be delegated federal authority under environmental statutes. This is the same as the delegated authority to state governments to enforce what would otherwise be a tribe, excuse me, a federal environmental statute. So the Clean Water Act and the Clean Air Act have specific delegations. And the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, has specific statutory provisions. Tribes that are afforded treatment as state authority can implement and enforce federal environmental statutes. A tribe can also adopt and enforce resource protection codes as a matter of tribal law that are actually more protective than state or federal standards. Some examples of these include the Navajo Nation's CERCLA, the Bad River Band of the Lake Superior Chippewa Indians Environmental Response and Remediation Ordinance, and the Colville Confederated Tribes Hazardous Substances Control Act. I actually helped the Bad River Band and the Colville Confederated Tribes develop these statutes that are intended to be more protective of tribal members and the tribal reservation than state or federal standards would otherwise be. State and federal statutes can provide a specific role for tribes, mandatory coordination and consultation, for example. Under section 106 of the National Historic Preservation Act, agencies are required to consult with tribes in all steps of the process when a federal agency project or effort, for example, building a state, excuse me, a federal highway. When that project or effort may affect historic properties that are either located on tribal lands or when any Native American tribe or Native Hawaiian organization attaches religious or cultural significance to the historic property, regardless of where the property is located. Another example is the National Environmental Policy Act Council on Environmental Quality Regulations, which require agencies to consult with tribes and provide them with opportunities to participate at various stages in the preparation of an environmental assessment or an environmental impact statement, including participating as a cooperating agency. Executive agency policy also provides a role for tribes. Executive Order 13175, which is the coordination and consultation with Indian tribal governments EO, lays out specific requirements for executive agencies to develop their own coordination and consultation rules and regulations, and sets minimum standards for coordinating and consulting with Indian tribal governments. Consultation must be meaningful. And in order to be meaningful, it has to occur early enough in the process, that a tribe has the ability to influence the outcome of the decision. There are a number of consultation cases where a tribe has succeeded in delaying or stopping a project where an agency went all the way through its review process and was ready to issue a permit before it reached out to consult with the tribe. So at that point, it was sort of checking the box about consulting with the tribe rather than providing meaningful opportunity to influence the outcome of the decision. A failure to meaningfully consult with the tribe may violate both the administrative decision-making rules and regulations, but it also can violate the agency's trust responsibility In 1994, then president George W. Bush issued a memorandum for the heads of executive departments and agencies that articulated the United States Government's view of the government-to-government relationship between it and federally-recognized tribes. The memorandum acknowledged the unique legal relationship between tribes and the federal government, and outlined principles that executive departments and agencies were required to follow in their interactions with tribal governments. Some states have adopted laws and policies recognizing a government-to-government relationship with tribes within their borders. Two examples of these are in Washington, RCW chapter 43.376, and in Oregon, Oregon Revised Statute 182.162. A tribe has a role in reviewing proposed agency actions in certain circumstances. For example, under Section 401 of the Clean Water Act, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 Water Quality Certification is issued or certification is waived. States and authorized tribes where the discharge would happen are generally responsible for issuing water quality certifications. In cases where a state or a tribe does not have authority, EPA is responsible for issuing its own certification. Some of the major federal licenses and permits that are subject to Section 401 include the Clean Water Act, Section 402, and 404 permits, FERC licenses for hydropower facilities and natural gas pipelines, and in-water construction permits under the Rivers and Harbors Act, section 9 and 10. Any project with a federal nexus requires coordination and consultation with Indian tribes and the protection of treaty rights. A federal nexus means either the federal government is issuing a permit, or some sort of an approval, or if it's providing federal dollars for a project that is being performed by a private company or a state government. More and more frequently, state government's commitments to government-to-government relationships with tribes have afforded tribes a substantive rather than just a procedural impact on state permit decisions. Here's some examples going back, geez, more