Understanding Federal Indian Law & Policy

“Indians 101” Understanding the Basics of Federal Indian Law & Policy Society of American Indian Government Employees (SAIGE) 16th Annual National Training Program Honoring Our Nations: Building Strength Through Understanding Tuesday June 11, 2019 : Niagara Falls, NY Luke Jones, Sr. Management and Program Analyst (jones.luke@epa.gov) U.S. Environmental Protection Agency - American Indian Environmental Office

Why Study the Federal-Tribal-State Relationship? Layer Cake Federalism is based on a clear delineation of authority and programs among the national, state, and local governments. Marble Cake Federalism is based on a pragmatic mixing of authority and programs among the national, state, and local governments. What’s Missing? Traditional models of American Federalism, like the ones presented above, ignore tribal governments. Most federal and state government officials first encounter tribes through jurisdictional conflict or claims that the federal trust is not being met. Understanding tribal jurisdiction and the federal trust may help improve public sector management and implementation of federal programs.

Native Land: 1492

Native Land Transfers: 1775 – 1819

Native Lands 1997 - present

Native Lands - Future ?

Session Overview • History of Federal Indian Policy • Introduction to the Federal-Tribal Trust Relationship • Introduction to Jurisdictional Issues • EPA’s Approach to Program Implementation in Indian Country

History of Federal Indian Policy • Series of dramatic reversals, each with specific consequences • Not all groups experienced the same effects from each policy period • Policy Impacts – the Bottom Line: • Dramatic reduction to land and natural resource base • Reduced population and traditional forms of governance • More than half of all Indian people today live off-reservation, where they constitute the poorest of ethnic minority categories • Tribes today potentially control substantial resources, but • Economic development still depends largely on transfers

Six Main Federal Policy Periods • European Arrival, Colonies (1492-1788) • Removal and Relocation (1789-1849) • Pacification and Reservation (1849-1887) • Allotment and Assimilation (1887-1934) • Reorganization (1934-1948) • Termination (1948-1972) • Self-Determination (1972 – present)

Establishing Federal Role (1789-1828) • US constitution ratified, explicitly assigns Federal authority over Indian Affairs (1789) • Implementation of federal authority through series of Trade and Intercourse Acts (first in 1790) • Louisiana Purchase (1803) • Johnson v. McIntosh: “discovery doctrine” & exclusive right to extinguish "right of occupancy" of the indigenous occupants to Federal government (1823) • Cherokee Constitution adopted (1827)

“Policy and economy point very strongly to the expediency of being upon good terms with the Indians, and the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beasts of the Forest which will return as soon as the pursuit is at an end and fall perhaps on those that are left there; when the gradual extension of our Settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho’ they differ in shape. In a word there is nothing to be obtained by an Indian War but the Soil they live on and this can be had by purchase at less expense, and without that bloodshed.” George Washington, 1783

Removal (1828-1849) • Remove Indian people from desirable settlement areas and valuable resource bases, in the name of the “public interest” (Andrew Jackson) • Indian Removal Act (1830) • US Supreme Court decides “Cherokee” cases, clarifying tribal status as “domestic dependent nations” and defining federal trust responsibility (1831-1832) • Nearly 20,000 people forcibly removed from southeastern woodlands to the Indian Territory (Oklahoma) on “Trail of Tears” (1838)

“Treaties were expedients by which ignorant, intractable, and savage people were induced without bloodshed to yield up what civilized peoples had a right to possess by virtue of that command of the Creator delivered to man upon his formation—be fruitful, multiply, and replenish the earth, and subdue it.” Georgia Governor George Gilmer, 1830

"That those tribes can not exist surrounded by our settlements and in continual contact with our citizens is certain. They have neither the intelligence, the industry, the moral habits, nor the desire of improvement which are essential to any favorable change in their condition. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear." Andrew Jackson, 1833

