Federal Indian Policy, Law, and the Environment

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

1887-1934Allotment 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

1934-1953Tribal 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

1953-1968Termination 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 PresentTribal 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?

Federal Indian Policy, Law, and the Environment