than a decade. In 2010, a private waste handler was proposing to haul solid waste garbage from Hawaii across the Pacific Ocean and up the Columbia River to deposit it on a privately-owned landfill on lands adjacent to the Yakama Indian Nation Reservation. The Yakama Nation opposed the project because the Department of Agriculture, which would've issued the permit, had failed to meaningfully consult with the tribe and the impacts on the reservation and on the land where the landfill would be located, which was land that had been ceded by the tribe to the United States under the tribe's treaty. So a preliminary injunction was issued, and as is often the case, the preliminary junction also killed the project. So it was not developed. The Oregon Department of State Lands would have issued a lease to Amber Energy to develop a coal terminal at the Port of Morrow, which would've required a lease of state lands. But when federally-recognized tribes in the state of Oregon opposed the project, and in consultation with the Oregon DSL, articulated the impacts to its treaty rights and its treaty-protected fisheries, the state agency declined to issue the permit, and the project died. The Port of Arlington, which is another state agency on the Columbia River, actually got a permit from the Corps of Engineers to build a barge dock. And it started sinking pilings, it got 42 of them sunk under its permit before the Corps of Engineers put the halt to the project because it realized that it had failed to meaningfully consult with federally-recognized tribes in the state of Washington about impacts on their treaty-protected resources. After halting further construction, the Corps of Engineers revoked its permit and eventually required that the 42 pilings be removed from the river. Northwest tribes in particular have been organized and opposed to fossil fuel projects in British Columbia, Canada, and Washington State, and Oregon, and have been successful, in coordination with environmental agencies, or excuse me, environmental organizations, citizens' groups, in opposing and preventing the permitting a number of projects in the Northwest. So, regulatory authority of tribes under environmental laws. First, we look just at general regulatory authority. The easiest thing to conceptualize is when a tribe does have complete jurisdictions. So tribes have criminal and civil jurisdiction over tribal members on the reservation. Tribes also have civil regulatory jurisdiction over trust lands and lands held in fee by tribal members. Trust lands, remember, are lands that are owned in fee by the United States and held for the benefit of a tribe or an individual Indian. Fee lands, in this context, refer to lands that were originally tribal reservation lands that have been sold out of trust, that are owned by a tribe, or an Indian, or a non-Indian in fee. So they're not held in trust for the tribe or the tribal member. Tribes do not have criminal or civil jurisdiction over non-members, so non-Indians, or lands held in fee by non-members as a general rule. But that rule is subject to limited exceptions. Those limited exceptions were first articulated by the United States Supreme Court in a case called Montana v. United States in 1981. And these are referred to as the Montana Exception. And the exceptions are that the tribe may have jurisdiction, civil jurisdiction, over non-members on the reservation and fee land owned by non-members, where there is a contractual relationship between the non-member and the tribe or in matters affecting tribal health, welfare, and sovereignty. For about 40 years, courts that analyzed the Montana Exception generally found that the exception did not apply. It wasn't until 2021 when the Supreme Court affirmed the Ninth Circuit Court of Appeals' decision, finding that the Montana Exception did apply. And it applied in a circumstance involving the FMC Corporation's Superfund site, which is located on the reservation of the Shoshone-Bannock tribes in Idaho. And the court concluded that both Montana Exceptions were met, where FMC had entered into a contractual relationship with the tribes by signing long-term waste permit agreements, which allowed it to leave its hazardous waste where it was on the reservation rather than remove it as part of its Superfund cleanup. So that was the contractual relationship exception. And the court also found that the second exception applied because there was substantial evidence and expert testimony provided by the tribes that FMC's hazardous waste would remain stored on the reservation, indefinitely posing a continued threat to tribal health and welfare. So let's talk about a specific regulatory authority role that's recognized or created under federal law. The first is treatment in the same manner as a state, or TAS status. This is specifically provided for under the Safe Drinking Water Act, the Clean Water Act, and the Clean Air Act. Under CERCLA, a tribe has a specific statutory role. And under the Oil Pollution Act of 1990, or OPA, tribes have a specific statutory role. TAS authority means that EPA is authorized to treat federally-recognized tribes who are eligible for TAS in a similar manner as a state for implementing and managing certain environmental programs. Think about the framework for environmental regulations under environmental law. It's a