Chapter 11 Tribal Sovereignty, Environmental Justice and NEPA in Natural Resource Development on Indian Lands

• Jurisdiction: United States

Chapter 11 Tribal Sovereignty, Environmental Justice and NEPA in Natural Resource Development on Indian Lands
Jeanette Wolfley Wolfley Law Office Fort Hall, ID

JEANETTE WOLFLEY, enrolled in the Shoshone-Bannock Tribes, practices law in Idaho, representing exclusively Tribal clients' interests in a wide variety of Indian law, natural resources and economic development matters. She has a wealth of litigation experience before federal, tribal and state courts, legislation work before Congress and state legislatures, and administrative law practice before federal administrative agencies. Wolfley served as General Counsel for the Shoshone-Bannock Tribes from 1988 to 1996 before serving as Special Counsel. Prior to her general counsel work she worked with the Native American Rights Fund in Boulder, Colorado where she served as Staff Attorney and Deputy Director for six years, 1982 - 1988. She joined the University of New Mexico School of Law during the years 2013 - 2020, where, as a tenured professor she taught Federal Indian law, Indian Water rights, Federal Jurisdiction, Gaming Law, Economic Development in Indian Country, and Tribal Natural and Cultural Resources courses, and published numerous articles in the area of federal Indian law and natural resources. In January 2017, Professor Wolfley opened and supervised in the Natural Resources and Environmental Law Clinic, providing students with an opportunity to represent New Mexico tribal governments, acequia associations, and land grant groups in environmental and natural resource matters. She serves as an appellate judge on the Southwestern Intertribal Court of Appeals. She is a graduate of the University of New Mexico School of Law, and received her B.A. in Psychology and American Indian Studies from the University of Minnesota.

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I. INTRODUCTION

Tribes are important stakeholders in any proposed energy development project located near Indian lands, Indian reservations, and in or near ancestral or aboriginal lands that were occupied by the tribes prior to entering into treaties with the United States. There is a myriad of federal laws and regulations that control the leasing, permitting and mining of natural resources on-reservation and on public lands. So too, there are numerous executive orders, policies and guidance documents which seek to ensure that tribal governments and their communities have an effective voice, meaningful participation, a seat at the table in decision-making impacting their health, water, air, neighborhoods, and cultural interests. This paper considers a number of federal Indian law doctrines and how they intersect with the concept of environmental justice and the National Environmental Policy Act process.

The paper begins with a general background review and discussion of several key federal doctrines that are foundational to protection of Indian lands - (1) tribal sovereignty; (2) the federal trust responsibility to tribal nations; (3) treaty rights; and (4) consultation; and their application in permitting, leasing, and federal or private action impacting reservation lands and public lands. This section is followed by a discussion of NEPA and environmental justice. The final section considers the recent flurry of executive orders relating to environmental justice, NEPA proposed revisions, and the memoranda on tribal treaty rights, consultation, and the role they play in ensuring that tribes are part of the decision making process that entails natural resource development, and renewable resources. The significant changes in federal policy are of particular importance as the federal government seeks to transfer to a more sustainable balance of conservation and renewable development on tribal and public lands.

II. TRIBAL SOVEREIGNTY, TREATY RIGHTS, TRUST DOCTRINE AND CONSULTATION

Native lands today, once thought to be barren and desolate areas fit only for Indians, cumulatively occupy over 55 million acres of land and 57 million acres of subsurface mineral estates.¹ The lands of Native nations sit on top of "nearly 30 percent of the nation's coal reserves west of the Mississippi, as much as 50 percent of potential uranium reserves, and up to 20 percent of known natural gas and oil reserves."² In all, according to the Department of Energy, Native lands today house over 15 million acres of potential energy and mineral resources—and nearly 90

