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Federal Indian Policy Law and the Environment

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Federal Indian Policy Law and the Environment Powered By Docstoc
					Federal Indian Policy, Law,
  and the Environment
        Connie Sue Martin
   Bullivant Houser Bailey PC
          (206) 521-6432
 Conniesue.martin@bullivant.com
    (revisions by David Tetta)
                 Overview
•   History of Federal Indian Policy
•   Sovereignty and Regulatory Authority
•   Treaty Rights
•   Case Study – Culverts Case
    – Tribal Fishing Rights in WA
      History of Federal Indian
                Policy
•   Colonial Period – 1820s
•   Indian Removal-Reservation System
•   Allotments and Assimilation
•   Tribal Reorganization
•   Termination and Relocation
•   Tribal Self-Determination
           Colonial to 1820

• Early Spanish legal opinions established
  principle of aboriginal right of occupancy –
  tribes were independent sovereign nations
  with right to land they occupied – ownership
  change legal only by consent or war.
• Constitution - Role of treaty making,
  regulating of tribal commerce limited to
  federal government
• Some state dealings with tribes despite
  Constitutional limits – caused later problems.
  1820-1850: Indian Removal
• Expansion of US population – 1830 decision to
  relocate Eastern tribes to unoccupied lands acquired
  via Louisiana Purchase.
   – Cherokees from Georgia to Oklahoma-Trail of Tears
• Marshall Trilogy Developed During This Time
   – Partial title “Aboriginal Right to Occupancy” could only be
     conveyed to Feds
   – Tribes not a Foreign State, but “Domestic Dependent
     Nations”.
   – Tribes a “distinct community” state law in Indian Country:
     “Can have no force.”
    1840-1871: Treaties and
      Reservation System
• Over Treaties 380 treaties by 1871,
  many during 1840s and 50s
• Concepts of Ceded Lands,
  Reservations
  – Reserved rights on Ceded Lands
• Stevens Treaties an example
          1887-1934
   Allotment and Assimilation
• General Allotment Act – Gave title of land
  parcels (80-160 acres) to individual tribal
  members. Land held in trust for 25 yrs (going
  on 100+).
• Most tribal lands declared surplus, many titles
  later lost through swindles. Total went from
  138 million in 1887 to 48 by 1934
  – Checkerboard ownership patterns on reservations
• 1924 Citizenship Act.
• Indian Schools - Carlisle
              1934-1953
         Tribal Reorganization
• 1928 Meriam Report - Allotment and
  assimilation a failure
• 1934 Indian Reorganization Act.
  –   Allotments stopped
  –   Trust obligations extended indefinitely
  –   Authorized return to the tribes of surplus lands
  –   Offered templates for organization of tribal
      governments
         1953-1968
  Termination and Relocation
• Congressional reports critical of reorganization efforts
• Relationship with more than 100 tribes terminated
• Large BIA program to pay Native Americans to move
  to cities and find work
• Public Law 280. CA, NE, MN, OR, WI, and AK.
   – State criminal jurisdiction in Indian country
   – Judicial decisions limited scope somewhat
       • Taxation of trust property
       • No general state regulatory power – can’t conflict with a treaty
• 1946-1978. Indian Claims Commission
        1968 to Present
    Tribal Self-Determination
• 1968 Indian Civil Rights Act.
  – Bill of Rights
  – PL 280 amended to allow states to give up
    authorities on tribal reservations.
• 1970, 1983 Presidential Statements
  reaffirming trust responsibility
• Other Congressional Actions
  – Contracting of BIA services to tribes
  – Amendments to environmental laws providing for
    tribal implementation
    Roles of Tribal Govt’s Today
•   Enforcement Agency
•   Regulatory/Permitting Agency
•   Coordination and Consultation
•   Trust Beneficiary
•   Property Owner
•   “Citizen”
       Source of Authority
• Tribal Sovereignty
• Statutory Authority
  – Tribal Law
  – State Law
  – Federal Law
• Reserved Rights
• Trust Responsibility
• Treaty Rights
         Tribal Sovereignty
• Tribes retain all aspects of their sovereignty
  except those withdrawn by Congress or
  inconsistent with overriding federal interests.
  Washington v. Confederated Tribes of Colville
  Reservation, 447 U.S. 134 (1980).
• Inherent authority to exercise sovereign powers
  to protect health and welfare of Tribal members
• Treaties, federal statutes and executive orders
  reserving rights of Tribes in lands, waters and
  natural resources
        Tribal Sovereignty
• State and federal statutes may provide
  role for Tribe
  – Mandatory coordination and consultation
  – Review and comment
• Government-to-Government
  Relationships
    Sovereignty and Factors Affecting
     Tribal Authority on Reservations
• Indian vs. non-Indian
• Civil vs. Criminal
• Fee Land vs. Trust Land
• Balancing tests, pre-emption, history, status,
  subject matter, consensual, and self-
  government.
• Montana – “direct effect on political integrity,
  economic security, or health and welfare of
  tribe.”
    Regulatory Authority Derived
        From Federal Law