cooperative federalism model, where EPA and federal law set the minimum standards that are protective of human health in the environment. And states can implement those laws within their borders. And they have the authority to impose standards that are stricter than EPA standards and more protective of resources and people within that state. TAS allows tribes to be treated the same way as a state. Three statutes expressly provide TAS authority, the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act. The Toxic Substances Control Act, or TSCA, and EPCRA, which is the Emergency Planning and Community Right-to-Know Act, are silent on the role of tribes, but EPA has interpreted those statutes to authorize tribal roles and tribal participation as well. For example, under EPCRA Section 313, which establishes requirements for facilities that are subject to the law that are located in Indian country to report their toxic release inventory information to the appropriate federally-recognized tribe, which makes perfect sense if you think about the reason for TRI reporting. A facility that has a certain quantity of toxic materials that it has manufactured, or created through its processes, or is storing on its facility has to report those to emergency responders in case they are responding to an explosion, or a fire, or some sort of a release, so that they know how to respond and what to bring with them. It makes perfect sense that EPA would require that TRI reporters also report that information to a tribe that may also be providing emergency response in the event of an environmental issue. Where land is located and how it is owned is important, of course, in defining what Indian country is, as we've previously talked about. This issue of what Indian country is was front and center in the US Supreme Court's decision in a case called McGirt v. Oklahoma in 2020, which received a lot of press because of the impacts and the significance to the state of Oklahoma. This is a criminal law case, but it has broad application in issues of Indian country, for reasons that we will discuss. But this case involved the Major Crimes Act, which is the source of federal jurisdiction for crimes, in which both the offender and the victim are Indians. And the crime occurred in Indian country. Mr. McGirt was an enrolled member of the Seminole Nation in Oklahoma. He was convicted in an Oklahoma state court of three serious sexual offenses that he committed against a child on the Muscogee Creek Reservation. After he was convicted, he challenged the state court's jurisdiction under the Major Crimes Act. He argued that the state didn't have any jurisdiction over him because he was an Indian offender, his victim was an Indian, and the crime occurred on the Muscogee Creek Reservation. The state of Oklahoma opposed Mr. McGirt's appeals and contended that the Muscogee Creek Reservation had been disestablished, or its boundaries made smaller through the sale of Indian lands to non-Indian members, so that over time it had shrunk, and the area where the crime occurred was no longer on the reservation. In July of 2020, the Supreme Court issued a five-four decision, written by Justice Gorsuch, which reversed McGirt's state court conviction. The court held that the reservation that had been established for the Muscogee Creek Nation under its 1833 treaty had never been formally disestablished or diminished by Congress, and therefore continued to exist as Indian country. And therefore the state of Oklahoma does not have jurisdiction under the Major Crimes Act. The effect of this decision from Oklahoma's perspective was that essentially two thirds of the state, after July of 2020, became an Indian reservation, where it had not previously been an Indian reservation because lands had been sold out of trust status. So McGirt raises the potential for the exercise of civil, and for our purposes, environmental regulatory jurisdiction by the Muscogee Creek Tribe, the Cherokee Nation, the Seminole Tribe, the Chickasaw, and the Choctaw Nations, all of the tribes in Oklahoma, over non-Indians on fee land within the areas that are now deemed to be part of Indian country. It also could be applied broadly to tribes in other states with reservations that were not formally disestablished or diminished by Congress. So what does a tribe have to do to be subject to TAS authority? First, the tribe has to be federally recognized. Second, the tribe has to prove that it has a governing body that is capable of carrying out substantial governmental duties and powers, so a government has a government. A proof that the tribe has jurisdiction over the geographical area where the program will be enforced. So is this on reservation? And then proof that the tribe is capable of carrying out the functions of the program. For example, does the tribe have an environmental enforcement agency or a natural resources department? It's important to understand that as a matter of policy, EPA does not deny TAS applications that are submitted by federally-recognized tribes. They may not grant TAS authority immediately, they may send the application back with reasons for why it had not yet been granted, but EPA works with federally-recognized tribes so that they can satisfy the requirements to be treated as states for these federal statutes. Because since 1984, EPA has