Pacification & Reservation (1849-1871) • Protect encroaching settlers from Indian people attempting to retain their land, and obtain land cessions for non-Indian settlement • Period of most active treaty-making • Transfer of Indian Affairs from War Department to Interior Department • Grant’s Post-Civil War “Peace Policy” – missionary control • Congressional Treaty-Making authority rescinded (1871), Executive Order and Statutory recognition of tribal status continues

Allotment & Assimilation (1870-1934) • Make remaining Indian lands available to non-Indian settlers and assimilate Indian people into “Mainstream” America • General Allotment Act (Dawes Act) of 1887: • Reservations ranked according to “readiness” (i.e., desirability), so some never allotted • 160 acres to each household head, smaller amounts to minors; “surplus” placed in public domain and either sold to railroads and settlers or placed under control of the Agriculture or Interior Departments • Indian allotments held in trust for 20-year period, while allottees expected to acquire “skills” • 100 million acres of Indian land lost to non-Indians through “surplus” sales or tax forfeitures between 1887-1934 • “Checkerboard” land holdings (and land use planning, development, and public safety jurisdiction difficulties) direct result of allotment • 1879-1920s Boarding School era • US Supreme Court Winters ruling (1906) regarding tribal water rights • Indians granted US citizenship as reward for WWI valor (1924) • Brookings Institute (“Meriam”) policy assessment (1928)

“Kill the Indian and save the man” Capt. Richard H. Pratt on the Education of Native Americans Founder and Superintendent of Carlisle Indian School Tom Torlino (Navajo) Carlisle, 1882 Tom Torlino three years later

Apache children upon arrival at Carlisle

Four months later

Carlisle Indian School

Reorganization (1934-1948) • Indian Reorganization Act passed, beginning “Indian New Deal” (1934) • Johnson-O’Malley Act (Education Reform) (1936) • Reconstituted tribal governing bodies • Wider distribution of federal programs • Reverse assimilation trends, especially through educational reforms • Protect tribal natural resource base

Termination (1948-1972) • End trusteeship relationship & assimilate tribal populations • Reduce Federal cost in wake of WWII debts; break up remaining tribal land base; relocate reservation residents • Over 100 tribes terminated • Reallocate Federal authority away from BIA and, in some instances, to State governments • US Land Claims Commission Established (1948) • Hoover Commission Report, Policy Assessment (1949) • House Res 108, adoption of “Termination” as policy (1953) • PL 280 unilaterally assigns state civil and criminal jurisdiction (1953) • Leasing Act (1955) • Alaskan Native Claims Settlement Act (1971)

Self-Determination (1972-Present) • Acknowledge remaining elements of tribal sovereignty, and tribes’ right to control their own destiny; need for capacity-building through educational support, natural resource protection authority, and economic restructuring

Self-Determination (continued) • Indian Self-Determination and Education Act (1972) • “Boldt-1” Decision; Office of Native American Programs established (1974); “Boldt-2” decision (1980) • American Indian Policy Review Commission established (1975) • American Indian Religious Freedom Act (1978) • Menominee Trustee status restored (1978) • Indian Tribal Government Tax Status Act (1982) • Reagan (1983), Bush (1991), Clinton (1994), Bush (2004), Obama (2009) Policy Statements

Self-Determination (continued) • Indian Environmental Regulatory Enhancement Act authorizes grant funding of up to 80% of planning, development and implementation costs for regulatory improvements (1990) • Native American Graves Protection and Repatriation Act (1990) • Executive Order on Environmental Justice 12898 applies to Native American Programs (1994) • Native American Sacred Sites Executive Order 13007 authorizes site access, when feasible (1996) • Tribal Colleges and Universities Executive Order 13021 provides 5-year planning guidance to agencies (1996) • Executive Order 13175 - Consultation and Coordination With Indian Tribal Governments (2000)

“But most importantly, we have turned from the question of whether the Federal Government has a responsibility to Indians to the question of how that responsibility can best be furthered.” President Nixon, Special Message on Indian Affairs: July 8, 1970

Tribal Sovereignty • Tribes choose whatever form of government best suits their practical and cultural needs • Tribes can legislate generally, civil and criminal law • Tribal governments are immune from suits (as are state governments and federal government) • Tribes have power to determine membership

Tribal Government Finances • Tax revenues generally not available to fund tribal government operations. • Gaming profits restricted to a few tribes. • Land held “in trust” leads to difficulty in securing credit for long-term capital investment. • Without other sources for operations or capital improvements, tribes must rely heavily on intergovernmental fund transfers. • Fund transfers are notoriously unstable. They provide a poor planning basis. • With uncertain long-term support, tribes have difficulty recruiting and retaining staff, improving infrastructure, and attracting investment for economic development initiatives.