• Safe Drinking Water Act (SDWA)
• Clean Water Act (CWA)
• Clean Air Act (CAA)
• Comprehensive Environmental Response,
  Liability and Compensation Act (CERCLA)
• Oil Pollution Act of 1990 (OPA)
         Treatment as State
           Requirements
• Proof that the Tribe is recognized by the
  Secretary of the Interior
• Proof that the Tribe has a governing body
  capable of carrying out substantial
  governmental powers over defined area
• Proof that the Tribe has jurisdiction over
  the program area and is capable of
  administering the program
  Example - Clean Water Act
• Development of water quality standards (“WQS”)
  provides foundation for enforceable pollution control
  measures
• Water quality standards promulgated by states and
  approved by EPA not legally enforceable on Indian
  reservation
• Federal or Tribal WQS needed to give force and effect
  to CWA on reservation
• More stringent Tribal WQSs may be imposed on off-
  reservation, upstream discharge point sources. City of
  Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996),
  cert. denied 118 S.Ct. 410 (1997)
 Natural Resource Damages
• CERCLA/SARA and OPA identify Tribe
  as Natural Resource Trustee
• Permit recovery by Tribes for injury to or
  loss of natural resources “belonging to,
  managed by, controlled by, or
  appertaining to” a Tribe, caused by
  release of hazardous substances or oil
  spill
           Trust Obligation

• Federal government holds title to
  significant portions of Reservation lands,
  in trust for the benefit of the Tribe
• Creates a fiduciary obligation owed by the
  federal government to the Tribe to protect
  or enhance Tribal assets (economic,
  natural, human or cultural)
              Trust Obligation

• Imposes fiduciary standards on the conduct of
  the Executive, carried out through executive
  agencies
   –   Act with care and loyalty
   –   Make trust property income productive
   –   Enforce reasonable claims on behalf of Indians
   –   Take affirmative actions to preserve trust property
• Any federal government action is subject to the
  United States’ fiduciary responsibility to Tribes.
  Nance v. EPA, 645 F.2d at 711 (9th Cir.), cert
  denied, 454 U.S. 1081 (1981)
Example - Northwest Sea Farms
 • Project proponent argued that Corps regulations did not
   authorize consideration of Tribal fishing rights;
 • Court held that “in carrying out its fiduciary duty, it is the
   government’s, and subsequently the Corps’,
   responsibility to ensure that Indian treaty rights are
   given full effect.”
 • “It is this fiduciary duty, rather than any express
   regulatory provision, which mandates that the Corps
   take treaty rights into consideration [when making
   permitting decisions].” 931 F. Supp. at 1520
             Treaty Rights
• “To the great advantage of the people of the
  United States. . . Congress chose treaties
  rather than conquests as the means to acquire
  vast Indian lands.” United States v.
  Washington, 384 F. Supp. 312, 330 (W.D.
  Wash. 1974)
• A treaty between the United States and an
  Indian tribe is essentially a contract between
  two sovereign nations. Washington v.
  Washington State Commercial Passenger
  Fishing Vessel Ass’n, 443 U.S. 658, 675, 99 S.
  Ct. 3055, 61 L.Ed.2d 823 (1979).
             Treaty Rights
• Treaties did not give rights to Tribes, they
  preserved rights the Tribes already possessed.
  In exchange for ceding land and resources and
  relocating to reservations, Tribes were reserved
  the right to hunt, fish, farm, etc. in designated
  locations.
• Only Congress has the authority to modify or
  abrogate the terms of Indian treaties. United
  States v. Eberhardt, 789 F.2d 1354, 1361 (9th
  Cir. 1986)
         Reserved Rights
• Treaties may reserve to Tribes certain
  rights to the use or taking of land, water,
  and other resources (e.g., fish, elk,
  plants)
• Executive Orders or statutes also may
  reserve to Tribes certain rights to the use
  or taking of land, water, and other
  resources
     Reserved Water Rights