a policy that federally-recognized tribes are the best entities for enforcing environmental law on the reservation. So let's talk about the various statutes. First, the Safe Drinking Water Act. This act was established to protect the quality of drinking water in the United States. It focuses on all waters that are actually or potentially designated for drinking use, whether from above ground or underground sources. It authorizes EPA to establish minimum standards to protect tap water, and requires all owners or operators of public water systems to comply with these primary health-related standards. EPA also establishes minimum standards for programs to protect underground sources of drinking water from endangerment by underground injection of fluids. EPA generally will not delegate Safe Drinking Water Act programs to states for implementation on Indian lands. So if a tribe does not have TAS authority under the Safe Drinking Water Act and has not established standards for protecting tap water and underground sources of drinking water, then EPA will enforce the federal standards, as opposed to allowing a state to enforce state standards on an Indian reservation. The Clean Water Act establishes the basic structure for regulating the discharges of pollutants into the waters of the United States and regulating the quality standards for surface waters. Eligible TAS tribes may implement and manage Clean Water Act programs, including developing water quality standards under Section 303-C, providing water quality certifications for federal projects under Clean Water Act Section 401, issuing or enforcing national pollutant discharge elimination system, NPDES permits, under Section 402, issuing dredge and fill permits, under Section 404, and identifying waters as impaired for purposes of the impaired waters listing under section 303-D. The development of water quality standards provides the foundation for enforceable pollution control measures, under federal law, under state law, under tribal law. Water quality standards that are promulgated by states and approved by EPA are not legally enforceable on Indian reservations. In order to give force and effect to the Clean Water Act on an Indian reservation, you have to use federal or tribal water quality standards. More stringent tribal water quality standards may be imposed on off-reservation upstream discharge point sources. In 1996, the ninth, excuse me, the 10th circuit concluded that the city of Albuquerque's water treatment facility had to implement secondary treatment measures so that the quality of its discharges, when they made it into the river and flowed over the reservation boundary, did not violate the tribe's water quality standards, which were more stringent and more protective than the state standards. And the state permit had authorized the releases under the state standards. The Clean Air Act is the comprehensive federal law that regulates air emissions from both stationary and mobile sources. Among other things, the Clean Air Act authorizes the EPA to establish national ambient air quality standards to protect public health and public welfare and to regulate the emissions of hazardous air pollutants. In 1990, the Clean Air Act was amended to provide expanded regulatory authority to federally-recognized tribes over air pollution, and it authorized EPA to treat tribes as states and to provide grants and technical assistance to carry out the functions specified in the Clean Air Act. The rule provides that tribes will be treated in the same manner as states for virtually all Clean Air Act programs. Now, air is an extraordinarily complex media to regulate, as you can imagine. So the rule authorizes but doesn't require tribes to develop and submit Clean Air Act programs. They can implement those programs or even portions of the programs that are most relevant to the air quality needs of the tribes. But once authorized, tribes with approved Clean Air Act programs have authority over all air resources within the exterior boundaries of the reservation, including non-Indian owned fee lands. For areas that are not on the reservation, tribes have to demonstrate the basis for their jurisdiction, in addition to satisfying the TAS standards. There's also a program under the Clean Air Act called the Prevention of Significant Deterioration, or PSD program. And under those provisions of the act, tribes, just like states, can redesignate areas that are already meeting the national ambient air quality standards and impose stricter air quality requirements that are meant to constrain upwind emissions, as well as emissions within the redesignated area. An example of this is Grand Canyon. So the geographic area that includes the Grand Canyon had a haze problem. And in order to clean up the air at this nationally-recognized monument, this important national park, the area was redesignated so that upwind emitters had to clean up their emissions so that the air around the Grand Canyon became clearer and you could see farther. That's an example of a PSD provision and a redesignation of an area. Tribes can petition the EPA administrator to regulate upwind sources that are significantly contributing to their non-attainment problems or interfering with the maintenance of the standards or with their PSD measures. The Clean Air Act and EPA regulations encourage