Environmental Protection in Indian Country: The Fundamentals

• Date: 01 November 2017

11-2017 NEWS & ANALYSIS 47 ELR 10905

D I A L O G U E

Environmental Protection in

Indian Country: The Fundamentals

Summary

Tribes and Native villages are demonstrating rein-

vigorated environmental activism as they face new

pressures on the natural resources many depend on

for their economic and cultural livelihood. From

the Standing Rock Sioux Tribe’s protest against the

Dakota Access Pipeline, to Alaska Native villages relo-

cating their communities in the face of rising sea lev-

els, to impacts to the Navajo Nation from the closure

of a major coal plant, there is a growing role for envi-

ronmental attorneys in Indian country. Yet this eld

is distinct, involving matters of sovereignty, reserved

treaty rights, and religious freedom. On July 26, 2017,

ELI held a seminar that explored key concepts of the

trust relationship between tribes and the federal gov-

ernment, and the role tribes and Native villages play

in managing their natural resources. e discussion

covered a number of the legal tools uniquely available

to tribes, and the speakers provided practitioners with

the fundamentals of Indian law, application of federal

environmental statutes to tribal lands, and the chal-

lenges to—and opportunities for—responsibly man-

aging natural resources in Indian country. Below, we

present a transcript of the discussion, which has been

edited for style, clarity, and space considerations.

Cynthia Harris (moderator) is a Sta Attorney at the

Environmental Law Institute.

Suzanne Schaefer is Counsel at Dentons.

Ethan Shenkman is a Partner at Arnold & Porter Kaye

Scholer.

Elizabeth Kronk Warner is a Professor of Law, Associate

Dean, and Director of the Tribal Law and Government

Center at the University of Kansas School of Law.

Cynthia Harris: We’re excited to bring you this program

on environmental protection in Indian country, and with

an a mazing expert panel. First, we have Suzanne Schaef-

fer, who is a counsel at Dentons, where she is a member of

both the Public Policy and Regulation Practice Group and

the Native American Law and Policy Practice Group. Her

expertise is in Indian lands and environmental compliance.

We are also privileged to have Ethan Shenkman, a part-

ner in the Environmental Practice Group at Arnold & Por-

ter Kaye Scholer. He brings to this practice more than 16

years of government experience related to Native American

communities and Indian tribes. He most recently served as

deputy general counsel at the U.S. Environmental Protec-

tion Agency (EPA), where he superv ised legal work per-

taining to tribal issues.

Lastly, we’re joined by Elizabeth Kronk Warner, pro-

fessor of law, associate dean, a nd director of the Tribal

Law and Government Center at the University of Kansas

School of Law. She is also a member of and appellate judge

for the Sault Ste. Marie Tribe of Chippewa Indians, and

serves as a district judge for the Prairie Ba nd Potawatomi

Nation in Kansas.

To start o, we’re going to give a bit of context on this

issue—an area that’s been generating a lot of interest lately,

for a number of reasons. ere have been recent changes in

the law and policy. ere has been increased pressure on

natural resources from pollution, climate change, and eco-

nomic development. ere has been an ongoing movement

over the past few decades in the area of tribal sovereignty

and self-determination, with religious and cultural values

playing a huge role, and also on food security due to these

increasing pressures on natural resources. ere’s a histori-

cal context we have to keep in mind—a history of injustice,

which includes exploitation of natural resources on tribal

lands, and pollution as well.

To provide more context on what exactly “Indian coun-

try” is, there are about 6.6 million American Indians and

Alaska Natives, and 22% live on reservations, on trust

lands, or in Native villages. ere a re 567 federally recog-

nized tribes, and more than 200 of those are Alaska Native

villages. us, it’s an extensive amount of land. ere’s

actually a huge amount of natural resources located in

Indian country, especially in Alaska—about 42% of the

entire state—in often remote locations. Many reservations

are small, isolated communities, although there are excep-

tions, such as the Navajo Reservation. One thing to note:

statistically, this is the most disadvantaged and heavily

regulated group in terms of policies, laws, and the percent

of people living below the poverty line.

History is very important to understanding tribal laws

as well as Indian law. We could spend several sessions

discussing that, but to give you some highlights, during

the early period, this was the history of colonization and

conquest. After the American Revolution, it was more of

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.