CHAPTER 14 ENVIRONMENTAL PERMITTING AND REGULATION IN INDIAN COUNTRY: REGULATING THE GAP
| Jurisdiction | United States |
(Mar 2011)
ENVIRONMENTAL PERMITTING AND REGULATION IN INDIAN COUNTRY: REGULATING THE GAP
QEP Resources
Denver, Colorado
CRISTOPHER J. CASTILLO served from 1990 to 1993 as the first Tax and Finance Director of the Northern Ute Indian Tribe with primary responsibility over the Tribe's severance tax and other financial matters. Since graduating from law school in 1996, Mr. Castillo has worked to partner Indian tribes with private entities in developing both corporate and tribal interests. Mr. Castillo is currently Senior Counsel for QEP Resources, Inc., an independent oil and gas company located in Denver, Colorado. In 2000, Mr. Castillo became a member of the Navajo Nation Bar where he was active on the Navajo Nation Bar's Training Committee. Mr. Castillo has developed and taught numerous courses on Navajo Nation law and he authored the Nation's treatise on the Navajo Nation Civil Rights Act. Mr. Castillo has over 29 years of business experience, including 10 years in financial management and 6 years in systems development. He received his undergraduate degree from Weber State University and his law degree from the University of Utah.
SYNOPSIS
I. INTRODUCTION
II. MODERN INDIAN POLICIES OF THE UNITED STATES PRESIDENT
A. SELF-DETERMINATION WITHOUT TERMINATION
B. THE GOVERNMENT TO GOVERNMENT RELATIONSHIP AND RESERVATION ECONOMIES
C. INCOROPORATING TRIBES INTO THE NATION'S FABRIC
D. A PUSH TO THE EXECUTIVE DEPARTMENTS
E. EXECUTIVE ORDER 13175, CONSULTATION AND COORDINATION WITH INDIAN TRIBAL GOVERNMENTS
F. MEANINGFUL CONSULTATION AND COLLABORATION: BROADENING EXECUTIVE ORDER 13175
III. INDIAN POLICIES OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
A. EPA'S 1984 INDIAN POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN RESERVATONS
B. EPA REGION 8 POLICY FOR ENVIRONMENTAL PROTECTION IN INDIAN COUNTRY
C. ADMINISTRATOR JACKSON REAFFIRMATION OF THE EPA INDIAN PROGRAM
D. PROPOSED FINAL POLICY ON CONSULTATION AND COORDINATION WITH INDIAN TRIBES
IV. THE TREATMENT AS A STATE PROGRAMS ("TAS")
A. EPA'S COMMON APPROACH TO TRIBAL TREATMENT IN THE SAME MANNER AS A STATE
B. THE CLEAN WATER ACT
C. CLEAN AIR ACT
D. SAFE DRINKING WATER ACT
V. OTHER ENVIRONMENTAL PROGRAMS WITH INDIAN COMPONENTS
A. COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
B. FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT
C. NATIONAL ENVIRONMENTAL PROTECTION ACT
D. TOXIC SUBSTANCES CONTROL ACT
E. RESOURCE CONSERVATION AND RECOVERY ACT
F. EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT
G. ENDANGERED SPECIES ACT
VI. DIRECT IMPLEMENTATION TRIBAL COOPERATIVE AGREEMENT PROGRAM
VII. CONCLUSION
I. INTRODUCTION
Chief Ouray of the Uncompahgre Utes described the Brunot Treaty of 1873 as "such an agreement as the buffalo makes with the hunter when his hide is pierced by arrows. All he can do is lie down and cease every attempt at resistance."1 Such has been tribal sentiment during the lion's share of the United States government-to-government relationship. From 19th century reservation establishment to allotment, to the 1934 Indian Reorganization Act's reassertion of tribal sovereignty, the federal government's approach to the nation's first inhabitants has never been a model of consistency.