Introduction to Federal-Trust Responsibility • The US-tribal relationship is based on the doctrine of trust responsibility. • Supreme Court: trust responsibility "has long dominated the government's dealings with Indians. . . [there is] the undisputed existence of a general trust relationship between the United States and the Indian people." United States v. Mitchell, 463 U.S. 206, 225 (1983). • The trust doctrine is a fundamental concept in federal Indian law and a motivating force. Virtually every law within the past 30 years involving Indians and tribes has cited to the federal government's trust obligations. • e.g., the Indian Tribal Justice Support Act of 1993, 25 U.S.C. Secs. 3601-3631, designed to support the work of tribal courts, states as its first two congressional findings: • (1) There is a government-to-government relationship between the United States and each Indian tribe; [and] • (2) the United States has a trust responsibility to each tribal government that includes the protection of the sovereignty of each tribal government."

Treaties • A Treaty is a legal agreement between sovereign governments • Importance • Establish a pattern of legal and political interaction between two sovereign nations • Treaties form the foundation of federal Indian law • Based on consultation and negotiation

Origin of the Trust Doctrine: 400 Treaties • Between 1787 and 1871: the U.S. entered into nearly 400 treaties with Indian tribes. • Treaties transferred vast amounts of land from tribal governments to the US government. In exchange, tribes received a set of promises. Almost every treaty tribe was promised that its sovereignty, remaining lands, and people would be protected by the US, and many treaties expressly require the US to provide food, clothing, and shelter. • Supreme Court has held that these promises created a unique bond between the US and each treaty tribe, imposing on the federal government "moral obligations of the highest responsibility and trust." Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).

Statutes Can Create Trust Duties, Not Just Treaties • A treaty is a formal exchange of obligations, and each party is required to fulfill its end of the bargain. It is not as easy to see how a statute can create a trust duty, however. • In 1871, Congress passed a law ending all treaty making with Indian tribes. During the past 130 years, Congress has regulated Indian and tribes by passing laws. Supreme Court has recognized that these laws can create trust responsibilities. This is true for two reasons: • Statutes often are vehicles by which Congress creates programs and services needed to fulfill treaty obligations. • Many of these laws give federal agencies the power to control and manage tribal land and resources. The Supreme Court recognized in United States v. Mitchell, 463 U.S. 206 (1983), that when this arrangement occurs, the agency then has the fiduciary duty to manage tribal property wisely and in the tribe's best interests.`

Enforcement of the Federal Trust Duty • In order for the tribe to win a lawsuit alleging a violation of the trust responsibility, there must be a clear and specific obligation to enforce. • The more specific the obligation, the higher the duty of care. "Where the Federal Government takes on or has control or supervision over tribal monies or properties, a fiduciary relationship normally exists with respect to such monies or properties," US v. Mitchell, 445 U.S. 535 (1980) • Tribes can enforce their rights under the doctrine of trust responsibility, and in appropriate cases may obtain damages and/or injunctive relief if those rights have been or are being violated. • A "fiduciary" relationship imposes the highest degree of trust the law recognizes, similar to the relationship between a guardian and a ward. It requires utmost loyalty.