• “The establishment of an Indian Reservation
  implies a right to sufficient unappropriated
  water to accomplish its purpose.” Winters v.
  United States, 207 U.S. 564 (1908)
• Priority of water right for aboriginal uses is
  “time immemorial.” U.S. v. Adair, 723 F.2d
  1394 (9th Cir. 1983)
• Priority for other uses is date of Treaty,
  statute or Executive Order establishing
  reservation. Winters v. United States, 207
  U.S. 564 (1908)
     Reserved Water Rights
• Reserved water rights are not subject to
  abandonment or forfeiture for non-use.
• Tribe is entitled to use water for any lawful
  purpose. U.S. v. Anderson, 736 F.2d 1358 (9th
  Cir. 1984)
• Although typically characterized in terms of
  rights to surface water, federal reserved water
  rights apply to ground water to the extent
  surface water is inadequate to fulfill the purpose
  of the reservation. In re General Adjudication
  of All Rights to Use Water in the Gila River
  System and Source, 989 P.2d 739 (Ariz. 1999)
           Stevens Treaties
• In less than one year between 1854 and 1855
  Isaac I. Stevens “negotiated” eleven different
  treaties, each with several tribes, at various
  places distant from each other.
  – Written in English
  – Translated by a U.S. interpreter using Chinook
    Jargon, which was unknown to some Tribal
    Representatives
  – Jargon had only about 300 words, capable of
    conveying only rudimentary concepts
     Reserved Fishing Rights

• Most of the treaties negotiated by
  Stephens contain this language:
  – The right of taking fish, at all usual and
    accustomed grounds and stations, is
    further secured to said Indians, in common
    with all citizens of the territory, and of
    erecting temporary houses for the
    purposes of curing. . .
     Reserved Fishing Rights
• Treaty Tribes entitled to half of harvestable surplus of
  salmon and steelhead in Western Washington under
  1850s treaties U.S. v. Washington, 520 F.2d 676 (9th
  Cir. 1975) (Boldt I)
• Treaty rights extend to protection of fisheries habitat.
  U.S. v. Washington, 590 F. Supp. 187 (W.D. Wash.
  1980) (Boldt II)
• Treaty rights may require certain instream flow be
  maintained outside the boundaries of an Indian
  reservation for the protection of fish subject to harvest
  under a treaty right. Kittitas Reclamation District v.
  Sunnyside Irrigation District, 763 F.2d 1032 (9th Cir.
  1982
         The Culvert Case
• Part of a long running dispute captioned United
  States v. Washington, originally filed in 1970,
  between Indian tribes and the State of
  Washington concerning Indian treaty rights
  under the Stevens Treaties
• The same case that spawned the historic Boldt
  and Boldt II decisions, named for the federal
  district court judge who decided them, Judge
  George Boldt.
         The Culvert Case
• Boldt (1974): The fishing clause in six of
  the Stevens Treaties entitled the tribes to
  a specific allocation of the salmon and
  steelhead trout in the treaty area.
• On appeal, Supreme Court affirmed,
  holding that the tribes were entitled to the
  lesser of 50% of the “harvestable” fish or
  a sufficient quantity to provide them with
  a “moderate standard of living.”
         The Culvert Case
• Boldt II (1980): inherent in the tribes’
  treaty right to fish was the right to have
  treaty fish protected from environmental
  degradation; imposed a duty on the state
  to refrain from degrading fish habitat to an
  extent that would deprive the tribes of
  their “moderate living needs”
• Vacated by 9th Circuit on appeal
         The Culverts Case
• Ninth Circuit affirmed the conclusion that the
  state and tribes each had an obligation “to take
  reasonable steps commensurate with their
  resources and abilities to preserve and
  enhance the fishery when their projects
  threaten then-existing levels,”
• Declaratory judgment not appropriate yet
  because court was not presented with specific
  act or omission of state’s that violated duty of
  preservation and enhancement of the fishery
  for which a remedy could be fashioned
        The Culvert Case
• In 2001, the tribes filed a Request for
  Determination, seeking a determination
  that state was violating treaties by
  maintaining culverts that blocked or
  hindered fish passage which left the
  tribes unable to sustain themselves by
  fishing
• United States joined the proceeding,
  supporting the position of the tribes.
           The Culvert Case
• State’s position:
   – no evidence that blocked culverts diminished the
     number of fish that were available to the tribes
   – tribes were seeking “an implied servitude” that would
     burden all property – public and private – with a
     prohibition against impairing the Tribes’ ability to
     earn a ‘moderate living’ from fishing”
   – “The Tribes’ claim, carried to its logical conclusion,
     [will] give them a right to … control all future land
     management decisions in the United States v.
     Washington case area.”
            The Culvert Case
• The decision on liability (2007):
   – State’s own motion conceded that many of the culverts owned
     or maintained by the state block fish passage.
   – Tribes had “produced evidence of greatly diminished fish runs,”
     and while there may be other contributing causes, “the
     conclusion is inescapable … those blocked culverts are
     responsible for the diminishment.”
   – Fundamental question: Does the tribes’ treaty-based right of
     taking fish impose a duty upon the state to refrain from
     diminishing fish runs by constructing or maintaining culverts
     that block fish passage?
          The Culvert Case
• The decision on liability (2007):
  – Answer: Yes.
     • Duty does not create a broad equitable
       environmental servitude, or affirmative obligation
       to take all possible steps to protect fish runs.
     • Duty is “a narrow directive to refrain from
       impeding fish in one specific manner” that “arises
       directly from the right of taking fish that was
       assured to the Tribes in the Treaties …”
           The Culvert Case

• The decision on liability (2007):
   – State currently owns and operates 1200 culverts that
     violate its duty, further proceedings required “to
     determine an appropriate remedy.”
• Potential far-reaching impacts
   – Counties are responsible for about 54,000 miles of
     roadway, and cities are responsible for an additional
     16,000 miles.
   – Privately-owned roads with culverts may lie between
     upstream, state-owned culverts and the sea.
             The Culvert Case
• Inevitable that local governments and private
  landowners will eventually feel the impact of the
  decision.
   – Local governments may find themselves required to clean out,
     repair, or replace culverts that block fish access as condition of
     state/federal transportation funding
   – Proponents of new developments that require state or federal
     action in the form of permitting decisions may be forced to
     address fish passage to obtain permits
   – Road design standards, enforced at the local level by building
     inspectors, could be modified to require fish-friendly culverts to
     prevent future fish passage issue
        The Culvert Case
• Court sent the parties to settlement
  negotiations after the summary judgment
  order to work out a remedy
• Parties were unsuccessful in settlement
  negotiations, unable to agree on a
  timeframe for repairing the 1200 culverts
  presently blocking culverts or status of
  future culverts
• Remedy trial in 2009
              Culverts Case
• Fundamental dispute: How to right the wrong
  that the Court concluded in 2007 was being
  done?
  – State doesn’t have enough money to complete
    culvert repair and habitat restoration in a time
    frame that is satisfactory to the treaty tribes; Tribes
    would agree to 20 years, under WSDOT’s efforts it
    will take 50 – 80 years
  – Is it a federal court’s job to tell a state how to
    prioritize its spending?
             Culverts Case
• The issue for the Court in the remedy trial:
  should the State be compelled, by a
  mandatory injunctive order, to correct the
  culverts problem (existing culverts that block
  fish passage, and culverts to be designed
  and built in the future); or should the Court
  should stay out of the dispute and let the
  State conduct culvert remediation as part of
  its ongoing, long-term salmon restoration
  efforts?
                Summary
• Tribal Resources
  – More than just water and fish!
• Role of the Tribe
  – Regulator, permitting, Trustee, coordination
    and consultation, citizen, property owner
• Source of Authority
  – Statute, trust obligation, treaty
• Questions?

				
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