cooperative planning efforts among states and tribes to address regional-scale pollution problems. TAS authority, under the Clean Air Act, qualifies a tribe to be treated as an affected state under the operating permits program. And that means that they receive a notice and an opportunity to comment when a neighboring state issues a permit to a facility that has the potential to impact tribal lands. An affected state has the right to review a draft permit prior to its public notice period and make recommendations for changes to the proposed permit. The state that is issuing the permit must explain any refusal to accept recommendations by the affected state. CERCLA and SARA, the Superfund Amendment and Reauthorization Act, these provide specific statutory roles for tribes that do not require a tribe to satisfy TAS authorities. The 1986 SARA legislation expanded the role of tribes in both the cleanup side of CERCLA and the natural resource damage action side of CERCLA. Generally, the governing body of an Indian tribe is afforded substantially the same treatment as states with respect to many provisions of CERCLA. Tribes may directly or indirectly enforce under CERCLA. Directly, tribes can carry out response and federal enforcement actions under a cooperative agreement, just like states can. Indirectly, tribes can influence a cleanup through EPAs selection of cleanup standards. Tribal air, water, soil, or sediment standards can be identified as ARARs, applicable or relevant and appropriate standards, to be implemented in a remedial action. Because of their statutory role under CERCLA, tribes are entitled to oversight costs, just like state and federal governments are, even when the federal government is the entity being overseen. In a recent decision out of the United States District Court for the eastern district of Washington, the Confederated Tribes and Bands of the Yakama Indian Nation received a judgment for the costs they incurred in reviewing and commenting on the proposed remedial actions at the Bradford Island site performed by the United States Corps of Engineers. Tribes are also entitled to enforcement costs, including attorney's fees under CERCLA. Because the tribe is a sovereign, just like the United States Government or a state, and sovereigns are statutorily authorized under Section 107, 42 USC 9607 of CERCLA to recover response costs, attorneys' fees for enforcement activities that are related to removal or remedial action is an enforcement activity for which tribes can recover their attorney's fees. That was the Pakootas v. Teck Cominco Metals case, another decision out of the United States District Court for the eastern district of Washington. The Oil Pollution Prevention Act, or OPA, sometimes called OPA 90, authorizes federally-recognized tribes to participate in and be reimbursed for oil spill response cleanup actions and natural resource damage assessment and restoration activities. It does not apply to tribes that are not federally recognized, however. So after the 2010 Deepwater Horizon Oil Spill, several state-recognized tribes in Louisiana were shut out of the process, even though they were significantly harmed by the oil spill. Because they are not federally recognized, they were not entitled to bring OPA natural resource damage claims. OPA also established special procedures for Alaska native corporations or Alaska native villages to bring damage claims. This was as a consequence of the Exxon Valdez Spill and subsequent litigation. Natural resource damages. So both CERCLA and OPA identified tribes as a natural resource trustee. They permit recovery by tribes for injury to or loss of natural resources belonging to, managed by, controlled by, or appertaining to a tribe, caused by the release of hazardous substances or an oil spill. So think about the regulatory framework of CERCLA. EPA is responsible for the remedial side of CERCLA. EPA decides what is clean, meaning what is protective of human health in the environment. But clean does not mean that a site has been restored to pre-release conditions, its condition before the release of hazardous substances. The difference between clean, or protective of human health and the environment, and pre-release conditions is what Natural Resource Damages are intended to address. NRD claims are brought by federal, state, and tribal trustees, typically federal and state natural resource agencies like Fish and Wildlife, or the Department of Ecology, or NOAH, National Oceanic and Atmospheric Administration, but not EPA. EPA is not a trustee. So trust obligation is sort of an overriding consideration anytime there is an Indian tribe involved. The trust obligation can be conceptualized like this. The federal government holds title to significant portions of reservation lands, and it holds them in trust for the benefit of the tribe. Holding this land in trust and other resources in trust creates a fiduciary obligation that is owed by the federal government to the tribe to protect or enhance tribal assets, economic, natural, human, or cultural. It imposes fiduciary standards on the conduct of the executive, the president, that are carried out through executive agencies. Those standards are to act with care and loyalty, to make trust property income-productive, to enforce reasonable claims on behalf of Indians, and to