Environmental Protection in Indian Country: The Fundamentals

Date01 November 2017
11-2017 NEWS & ANALYSIS 47 ELR 10905
Environmental Protection in
Indian Country: The Fundamentals
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
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT