TABLE OF CONTENTS

Chapter I. Introduction and Welcome

Chapter II. Historical Relationships

Chapter III. American Indian and Alaskan Native Tribal Governments

Chapter IV. Environmental Regulation in Indian Country

Chapter V. Selected Authorities and Programs

CHAPTER I.

NATIVE AMERICAN ISSUES: A BRIEF OVERVIEW

I. Introduction and Welcome (5 minutes)

II. Historical Relationships between DoD and Native Americans (Lee Foster, DoA, 10 minutes)

III. American Indian and Alaskan Native Tribal Governments (Liz Homer, DoI, 50 minutes)

A. Historical Overview: Federal Indian Relationship with Tribal Governments

1. History of Federal-Tribal Relations

a. Pre-Constitutional Policy (1532-1789)
b. The Formative Years(1789-1871)
c. The Era Of Allotment And Assimilation (1871-1928)
d. Indian Reorganization (1928-1945)
e. The Termination Era (1945-1961)
f. The "Self-Determination" Era (1961-Present)

2. Treaty Rights

3. Federal Trust Responsibility

a. Origins Of The Trust Relationship
b. Federal Recognition Of The Trust Relationship
c. Modern Consequences Of The Trust Responsibility
d. Interior Department Review And Approval Of Tribal Actions
e. Conclusion

B. Modern Tribal Governments

1. Tribal Sovereignty

a. The Doctrine Of Tribal Sovereignty
b. Fundamental Powers Of Indian Tribes

2. Forms And Structures Of Tribal Governments

3. Tribal Government Jurisdiction

a. Indian Country (18 U. S.C. � 1151) -- Criminal, Civil And Regulatory Jurisdiction
b. Types of Lands in Indian Country Subject to Tribal Jurisdiction

i. Reservations
ii. Dependent Indian Communities
iii. Allotments
iv. Other Trust Lands

c. Other Types of Indian Property Interests (Limited Tribal Jurisdiction)

i. Treaty Rights
ii. Fee Lands
iii. Ceded Territories
iv. Usual and Customary Usage/Rights
v. Alaskan Native Lands

C. Approaches to the Government-to-Government Relationship

1. Forms Of Government-To-Government Agreements

a. 638 Contracts
b. Self-Governance Compacts
c. Procurement Contracts
d. Other Agreements (e.g., Cooperative Agreements, Grants, Memoranda of Understanding, Memoranda of Agreement, Protocol Agreements)

2. Protocols For Government-To-Government Consultations

IV. Environmental Regulation in Indian Country (Elizabeth Bell, EPA, 25 minutes)

A. Over-view of the EPA Policy for the Administration of Environmental Programs on Indian Reservations

B. Delegation of Federal Authority/Authorization of Tribal Programs Under Federal Environmental Statutes

1. Statutes With Express "Treatment As A State" Language

2. Examples of Statutes Without Express Treatment As A State Language

3. Challenges To These Programs From State And Local Governments And Non-Indian Residents In And Adjacent To Indian Country

C. Environmental Regulation in Indian Country Under Exercises of Authority Under Federal And Tribal Law

D. Direct Federal Implementation of Federal Environmental Statutes

E. Building a Government-to-Government Relationship and Strengthening Communications

1. EPA Policy For The Administration Of Environmental Programs On Indian Reservations (Indian Policy)

2. Tribal Operations Committee

3. Tribal/EPA Environmental Agreements

4. EPA Region 8 Policy For Environmental Protection In Indian Country

V. Selected Executive Orders, Statutes, Court Decisions, and Agency Programs

A. Executive Orders And Presidential Memoranda

1. Presidential Memorandum On Government-To-Government Relations With Native American Tribal Governments

2. Executive Order And Memorandum On Environmental Justice

3. Executive Order On Sacred Sites

B. Statutes

1. General Authorities

2. Authorities Specific To Native Americans

3. Related Cultural Resource Statues

C. Summaries of Court Decisions

1. The Marshall Trilogy

2. The Trust Relationship

3. Treaties

4. Tribal Authority

D. Tribal Operations in Selected Federal Department/Agencies

1. Department Of Defense

2. Environmental Protection Agency

3. Department Of Interior

4. White House Domestic Policy Council

5. White House Council On Environmental Quality

6. Department Of Justice

7. Department Of Health And Human Services (ANA, IHS)

8. Department Of Agriculture

CHAPTER II.

HISTORICAL RELATIONSHIPS

Historical Relationships between DoD and Native Americans

Information Briefing for the
Deputy Under Secretary of Defense (Environmental Security)
December 15, 1997

Lee Foster
Native American Program Coordinator
U.S. Army Environmental Center

American Revolution and Early Federal Period
(1775-1800)

The decision in 1784 to place the administration of Indian affairs under the War Department defined the relationship of the new republic with Indian tribes.

U.S. Expansion
(1800-1850)

Increasing pressure was placed on Indian teritory to accommodate the pattern of new U.S. settlement

Froniter Army and Indian Wars
(1850-1860)

By the end of this period, the military approach dominated federal-Indian relations.

Indian Wars and the Peace Policy
(1860-1886)

Increasingly, the "Indian problem" was viewed less as a military issue and more of an issue of social policy.

American Indian Participation in World War I

In 1924, citizenship was extended to all American Indians, in part because of public appreciation for the extent of Indian service in the U.S. Army during World War I.

American Indian Participation in World War II

American Indians served with distinction between 1941 and 1945 in both the European and Pacific theaters of war.

American Indian Service in the Military
(1950-Present)

American Indians continued their unparalleled tradition of service to the Nation after World War I.

CHAPTER III.

AMERICAN INDIAN AND ALASKAN NATIVE TRIBAL GOVERNMENTS

A. Historical Overview: Federal Indian Relationship with Tribal Governments

1. History of Federal-Tribal Relations

History is the essential foundation for an understanding of American Indian law and policy. Indian policy is seen by many in the United States as an aberration: how is it that 2-1/2 percent of all land in the country is set aside for, and governed by, Indians? Isn't that racism in reverse? Isn't that segregation? These and other modern Indian issues cannot be analyzed properly without an appreciation of history. Many ancient statutes -- enacted, for example, in 1790, 1817, 1885, and 1887 -- control major Indian issues today. Numerous Indian treaties more than 100 years old are at issue in pending litigation, thus an understanding of the history of federal Indian policy can help resolve modern day issues.

Federal policy is central to Indian affairs because Congress has "plenary" (broad) power over Indians, including the authority to decide who is, or is not, recognized officially as an Indian. For two hundred years, Congress has vacillated between two conflicting themes: self-government for tribes and assimilation of the reservations into the existing framework of state and local government. The tension between these themes likely will remain.

a. Pre-Constitutional Policy (1532-1789)

During the 17th century, the administrators of some British and Spanish colonies in the Western Hemisphere began negotiating treaties with Indian tribes. Such actions -- rationalized by theological, philosophical, and practical arguments -- had the effect of according tribes a sovereign status equivalent to that of the colonial governments with which they were dealing.

To the extent that treaties involved cessions of Indian territory or resolved boundary disputes, they also affirmed recognition by the colonial powers of tribal ownership of the lands Indians used and occupied. Shortly before the middle of the 18th century, the British Crown appropriated to itself some of the administrative responsibilities in dealing with tribes that it previously had allowed the colonial governments to exercise, including the practice of negotiating with the Indians through treaties.

The Articles of Confederation, effective in 1781, gave the federal government "sole and exclusive" authority over Indian affairs, "provided that the legislative right of any State within its own limits [sic] be not infringed or violated."

b. The Formative Years (1789-1871)

The shape of federal Indian law and policy was determined by early comprehensive federal legislation and by three leading court decisions. Those opinions, written by Chief Justice John Marshall and referred to as the Marshall Trilogy, are Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), and, perhaps most importantly, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832).

Federal Power

The new Constitution lodged broad power in Congress under the Indian Commerce Clause, article 1, section 8, clause 3: "The Congress shall have Power... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (emphasis supplied). Thus state control over Indians was subordinated to federal power.

The Trade And Intercourse Acts And Tribal Property Rights

Congress immediately implemented its power by establishing a comprehensive program regulating Indian affairs. The Indian Trade and Intercourse Act of 1790 (often referred to as the "Nonintercourse Act") established the basic features of federal Indian policy. The Act brought virtually all interaction between Indians and non-Indians under federal control, including regulation of commercial trade with the Indians, penalties for violations by traders, and criminal provisions for murder and other crimes against Indians in Indian Country.

One of the Act's crucial provisions, which is the basis of the current eastern land claims, is the requirement that Indian land cannot be sold by the tribe without federal approval. This codified the judicial concept applied before the Act was passed. In the first case in the Marshall Trilogy, Johnson v. M'Intosh, the Supreme Court concluded that discovery gave the United States the exclusive right to extinguish the original tribal right of possession. The Indian right of possession, which is an unusual but acknowledged form of land ownership in the Anglo-American system of property law, is referred to today as "aboriginal" or "original Indian" title. Congress may extinguish aboriginal title without compensation. On the other hand, a taking must be compensated pursuant to the fifth amendment when title is "recognized" by treaty or statute.

Treaties With Indian Tribes

Until 1871, Congress dealt with individual tribes by formal treaties. Early cases clarifying these treaties established some of the basic elements of federal Indian law:

The trust relationship: Indian tribes are not foreign nations, but constitute "distinct political" communities "that may, more correctly, perhaps, be denominated domestic, dependent nations" whose "relation to the United States resembles that of a ward to his guardian." This language, in Cherokee Nation v. Georgia, gave birth to the doctrine of federal trusteeship in Indian affairs.

Tribal governmental status: Indian tribes are sovereigns, that is, governments, and state law does not apply within reservation boundaries without congressional consent.

Reserved rights doctrine: Tribal rights, including rights to land and to self-government, are not granted to the tribe by the United States. Rather, under the reserved rights doctrine, tribes retained ("reserved") such rights as part of their status as prior and continuing sovereigns.

Canons of construction: Courts generally have adopted fundamental rules and principles that govern the interpretation of written documents such as treaties. In legal terminology, these rules and principles are known as "canons of construction." Those that pertain specifically to Indian law generally have been developed to the benefit of tribes. For example, the canons provide that treaties are to be construed broadly in determining the existence of Indian rights, but narrowly when considering the elimination or abrogation of those rights. Most of the special canons of construction dealing with treaty rights also have been applied to agreements, executive orders, and statutes dealing with Indians.

Congress' plenary power: Rights established by treaty, or by other documents, can be abrogated by Congress pursuant to its plenary power.

Most, although not all, of the above principles, first developed in treaty cases, have been extended to situations not involving treaties.

Removal

Beginning in the 1830's, many tribes across the country were "removed" from their aboriginal lands to other lands. Numerous tribes were removed to the "Indian Territory," most of which was later to become the state of Oklahoma. The most famous removal was that of the Five Civilized Tribes (comprised of the Cherokee, Choctaw, Chickasaw, Seminole and Creek), but other tribes also were removed to new lands, frequently at great distances from their original homelands. In most of the cases where the United States moved several tribes onto a single reservation, the residents at each such reservation were regarded by the federal government then, and today, as a single tribe, despite the existence of distinct internal divisions.

Some bands, or other portions of tribes, refused to remove with the main bodies of their tribes. Congress has the power to designate such remnant groups as "tribes" and deal with them in the normal course of the federal-tribal relationship. For example, Congress has exercised this power in regard to the Eastern Band of Cherokee Indians, the Seminole Tribe of Florida and the Mississippi Band of Choctaw Indians. In some instances, individual Indians from several historic tribes have been located on a single reservation. Such groups also are considered tribes and exercise self-governing power.

The End Of Treaty Making

In 1871, Congress provided that the United States would no longer make treaties with Indian tribes; all rights under existing treaties, however, were protected. The end of treaty making has had little legal effect, since the United States has continued to deal with Indian tribes in much the same manner through agreements included in statutes and executive orders.

The Reservation System

The reservation system, which began during the treaty-making era, continued to expand as later reservations were added by statute and executive order. Indian law and policy continues to focus primarily upon the reservation system. Among other things, the reservation system is the principal means by which "Indian Country" was established. Indian Country is the starting point for analysis of jurisdictional issues and is not limited to land actually owned by Indians but rather includes non-Indian lands within the exterior boundaries of a reservation.

In carrying out the provisions of Indian treaties, Congress began developing a system of services and benefits for Indian tribes and individuals. These include education, health, welfare, business development, natural resource protection, and other programs. These special programs continue to be directed primarily, though not exclusively, to Indians on or near reservations.

c. The Era Of Allotment And Assimilation (1871-1928)

The General Allotment Act Of 1887

Originally, reservation land generally was owned communally by the tribe. In some cases, however, land title was lodged with individual tribal members. A few treaties before 1887 provided for "allotments," that is, for some parcels of land to be held by individuals rather than tribes.

Then in 1887 Congress passed the General Allotment Act, or Dawes Act, one of the most significant federal statutes in the field of Indian law. The Act delegated authority to the Bureau of Indian Affairs to allot parcels of tribal land to individual Indians -- 160 acres to each family head, 80 acres to each single person over 18 years of age. Each individual allotment would remain in trust (exempt from state tax laws and other state laws) for 25 years, although that period could be shortened or extended.

In addition, large amounts of tribal land not allotted were opened for homesteading by non-Indians. Compensation was made to the tribes for the sale of these surplus lands, but the primary effect was that Indian land-holdings decreased from 138 million acres in 1887 to 48 million acres in 1934, a total loss of 90 million acres. Another effect was the "checkerboard" pattern of ownership by tribes, individual Indians, and non-Indians, causing serious jurisdiction and management problems.

Finally, assimilation and allotment were pursued with vigor in the Indian Territory where tribal Governments and land-holdings were broken up so that Oklahoma could become a state in 1907. Allotment was not imposed on all tribes, but it fundamentally altered life on those reservations where it was applied.

Assimilation By Means Of Social Policy

The allotment of lands was one of several policies followed during the era that were intended to assimilate Indians into the larger society. BIA boarding schools were established, where Indians were required to abandon their languages, native dress, religious practices, and other traditional customs. Native religious practices generally were suppressed, an extreme example being the suppression of the Ghost Dance, which resulted in the Wounded Knee Massacre of 1890. The exercise of governmental authority by tribal governments was discouraged and the local BIA superintendent, in effect, governed many reservations. Under the Major Crimes Act of 1885, the federal government took jurisdiction from the tribes for dealing with certain criminal acts, an erosion of tribal sovereignty.

The Indian Citizenship Act Of 1924

Many Indians became United States citizens upon receiving allotments or by virtue of special provisions in treaties or statutes. To both provide equity and promise assimilation, all Indians were made United States citizens in 1924.

d. Indian Reorganization (1928-1945)

The Meriam Report

The Meriam Report of 1928 set the tone for a reform movement in Indian affairs. This influential study, prepared by the Brookings Institution, publicized the deplorable living conditions on reservations and recommended that health and education funding be increased, that the allotment policy be ended, and that tribal self-government be encouraged.

The Indian Reorganization Act Of 1934 (IRA)

The Indian Reorganization Act was passed in 1934 and translated into legislation some of the recommendations of the Meriam Report. A primary thrust of the Act was to stabilize the tribes' land-holdings by providing that no new allotments would be made and by extending the trust period for existing allotments. The Act sought to promote tribal self-government by encouraging tribes to adopt constitutions and to form federally chartered corporations. The Act also included a hiring preference for Indians in the BIA, established a revolving loan fund for tribal development, expressly allowed the Secretary of the Interior to accept additional tribal lands in trust, and generally included other provisions directed toward improving the lot of Indians.

Tribes were given two years in which to accept or reject the IRA. One hundred eighty-one tribes accepted it, motivated perhaps by the Act's objective of eliminating the Department of the Interior's absolute discretionary power over the tribes. Many tribes, however, viewed the IRA's prescribed method for establishing tribal governments as perpetuating the paternalistic assimilation policy. Seventy-seven tribes therefore rejected the IRA.

Tribal Self-Government

The most significant contribution of the IRA was to promote the exercise of self-governing powers. Whether or not they rejected the provisions of the Act, tribes were influenced by it to formalize their political authorities in new ways. On some reservations, traditional leaders were excluded from this process deliberately or unintentionally, and they and their followers have been critical of the legislation ever since. In spite of these failings, the Act clearly has been important in providing a framework for the exercise of political authority by tribes.

e. The Termination Era (1945-1961)

The Indian Claims Commission Act

Before 1946, Indian tribes lacked a forum in which to sue the federal government for actions or lack of action that they considered detrimental to their welfare. Their only recourse was to request from Congress special authority to seek money damages in the Court of Claims. Over the course of a century, more than 140 separate acts containing such authority were passed by Congress, and many others were considered.

