Fulfilling the executive's trust responsibility toward the native nations on environmental issues: a partial critique of the Clinton administration's promises and performances.

• Author: Wood, Mary Christina
• Position: Symposium on Clinton's New Land Policies

1. Introduction

   In a fittingly symbolic display of nature on April 29, 1994, clouds darkened in the sky over the south lawn of the White House as a tribal leader waved eagle feathers toward the four comers of the earth against a background of beating drums, traditional singing, and burning sweet grass. The ceremony opened an historic summit between the President of the United States and over two hundred leaders of Indian tribes from across the country. President William Clinton, the first president in history to invite leaders from all 547 recognized tribes to meet and develop federal Indian policy, promised a new era of partnership between the native nations and the federal government.(1) Holding a sacred eagle feather in hand the President paid important tribute to the place of the native peoples in the ecological destiny of the United States:

   [F]or thousands of years, you have held nature in awe, celebrating the bond between Earth and the Creator. You have reminded people that all of us should make decisions not just for our children and their grandchildren but for generation upon generation yet to come.

   I believe in your rich heritage and in our common heritage.... ....

   In every relationship between our people, our first principle must be to respect your right to remain who you are and to live the way you wish to live.... I pledge to fulfill the trust obligations of the Federal Government.(2)

   The President's words appropriately give recognition to the close relationship between the native nations and the natural environment. Many peoples continue to lead a substantially land-based way of life(3) that depends upon ecosystem health and a continued abundance of natural resources such as water and wildlife. Consequently, any evaluation of Administration's record on environmental policy must necessarily address issues.

   This Article presents a partial critique of the Clinton Administration's performance in fulfilling the trust responsibility toward tribes in the area of environmental and natural resources policy. Tribal interests play two unique roles in environmental policy. First, the government has a fiduciary obligation under federal Indian law, known as the trust responsibility, protect the tribes' property, treaty rights, and way of life. Tribes are directly and severely impacted by environmental degradation, and fulfilling this trust responsibility may require environmental protection above and beyond the standards set by statutory environmental law - standards that, because they are tailored to the needs of an industrialized society, are often minimalist in nature. Second, the vast majority of native nations retain aboriginal or treaty rights to land, water, and wildlife. These legal rights determine the allocation of increasingly scarce natural resources shared between the federal sovereign and the native sovereigns; such rights also create important constraints on the Executive's authority to regulate tribal activities affecting those resources.

   President Clinton's promises of April 29, 1994 provide a fair yardstick which to measure his performance.(4) Broadly stated, the President made a vow to respect the right of tribes to continue their way of life and to fulfill the trust obligations of the federal government. The statements implicitly contain a commitment to preserve the ecological context so integral to a tribal land-based way of life.(5) Indeed, many tribal leader's traveled to the summit with natural resource concerns at the forefront of their agenda,(6) and as should be expected, tribes have reminded the President of his April 29 promises in subsequent appeals for federal protection of their natural resources.(7)

   A complete assessment of the President's environmental record toward tribes would necessitate a survey of the overwhelming number of individual issues facing the several hundred tribes in this country, a task well beyond the scope. of this Article. Instead, this Article explores the Clinton Administration's current efforts to develop Indian policy on environmental matters at the highest administrative levels.(8) President Clinton signed a directive at the April 29 ceremony requiring all federal agencies and departments to implement their programs in a "sensitive manner respectful of tribal sovereignty."(9) The directive calls for agencies to deal with tribes on a "government-to-government" basis and to consult the affected tribes when federal actions impact tribal lands or resources.(10) Additionally, several agencies and departments have drafted internal guidance policies to deal with uniquely Indian concerns in the areas of environmental and natural resources management." Such policies may significantly shape the dealings between the tribes and federal agencies on environmental issues.

   This Article presents, in part II, the historical and legal background that frames modem executive policy in the area of Indian affairs. It explains the trust obligation and its role in the implementation of statutory mandates and agency programs. Part III focuses on the policy initiatives taken by the Clinton Administration. It examines the merits and drawbacks of developing agency Indian policies, describes the policies developed thus far, and offers a general critique of those policies.

   Part IV then selects one policy area - fish and wildlife conservation as it applies to tribal treaty rights - for a more in-depth focus on how the trust obligation operates in a statutory context. Wildlife use is a key element in maintaining a traditional way of life,(12) and protection of tribal harvest therefore represents one of the most vital trust obligations incumbent on the executive branch. At the same time, however, fulfilling the trust obligation often necessitates regulating non-Indian activities that drive species toward extinction. Such non-Indian interests often have a large economic stake in the status quo and carry strong political influence with the regulatory agencies. Consequently, in precisely the instance in which the trust responsibility is most needed to protect a tribe's traditional way of life, it is likely to be improperly subordinated to non-Indian interests. Part IV provides a factual context for this discussion by drawing upon recent regulatory actions by the National Marine Fisheries Service (NMFS) acting pursuant to the Endangered Species Act (ESA)(13) to curtail Indian treaty salmon harvest in the Columbia River Basin while allowing significant other non-Indian sources of mortality to continue much as they have in the past. The section discusses the issues involved in formulating a trust strategy for avoiding such outcomes under the ESA and then offers a brief critique of the policies recently developed by the U.S. Fish and Wildlife Service and NMFS in this area.

2. The Sovereign Trust Framework

   1. The Modern Role of the President Against an Historical Backdrop

      President Clinton's promise to fulfill the government's trust obligation to the tribes(14) is Shadowed by a political tapestry spanning two centuries. Throughout d& period, the President has assumed the primary responsibility for establishing relations between the federal government and Indian tribes. Historically, this was attributable to the nature of tribes as independent sovereigns. At the time of the Revolutionary War, the native nations and the United States established mutual relations on a government-to-government level through treaties. Because the Constitution places treaty-making power in the President,(15) the executive branch dominated Indian affairs. While treaties were not employed after 1871,(16) Presidents liberally used executive orders thereafter to establish Indian policy. Nineteenth-century Presidents also controlled Indian affairs through their constitutionally-derived power as commander-in-chief of the military forces.(17)

      In the modern era, the President maintains an active role in Indian affairs, but one that no longer flows from the treaty-making or war powers. Instead, the President interacts with tribes through the structure of the immense administrative state that grew up during this century. Because the conflicts that arise between the federal government and the more than five hundred federally recognized tribes cannot all be dealt with effectively at the congressional level, the executive branch is, by default, the branch that largely defines many of the terms of the federal government's relationship with the native nations.

      Conceptually, the President's modern role in Indian affairs includes three distinct components. The first largely a figurehead role deriving from the historical position of the President in Indian affairs. Presidential statements set the tone for national Indian policy. President Richard M. Nixon, for example, is credited with reversing decades of assimilationist and domineering policy toward tribes by announcing a new era of "Self-Determination" in which tribes would be recognized as sovereign entities.(18) Each of the succeeding administrations embraced this perspective, and President Clinton reaffirmed it on April 29, 1994 when he issued his directive on dealings with tribes.(19)

      The second aspect of the President's role has to do with his duties as "trustee" of Indian lands and resources. Nearly all Indian land is held in trust by the United States, with the beneficiary interest residing in the tribe or individual Indian allottee. Such trust title has given rise to an extensive land management role on the part of the Executive, in most cases performed by the Bureau of Indian Affairs (BIA) of the U.S. Department of Interior.(20) In general, the President's role in managing Indian lands and resources is shrinking as more tribes gain control of their own resources by establishing tribal management programs. President Clinton recently signed the Tribal Self-Governance Act of 1994,(21) a program that redirects federal funding from BIA to tribes, enabling tribal...