take affirmative actions to preserve trust property. Any federal government action is subject to the United States' fiduciary responsibility to tribes, even if it's not articulated in the statute or in federal regulations. For example, in the Muckleshoot Indian Tribe v. Hall case, out of the western district of Washington, the court issued an injunctive order preventing the construction of a marina, even though it had been permitted by the Corps of Engineers, that would have eliminated a portion of one of the usual and accustomed fishing areas of the Muckleshoot Indian Tribe and the Suquamish Indian Tribe. Because the Corps of Engineers, in issuing the permits, had violated its fiduciary obligation to the tribe. The Corps of Engineers learned its lesson. And then eight years later, it was sued for denying a permit to develop a fish farm elsewhere in the Puget Sound region, where net pens that were placed in Rosario Strait would have impacted another tribe, the Lummi Nation's fishing rights, at one of its usual and accustomed fishing places. The project proponent sued the Corps and argued that the Corps regulations did not authorize consideration of tribal fishing rights. That's slightly different than the Corps regulations did not require. It said that they did not authorize the Corps to consider tribal fishing rights in making its permitting decision. The court held that in carrying out its fiduciary duty, it's the Corps' responsibility to ensure that Indian treaty rights are given full effect, and it's that fiduciary duty, rather than any express regulatory provision, which mandates that the corps take treaty rights into consideration when it makes its permitting decisions. Treaty rights are an important consideration for any federal permit being issued anywhere. A treaty between the United States and an Indian tribe is essentially a contract between two sovereign nations that can be enforced by a tribe against the federal government. But Article 6, Clause 2 of the US Constitution also says that all treaties made under the authority of the United States are the supreme law of the land, and judges in every state are bound thereby, so with both the contract and the supreme law of the land. Only Congress has the authority to modify or abrogate the terms of Indian treaties. It's important to remember that treaties didn't create rights in tribes. It didn't give them rights. They actually preserved rights to tribes that tribes already possessed, that they did not give up to the United States. So in exchange for ceding land and resources and relocating to reservations, treaties often reserved to tribes the right to hunt, fish, farm, gather, prey, engage in culturally-significant activities in designated locations, places that they had done those things for millennia prior to giving them up. Treaties may reserve to tribes certain rights to the use or taking of land, water, and other resources. For example, under the 1842 treaty with the Chippewa, tribes in the upper Midwest retained the right of hunting on the ceded territory with the other usual privileges of occupancy until required to remove by the president of the United States. Under the Stevens Treaties here in the northwest, tribes in Washington and Oregon retained the right of taking fish in all usual and accustomed grounds and stations, and further secured to said Indians in common with the citizens of the territory together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands. In determining what rights a tribe reserved to itself under a treaty, the language of the treaty controls. So be sure that when you are reading them, read them carefully. Tribal treaties, like the tribes that negotiated them, are not all the same. For example, the Yakama Nations treaty, so one of the Stevens Treaties negotiated by territorial Governor Stevens with tribes in what is now Oregon and Washington, the Yakama Nation's treaty reserved a right to travel, and the language is the right, in common with citizens of the United States, to travel upon all public highways, which was recently interpreted by the United States Supreme Court as prohibiting the State of Washington from imposing attacks on the transportation of fuel within the state by a Yakama Nation tribal corporation, because imposing a tax was impairing the right to travel. This right to travel is not in the other Stevens Treaties. So the other tribes, the other 19 tribes in the Puget Sound region do not have the same right to travel. Executive orders or statutes may also reserve to tribes certain rights to the use or taking of land, water, and other resources. For example, the Colville Confederated Tribes in northeastern Washington, by the Canadian border, do not have a treaty. The Colville Indian Reservation was created by President Grant under an executive order in 1872. But under an 1891 agreement ratified by Congress, the north half of the reservation established in 1872 was given back to the United States and opened up for settlement by non-Indians. Article 6 of that ratified agreement provided expressly that the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in any wise abridged, which the US Supreme Court has affirmed as an off-reservation right to hunt and fish in that area. Reserved fishing rights are a big focus of attention under tribal treaties because, of course, tribes