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percent of those resources are untapped.³ Although tribal governments exercise sovereign powers over their lands, historically, the federal government has dictated the terms on which tribal energy resources are developed, and federal regulations have established the manner, means, and nature of benefits paid to tribes from those developments. It was federal bureaucrats—not tribal leaders—who decided when and for how much tribal energy resources could be leased to outside interests. Federal agencies were responsible for enforcing lease terms and accounting for the royalties paid to tribes from those leases. This federally dominated approach to the development and extraction of fossil fuel resources from tribal lands, premised on outside interests and passive tribal involvement reigned for much of the 20th century and had disastrous environmental impacts upon many tribes.⁴

Modern reservation and public land boundaries are not reflective of the traditional territories of Native people. Due to the federal policies of Indian removal, assimilation, and allotment, many areas with significant cultural and religious importance lie outside current tribal lands and are now located on federal public lands. Accordingly, today, tribal natural and cultural resources, and sacred areas may lie within the public domain - national parks, forest service, or bureau of land management lands. Indian tribes are critical stakeholders in land projects or activities located near their present-day reservations, ceded lands, and in or near aboriginal lands which were occupied by our Indian ancestors prior to the treaty making era because these lands are still an integral part of the Tribes' spiritual life. Mining, grazing, resource exploitation, development and pollution all impact tribal cultural resources. And, rock climbers, tourists, and recreational activities also are a part of the challenge. A variety of federal agencies⁵ play a role in regulating private activities such as grazing, mining, recreation, oil and gas production, and timber harvesting, all of which seriously impact tribal rights. Other federal agencies manage natural resources such as water and wildlife that are also vital to tribal people.⁶ Many of the lands, cultural resources and sites upon which Tribal people have lived for thousands of years are now in peril due to human activities and environmental degradation.

A. Tribal Sovereignty

There are 574 federally recognized tribes in the United States.⁷ While each tribe is unique and an independent sovereign, many tribes share experiences of colonization and have deep

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connections to their land, both culturally and legally. Tribes have their own creation stories, languages, governmental structures and laws. Indian tribes have sovereignty over their lands. This jurisdiction flows, not from delegation by Congress, but from "inherent powers of a limited sovereignty [that] has never been extinguished."⁸ Tribes possessed sovereignty over their land before the United States was established, and are self-governing entities and regulators. Tribal governments are not arms of the federal government, nor are they created by the federal government.⁹ This inherent sovereignty extends to the activities of tribal members, and to the activities of non-members, including most energy companies.

The concept of tribal sovereignty can be easily explained in legal terms. Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory."¹⁰ The inherent sovereignty of Indian tribes exists by virtue of the federal government's historical recognition of Indian tribes as independent political entities, whose existence predates this nation's existence.¹¹ Although today, tribes still possess sovereign authority over both their members and their territory, their sovereignty is no longer considered absolute. Rather, it is described as having "a unique and limited character."¹² It is unique in that it is limited by the government-to-government relationship between the tribes and the United States, one premised upon the history of treaty making and broad congressional authority to regulate Indian affairs. It is limited by the Supreme Court's announcement that Indian tribes, in submitting to the power and protection of the United States government, necessarily gave up some attributes of their sovereignty.¹³ The exercise of tribal sovereignty is essentially limited by the overriding interests of the United States government. These interests, of course, have been defined historically by the different federal Indian policies.

As a general rule, Indian tribes today still possess those aspects of their inherent sovereignty which are not expressly withdrawn by treaty or statute, or by "implication" as a necessary result of their so-called dependent status.¹⁴ The express limitations upon tribal sovereignty imposed by treaty or congressional legislation are the most apparent. The clearest examples are the numerous treaties under which the tribes ceded vast portions of their territory to the United States in exchange for certain concessions and reservations of smaller territory. With respect to the lands ceded to the United States, the tribes generally gave up their territorial sovereignty, though they retained their sovereignty over the territory they reserved. They possess broad aspects of inherent sovereignty that have not been given up by treaty, taken away by Congress, or divested by implication due to their dependent status articulated by the United States Supreme Court.¹⁵...