Finally, in 1946, Congress created a tribunal for the express purpose of providing Indian tribes an opportunity to obtain damages for the loss of tribal lands. Known as the Indian Claims Commission, this special court was authorized to hear and decide causes of action originating prior to the year of its creation. Tribes were given five years, or until 1951, to file their claims; no statutes of limitations were to be applied, and certain claims not previously recognized were to be allowed.

This claims process has resulted in substantial recoveries to some tribes but its restrictions have been criticized in several respects. The United States was allowed so-called "gratuitous offsets," in the amount of past services provided to tribes, against claims awarded to tribes. No interest was allowed on claims based on takings of aboriginal title or executive order lands. Although the tribes were permitted to select their own counsel, approval by the Secretary of the Interior was required. Claims usually were then divided into three separate, and time-consuming, stages: determination of title ownership, valuation of the United States' liability, and determination and deduction of offsets to the United States' liability. If the claim was successful, only money damages were available because the Claims Commission Act did not provide for the recovery of land. Finally, the monetary award was distributed to individual tribal members, rather than to tribes, so that an opportunity to strengthen tribal institutions was lost.

However, the 1946 Act applies only to claims against the United States and does not cover claims against non-federal entities based on violations of the Nonintercourse Act. Thus, for example, the land claims of eastern tribes -- which are often against states, counties, and private entities -- are not included. Tribes are free to seek a return of land in the appropriate forum.

In 1978, cases not completed by the Indian Claims Commission were transferred to the Court of Claims, which in 1993 became the United States Court of Federal Claims. Of the 617 dockets originally filed, many have not been resolved.

The Termination Acts

House Concurrent Resolution 108 (HCR 108), adopted in 1953, expressed Congress' policy regarding its special relationship with Indian tribes. That document called for ending such relationships as rapidly as possible. In line with that policy, the following groups were terminated from their federal relationship (tribes marked with an asterisk have since been restored to federal status):

• Alabama and Coushatta Tribes of Texas;*
• Catawba Indian Tribe of South Carolina;
• Klamath, Modoc, and Yahooskin Band of Snake Indians-Oregon;*
• Ponca Tribe of Nebraska;
• Mixed Blood Ute Indians of Uintah and Ouray-Utah;
• 40 California Indian Rancherias;
• Western Oregon Indians, including Confederated Tribes of Siletz Indians,*
• Confederated Tribes of the Grand Ronde Community,* and Cow Creek
• Band of Umpqua;*
• Menominee Tribe of Wisconsin;*
• Ottawa Tribe of Oklahoma;*
• Peoria Tribe of Oklahoma;*
• Wyandotte Tribe of Oklahoma;* and
• Paiute Indian Tribe of Utah. *

These groups were singled out for what has become known as the termination experiment. Termination fundamentally altered the special federal-tribal relationship by making the following changes:

1. Tribal landownership was altered fundamentally by sale to third parties (although with compensation to tribal members); by transfer to private trusts; or by transfer to new tribal corporations under state law.

2. All special federal programs to tribes were discontinued.

3. Generally all special federal programs (for example, health and education services) to individual Indians were discontinued.

4. State legislative jurisdiction was imposed.

5. State judicial authority was imposed, one exception being the area of hunting and fishing rights, which were found not to be terminated in the cases of several tribes.

6. Exemptions from state taxing authority were ended.

7. Tribal sovereignty, as a practical matter, was ended.

Public Law 280

Many tribes saw their sovereignty greatly diminished during the termination era even though they actually were not terminated. The most important piece of legislation in this regard is Public Law 280, passed in 1953, which was the first general federal legislation extending state jurisdiction to Indian Country. In certain named states, Public Law 280 provided for state jurisdiction on specified reservations. Public Law 280 also provided state jurisdiction on other reservations in states that took the steps necessary to assume jurisdiction under the Act.

f. The "Self-Determination" Era (1961-Present)

The abuses of the termination era led to the reforms of the 1960's, 1970's, and 1980's, just as the IRA was a reaction to the negative impact of the allotment era. This period has been characterized by expanded recognition and application of the powers of tribal self-government, and by the general exclusion of reservations from state authority. The progress has not been uniform -Indians have suffered their share of reversals -- but on balance it can be said that Indian tribes and individuals have benefited from more favorable legislation and judicial decisions during the 1970's and 1980's than in any other period in the country's history.