EPA’s Trust Responsibilities • General, Broad Duty: protect tribal self-government (sovereignty), economic prosperity, and interests. This broad duty exists separate and apart from any individual duties expressly contained in treaties and statutes. • Specific, Narrow Duty: fulfill specific promises and tasks set forth in treaties and statutes. Federal agencies have a legal duty to undertake those activities and tasks delegated to them by Congress. • EPA statutes

The Reserved Rights Doctrine • The Supreme Court explained in United States v. Winans (1905) 198 U.S. 371, a fishing rights case, that an Indian treaty is not "a grant of rights to the Indians, but a grant of rights from them." Three years later in Winters v. United States, 207 U.S. 564 (1908), the Supreme Court applied this principle in a water rights case. Together, these cases set forth the fundamental concept known as the reserved rights doctrine.

BREAK Next section deals with tribal jurisdiction

What is Indian Country? Indian country is defined in federal law to mean reservations, allotments and dependent Indian communities • There are 562 federally-recognized tribal governments (~229 in AK). • Land base totals over 70 million acres, reservations vary in size from less than 10 acres to more than 14 million acres. • There are over 2.4 million American Indian/Alaska Natives.1 • Poverty and unemployment rates are 3 times greater than the national average. • 36% of the population over the age of 25 do not have high school diplomas compared to 19.6% nationally.1 1 based on 2000 U.S. Census

Indian Land (Illustrated)

Effects of Allotment 1855 Treaty From 6.4 mil. to 500K acres 1863 Treaty 172K acres

Key Concepts • Non-Indian Fee Land In Indian Country • Some States want to implement environmental programs for non-Indian fee lands in Indian country • Alaska • No “Indian Country” In AK (except Metlakatla Indian Community, Annette Island) • Oklahoma • Trust and restricted fee allotments are “Indian country” • Generally, Tribal fee lands outside Indian country are under State authority (special circumstances apply) • Ceded Territory • Lands transferred from tribes to the federal government by treaty outside reservation boundaries. • While tribes no longer hold title to these lands, they may retain usufructuary rights within ceded territories. • These usufructuary rights may include rights to hunt, fish, harvest traditional food, and gather medicinal plants

Direct Implementation by EPA In Indian Country • Generally, States do not have authority in Indian country • EPA must “implement directly Federal environmental programs required or authorized by law in the absence of an acceptable tribal program.” • FY 2001 Approp. Bill; P.L. 106-377, 114 Stat. 1441 (2000)

Tribal Environmental Regulatory Authority • Treatment in a manner similar to a state (“TAS”) • Treatment of tribes varies under different statutes • EPA can authorize tribal programs under: - Safe Drinking Water Act (SDWA) - Clean Air Act (CAA) - Superfund (CERCLA) - Clean Water Act (CWA) • Tribes have a major role in TSCA, FIFRA and EPCRA • Supreme Court's pivotal Montana Test to determine whether tribal regulatory powers extended to nonmembers' fee lands activities: (1) is there a "consensual relationship" between the nonmember and the tribe; or (2) whether the nonmember's conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

EPA Indian Policy (1984) EPA was the first federal agency to adopt a formal Indian Policy Guiding Principles 1) Work proactively and directly with Indian tribes (“govt.-to-govt.”). 2) Recognize the sovereignty of tribal governments to set standards, make policy decisions, and manage reservation programs. 3) Encourage and assist tribes to take regulatory and program management responsibilities for reservation lands.

EPA Indian Policy (1984) EPA was the first federal agency to adopt a formal Indian Policy Guiding Principles (cont) 4) Identify and remove existing legal and procedural impediments to working effectively with tribes 5) Ensure that tribal concerns and interests are considered whenever actions may affect reservation environments. 6) Encourage cooperation between tribal, state, and local governments.

EPA Indian Policy (1984) EPA was the first federal agency to adopt a formal Indian Policy Guiding Principles (cont) 7) Enlist other federal agencies with related responsibilities on Indian reservations to support cooperative efforts. 8) Ensure compliance with environmental statutes and regulations on Indian reservations. 9) Incorporate these principles into planning and management activities, and ongoing policy and regulation development processes.

Indian Environmental General Assistance Program Act 1992 (f) Expenditure of General Assistance Any general assistance under this section shall be expended for the purpose of planning, developing, and establishing the capability to implement programs administered by the Environmental Protection Agency and specified in the assistance agreement.

Understanding Federal Indian Law & Policy