subsisted on fish for thousands of years. Tribes are often reserved fishing rights under tribal treaties. In Washington, treaty tribes are entitled to half of the harvestable surplus of salmon and steelhead in western Washington. In Minnesota, the privilege of hunting, fishing, and gathering wild rice upon the lands found in Wisconsin and Minnesota ceded by the Chippewas to the federal government, and in the rivers and lakes in the territory ceded, is guaranteed to the Indians during the pleasure of the president of the United States. That's the treaty of the Chippewa. Treaty rights extend to the protection of fisheries habitat. This is the line of cases in the US v. Washington series, Boldt and Boldt II, named after the judge who decided them. Treaty rights may require that certain instream flows be maintained outside of the boundaries of an Indian reservation for the protection of fish that are subject to harvest under an Indian treaty right. The state of Washington's failure to construct, repair, and maintain culverts under state highways and roads has been found by the United States Supreme Court to be a violation of the tribes' treaty rights, because it impeded anadromous fish passage, damaging or destroying fish runs and habitat, and denying tribal fishers the ability to earn a moderate living. That's often referred to as the Culverts case. But it's just the most recent high profile decision in the US v. Washington line of cases. Treaties can also reserve water rights, but water rights can also be reserved just by virtue of the creation of a reservation. The Winters Doctrine, named after the Winters v. United States case in 1908, says that the establishment of an Indian reservation implies a right to sufficient, unappropriated water to accomplish its purpose. The priority of a water right for aboriginal uses is time immemorial. The priority for other uses is the date of the treaty, or statute, or executive order that established the reservation. Reserved water rights are not subject to abandonment or forfeiture for non-use in states where you have to use or lose a water right. That doesn't apply to a tribe. A tribe is entitled to use water for any lawful purpose. Groundwater as well as surface water is reserved, if needed, to fulfill or protect the purpose of the reservation. Tribal citizen suits. Okay, so you often think about environmental organization filing citizen suits to enforce standards under the Clean Water Act for polluters who are alleged to be violating the act with their permits. But tribes can also be citizens but not under every environmental statute that has a citizen suit provision. Every federal environmental law that's been enacted since 1970 includes a citizen suit provision that allows civil suits by private individuals and non-federal entities seeking enforcement of the law. The idea behind the enactment of the citizen suit provisions is a recognition that sometimes the federal government doesn't want to or cannot enforce the law in certain circumstances. And so, it allows citizens to step in and do that for the federal government. Citizen suits may be directed at EPA for failing to perform mandatory duties or against facilities that are alleged to be in violation of the law or the permits that are issued under that law. The citizen suit provisions authorize any person to act as a private attorney general seeking enforcement of statutory and administrative requirements. So whether a tribe can bring a citizen suit depends upon how a person is defined under the particular statute. Under the Clean Water Act, a person is an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body. And the municipality definition includes an Indian tribe or an authorized Indian tribal organization. So a tribe can be a citizen and can bring a citizen suit under the Clean Water Act. Under RCRA, the Resource Conservation and Recovery Act, a person is defined to include municipalities, and municipalities are further defined to include an Indian tribe or authorized tribal organization. So a tribe can bring a citizen suit for endangerment under RCRA. Under CERCLA, a person is an individual firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States government, state, municipality, commission, political subdivision of a state, or any interstate body. A tribe is not a person under CERCLA, and therefore cannot file a citizen suit under CERCLA. An individual tribal member can bring a citizen suit but not a tribe. As an aside, because a tribe is not a person, a tribe can also not be a responsible person, a potentially responsible person, or liable under CERCLA for release of hazardous substances. An individual can, but not a tribe. Under the Clean Air Act, a person is defined as an individual, corporation, partnership, association, state, municipality, political subdivision of a state, and any agency department or instrumentality of the United States, and any officer, agent, or employee thereof. A municipality does not include a tribe under the Clean Air Act, so a tribe is not a person and cannot bring a Clean Air Act citizen suit. Thank you for your participation in the Indian Tribes and Environmental Law: the Role of the Third Sovereign CLE. I hope it met our learning objectives and that you enjoyed it. Thank you very much.
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