The federal government's termination policy of the 1950s and 60s was particularly disastrous. The mid twentieth century marked an all time low for Indian tribes. First, the nation's tribes were mired in the worst economic and social conditions of any American group. Second, the Bureau of Indian Affairs governed tribal society with an "iron grip."2 Then on Concurrent Resolution 108 officially announced the termination policy as a 'final solution' that would lead to a sell-off of tribal lands, the withdrawal of all Federal support, and the rapid assimilation of Indian people into the majority society."3 Indian tribes fought back. "As Vine Deloria, Jr., put it, 'If we lose this one, there won't be another.'"4
And win it they did. Here is where this paper picks up -- at least as the federal government's Indian policy relates to environmental regulations on Indian lands. In 1970, President Nixon formally renounced the government's failed termination policy. Shortly thereafter, the nation's jurisprudence "indicated that the inherent governmental sovereignty retained by American Indian tribes and the federal-tribal relationship disrupted states' local prerogatives in Indian country...."5 The Environmental Protection Agency ("EPA") quickly stepped in.6
Regulating the gap begins with a look at the development of the federal government's modern Indian self-determination policy. This paper then drills into Administrator Ruckelshaus' and the EPA's 1984 Indian Policy, along with the current agency's implementation of President Obama's consultation and collaboration approach. The paper moves to an analysis of federal laws with Indian tribe treatment as state provisions, along with other laws that affect
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environmental regulation on Indian land. The paper closes with an analysis of EPA's Direct Implementation Tribal Cooperative Agreements program.
As noted, Indian tribes have come a long way since the federal government's termination days. Cooperative federalism has infiltrated and is attempting to flourish in Indian country. America's indigenous people's history is rich with triumph. Today Indian tribes stand on the cusp of another triumph -- the reality of environmental self-determination.
II. MODERN INDIAN POLICIES OF THE UNITED STATES PRESIDENT
Modern federal government Indian policies began with President Nixon's formal abolishment of tribal termination. President Reagan then emphasized the development of Indian economies and a commitment to a government-to-government relationship. Next, President Clinton pushed his administration's Indian policies out to the responsible federal agencies. Now President Obama is moving his administration into an era of consultation and coordination. As stated, an analysis of modern federal Indian policies must start with President Nixon's July 8, 1970 Special Message on Indian Affairs.
a. SELF-DETERMINATION WITHOUT TERMINATION
In mid 1970 President Nixon put an end to the federal government's policy of termination. President Nixon's July 8, 1970 Special Message on Indian Affairs refuted the fundamental premise behind the nation's termination policy and stated that "[t]ermination implies that the Federal government has taken on a trusteeship responsibility for Indian communities as an act of generosity toward a disadvantaged people and that it can therefore discontinue this responsibility on a unilateral basis whenever it sees fit."7 Instead, while the nation toiled in Vietnam, President Nixon viewed the government's commitment to Indian tribes as a solemn obligation. In particular, the President asserted that
[t]he special relationship between Indians and the Federal government is the result... of solemn obligations which have been entered into by the United States Government. Down through the years through written treaties and through formal and informal agreements, our government has made specific commitments to the Indian people. For their part, the Indians have often surrendered claims to vast tracts of land and have accepted life on government reservations.8
President Nixon's early commitment to Indian self-determination hinged on solemn treaty obligations and executive orders. To establish an effective Indian policy, President Nixon recognized the balancing necessary between the government's paternalism of the late 19th and early 20th century and termination of the 1950s and 1960s. Specifically, the President stated that where "Federal termination errs in one direction; Federal paternalism errs in the other. Only by clearly rejecting both of these extremes can we achieve a policy which truly serves the best interests of the Indian people."9
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And so the United States policy of Indian self-determination was reborn along with the goal of creating independent tribal governments that need not fear the unilateral withdrawal of United States support and concern. In the President's own words, self-determination and independence without the fear of termination "must be the goal of any new national policy toward the Indian people to strengthen the Indian's sense of autonomy without threatening this sense of community."10 In light of this new commitment the federal government "must assure the Indian that he can assume control of his own life without being separated involuntary from the tribal group. And we must make it clear that the Indians can become independent of Federal control without being cut off from Federal concern and Federal support."11
The next jump in the federal government's Indian policy came when President Reagan addressed President Nixon's end to tribal termination. President Reagan approached Indian country with an emphasis on developing reservation economies.
b. THE GOVERNMENT TO GOVERNMENT RELATIONSHIP AND RESERVATION ECONOMIES
As in the state context, the Reagan administration pushed for local control and accountability for Indian tribes. In President Reagan's January 24, 1983 Indian Policy Statement, the President stated that "[t]his administration believes that the responsibilities and resources should be restored to the governments which are closest to the people served. This philosophy applies not only to state and local governments but also to federally recognized American Indian tribes."12 President Reagan's statement recognized the failures in the Nixon, Ford and Carter administrations' approach to Indian policy. While paying lip service to tribal self- government, the President stated that:
Since 1975 there has been more rhetoric than action. Instead of fostering and encouraging self-government, Federal policies...
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