CHAPTER 11 ENFORCEMENT OF ENVIRONMENTAL LAWS IN INDIAN COUNTRY1
| Jurisdiction | United States |
(May 1999)
ENFORCEMENT OF ENVIRONMENTAL LAWS IN INDIAN COUNTRY1
David J. Janik
Environmental Protection Agency
Denver, Colorado
Presented at the Special Institute on
Natural Resources Development and Environmental Regulation In Indian Country
Sponsored by the
Rocky Mountain Mineral Law Foundation and the
ABA Section of Natural Resources, Energy, and Environmental Law
Hyatt Regency (Downtown), Denver, Colorado
May 21, 1999
I. Tribal Context for Environmental Management
A. Population: 1990 Census estimates that there are approximately 1.9 million individuals who identify themselves as American Indian, Inuit, and Aleut. There may have been an under-count of approximately 12%.
B. Demography: Tribal communities exist in small towns, villages, large metropolitan areas, on reservations and off reservations. Most are located in the West. High populations in Oklahoma, California, Arizona and New Mexico. An important population trend in Indian country (used here generally, not the legal definition) indicates that tribal members are not leaving their homelands. Instead, the majority population is increasing around them, leading to high populations of non-members within tribal homeland areas. Indian lands comprise less than 2% of their former areas. Indian lands vary widely in size and demographic composition. In 1990, the federal government recognized 278 Indian land areas as reservations. Some land bases comprise millions of acres while others contain less than 100. Significant portions of Indian lands are owned and inhabited by non-Indians. The implications for this, given that EPA's policy is that tribal governments are the primary authorities for carrying out environmental management responsibilities, is that tribal environmental management systems will need to be developed to serve both tribal and non-tribal member populations.
C. Social: Generally a young population, large families, high unemployment rates, high poverty rates, and high mortality rates in some specific health areas.
D. Economic: Tribal governments generally do not preside over healthy economies. Their ability to raise revenue through taxation is still limited because poverty is still a common characteristic of tribal communities. While trends in increased gaming
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activities and other economic enterprises tend to indicate an accretion of wealth in tribal communities, such prosperity is we believe, limited to just a very few tribes. In 1997, 67% of the federally recognized tribes had no gaming operation. Of the tribes that did have gaming, 10% of them earned 56% of the gaming income. Modest gains made by most tribes are directed at important community needs such as housing and education. Tribal governments are large land holders in their communities in many instances. They are not only the governing institution but they may embody also religious institutions as well as operate as market participants in efforts to address economic well-being.
E. Cultural Landscape: In working with Tribal governments, it is important to take into consideration, the tribal cultural landscape because it is an extremely important part of tribal life. Family and kinship are important relationships. Land and natural resources stewardship is a strong tribal value even though it is be challenged by the need for economic well being. The existence of health land and natural phenomena are intricately related to human well-being as well as that of plants and animals who exist on the same level as humans. Sacredness is attributed to places and resources. Water and air for example are sacred as well as essential to life. In order to carry on important cultural activities, protection and conservation of natural resources is essential. For reference and religious life purposes, holy places and natural landmarks must continue to exist. Water, salmon, roots and berries are holy foods still important in ceremonial life. Certain grasses are important for basket-making, some baskets central to ceremonies. The education of young people in traditional ways relies on the continued existence of many of these things.
II. EPA-Tribal Relationship
A. EPA began over 25 years ago, creating partnerships with states in carrying out federal environmental laws. Only recently, since 1984, has EPA begun to create the same partnership with the Tribes after recognizing that generally, states did not have regulatory authority in Indian country.
B. The Indian program at EPA is multi-media as with the states but the need for a different approach has been recognized because of the unique nature of Tribal governments and because of federal Indian law considerations and other federal policies.
1. Trust Responsibility: The foundation of EPA's relationship with tribal governments lies within the federal trust responsibility arising from treaties, statutes, executive orders and the historical relationship between the United States and the Tribes. EPA recognizes that it must act in accordance with this responsibility when taking actions that affect tribes.
a. As a general responsibility, EPA recognizes that it must consult
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with and consider the interests of Tribal governments when taking actions that may affect tribes or their resources. EPA is required to assess the impacts of their plans, projects, programs and activities on tribal trust resources to assure that tribal rights and concerns are considered in decision making to the extent practical and permitted by law. The Supreme Court has noted that the federal agencies are "charged with moral obligations of the highest responsibilities and trust." The general trust requires for example, that ambiguities must be construed in favor of Indians. It also includes the protection of the sovereignty of each tribal government.
...b. The specific component of trust responsibility arises from a formal action of the United States such as a treaty, statute or executive order. It is a fiduciary relationship arising when the federal government assumes elaborate control over trust assets. An example of this might be tribal assets such as timber, land, funds, etc. When Congress has directed a federal agency to manage a particular tribal interest, common law trust terms are applicable: beneficiaries and trust corpus. Whether EPA has such specific responsibility raises unique issues. Nonetheless, it is clear that EPA must ensure that its actions are consistent with the
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