TRIBAL CASE STUDY: ENERGY INITIATIVES OF FOREST COUNTY POTAWATOMI COMMUNITY

• Jurisdiction: United States

Energy & Mineral Development in Indian Country
(Nov 2014)
CHAPTER 11B
TRIBAL CASE STUDY: ENERGY INITIATIVES OF FOREST COUNTY POTAWATOMI COMMUNITY
Nathan A. Karman ¹
Of Counsel
AterWynn LLP
Portland, Oregon
Former Attorney, Forest County Potawatomi Community

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NATHAN A. KARMAN is an attorney in the Forest County Potawatomi Community Legal Department. Mr. Karman's practice focuses on supporting the Community to advance its energy and environmental goals. His practice includes: overseeing all aspects of the Community's energy projects, from initial investigation and due diligence through commissioning and operations; supporting the Community's Natural Resources Department in its environmental protection activities, including activities pursuant to its Class I Air and Treatment in the Same Manner as a State authorities; ensuring the Community's compliance with applicable environmental laws; and working with state and federal agencies to support and advance the Community's energy and environmental actions and initiatives. Prior to joining the Community, Mr. Karman worked as an environmental and energy attorney at the law firm of Ater Wynne, LLP in Portland, Oregon.

Let us share our natural resources for the good of our People. Let us work for clean air and water and pray for the courage to stand up to those who would abuse our Mother Earth. Ttha ge na gom ge (So be it).

Bemwetek (James Thunder)

Excerpt from 2007 Class I Air Redesignation Public Hearing Prayer

The Forest County Potawatomi Community (the "Community"), a federally-recognized Indian tribe in Wisconsin, has a strong commitment to protecting and preserving the natural environment, both on its Reservation and throughout the world. Consistent with this commitment, the Community has established aggressive energy-related goals and undertaken significant actions to reduce its carbon footprint. These actions, which include a number of energy efficiency and renewable projects, have established the Community as a green energy leader in Indian Country and beyond. This presentation provides background regarding the Community, provides additional detail regarding the Community's particular energy actions and initiatives, and, based on the Community's experience and example, outlines considerations and strategies for others pursuing energy projects in Indian Country.

I. Overview of the Potawatomi Nation²

The Potawatomi are Algonquin, a European term based on linguistics, and Neshnabek, a Potawatomi word that means "original people." The Neshnabek originally settled along the shores of the Atlantic Ocean, near the mouth of the St. Lawrence River. Approximately a thousand years ago, the Neshnabek began moving toward the Great Lakes, ultimately living near the Straits of Mackinac. In the 1500s, the Neshnabek split into three groups: the Ojibwa (Chippewa), the Odawa (Ottawa), and the Bodewadmi (Potawatomi). This group was known as the Council of the Three Fires, and the Potawatomi were designated the "Keeper of the Fire."

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After the split, the Potawatomi moved south. Centuries ago, the Potawatomi people numbered more than 10,000 and occupied and controlled almost 30 million acres in the Great Lakes area. At the time of first contact by the Europeans, the Potawatomi people were living in what is today lower Michigan, Ohio, Indiana, Illinois, and Wisconsin. From 1789 to 1867, the Potawatomi, through a series of treaties entered into under duress, ceded all lands between Wisconsin and Ohio. The 1833 Treaty of Chicago alone ceded approximately five million acres of the Potawatomi estate, after which most of the Potawatomi people were forcibly removed from tribal lands. Many perished en route to new lands in the west, and the march became known "The Potawatomi Trail of Death,"

II. Overview of the Community

Some Potawatomi people rebelled against this forced exodus and either refused to relocate or returned to the Great Lakes Region, including lands in Wisconsin. Many settled in northern Wisconsin near the present day communities of Blackwell, Wabeno, Carter, and Crandon (also known as Stone Lake),³ and have lived in these areas since. For generations, these proud people lived in abject poverty, often without permanent residences and dependent upon the area's resources.

In 1913, based in large part on the efforts of Chief Charles Kishek and Reverend Eric Morstad, the United States Congress determined that these Wisconsin Potawatomi were due money promised to them in earlier treaties for their land cessions. Congress allocated money to be used to purchase and hold in trust lands in Wisconsin. The Congressional Act, in an attempt to assimilate and "civilize" the Indians, included a stipulation that the lands be no larger than a section and that no sections adjoin. A total of 11,786 acres of such lands were acquired by federal purchase. These lands, though recognized and administered as Indian lands, were placed in the name of the United States Government instead of being placed in the Community's name and held in trust by the federal government. This error was corrected in 1987 with the enactment of Senate Bill 1602, which declared the previously purchased lands "to be the Reservation of the Forest County Potawatomi Community of Wisconsin."

The Community, which has a current membership exceeding 1,400, is formally organized under the Indian Reorganization Act of 1934.⁴ The Community exercises governmental authority under a Constitution last adopted in 1982. In addition to the 11,786 acres of declared Reservation lands, the Community holds another approximately 1,000 acres of trust lands plus an additional 360 acres of Homestead lands in Forest County. The Community also has trust lands in other Wisconsin Counties, including Milwaukee where the Community does business as Potawatomi Bingo Casino and Potawatomi Hotel (which are jointly marketed as Potawatomi Hotel & Casino). Potawatomi Bingo Casino provides the vast majority of funding for the Community's tribal government operations and its success has allowed the Community to expand its governmental programs, departments, and services.

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III. The Community's Commitment to Environmental Protection

The Community, like many indigenous peoples, refers to the Earth as "Our Grandmother" or "Mother Earth," and perceives of the Earth itself as a living being. The Community also refers to Earth as Pumuk-kumiges, which means "laid out for us"--which the Community interprets as directing it to act as stewards over the natural resources provided. The proper respect and treatment of resources is required to "not only assure human safety in an unpredictable world, but also to guarantee balance and harmony in the world itself." To the Community, "nature and the place of humans within nature form[] a cycle of mutual interdependence."

Prior to the relatively recent advent of gaming revenue, this mutual interdependence kept Community members alive as generations of the Community suffered through extreme poverty. When, in the late 1970s, Exxon discovered a significant ore deposit nearby in Crandon, the Community, joined by the nearby Sokaogon Chippewa Community ("SCC"), began what would be an approximately 25 year fight against the proposed Crandon Mine. The matter was ultimately resolved when, in 2003, the Community and SCC purchased the land and associated mineral rights.

In connection with its opposition to the Crandon Mine, the Community resolved to seek Class I Redesignation pursuant to Section 164(e) of the Clean Air Act. The Clean Air Act establishes mandatory federal Class I areas (e.g., national parks, national wilderness areas). The Clean Air Act also allows states and tribes to redesignate lands to Class I, which provides a state or tribe with additional tools (e.g., lower increment; protection for Air Quality Related Values) to protect against the impacts of air pollution.

The Community first notified the U.S. Environmental Protection Agency ("EPA") of its intent to seek redesignation in 1993, submitting the formal application a year later. The States of Wisconsin and Michigan opposed. The Community and the State of Wisconsin resolved the dispute via an EPA-administered dispute resolution, culminating in a negotiated agreement regarding the scope of the Community's Class I rights. The State of Michigan instead sued to oppose, but the...