Legislative Acts

A watershed between the termination and self-determination eras was the Indian Civil Rights Act of 1968 (ICRA), which extended most of the protections of the Bill of Rights to tribal members in dealings with their tribal governments. Such action was taken because the Constitution itself does not limit tribal self-government by imposing the Bill of Rights on Indian tribes. The ICRA also included important provisions allowing states that had assumed jurisdiction under Public Law 280 to "retrocede"-- or transfer back --jurisdiction to the tribes and the federal government.

In 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA). The land claims of Alaska Natives -- based on aboriginal title to much of the state -- had never been resolved. The complex Act extinguished aboriginal claims and called for the transfer of 44 million acres of land to new Alaska Native owned and controlled state-chartered corporations. ANCSA also provided for a total cash payment of approximately $1 billion dollars to Alaska Natives.

Another major statute of this era is the Indian Self-Determination and Education Assistance Act of 1975 -- often referred to as "638" since it was passed as Public Law 93-638. Through grants and contracts, the Act encourages tribes to assume administrative responsibility for federally funded programs that were designed for their benefit and that previously were administered by employees of the Bureau of Indian Affairs and the United States Indian Health Service. Education and health programs generally were expanded during this period. A significant piece of legislation was the Indian Health Care Improvement Act. Among other things, the Act consolidated Indian Health Service (IHS) programs, authorized funding that would improve IHS programs, and created programs to educate health professionals for work in Indian Country.

In 1978, Congress enacted two significant pieces of legislation, one dealing with child welfare, the other with religious freedom. The Indian Child Welfare Act treats the long-standing problem of large numbers of Indian children being transferred from their natural parents to non-Indian parents pursuant to state adoption and guardianship proceedings. In general, the Act (1) requires that many adoption and guardianship cases take place in tribal court; and (2) establishes, for those cases that are heard in state court, a strict set of statutory preferences for Indian guardians over non-Indian guardians. The American Indian Religious Freedom Act, passed in the same year, explicitly recognizes the importance of traditional Indian religious practices and directs all federal agencies to insure that their policies will not abridge the free exercise of Indian religions.

A major legislative development during the past 20 years has been the appropriation by Congress of greatly increased funds for Indian affairs. Under the Reagan administration and the Gramm-Rudman Act, funding levels have dropped but generally have remained higher, even after accounting for inflation, than the funding levels of the 1950's and early 1960's.

Executive Action

Administrative policy began to shift in the mid-1960's. In 1966, Interior Secretary Stewart Udall told BIA administrators and congressional aides that self-determination for Indians would be the theme of the remainder of his administration. The subject also was covered in President Johnson's congressional message in 1968. Another major event was President Nixon's message to Congress in 1970. Indian preference has resulted in a steadily growing number of Indian BIA employees. Most leadership positions in the BIA now are held by Indians. The Bureau increasingly sees itself as owing its primary allegiance to Indian tribes and individuals. In 1977 the Department of the Interior established a new position -- the Assistant Secretary for Indian Affairs. In the 1980's, the Reagan administration repeatedly expressed its support for tribal self-determination and for a government-to-government relationship. President Clinton has made a commitment to Indian people and his administration may bring with it a new era of Indian policy.

Judicial Action

The period of the 1970's was an extraordinarily active one for Indian litigation. During that decade, the Supreme Court heard some 33 Indian law cases -- more, for example, than in the fields of anti-trust law or consumer law. The trend has continued in the 1980's: during the 1984 Term alone the Court handed down seven Indian cases. Although the tribes have suffered setbacks on a number of issues, the overall thrust of the cases has been strongly in favor of Indian tribal prerogatives.

Leading cases limiting tribal powers include Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (Indian tribes cannot exercise criminal jurisdiction over non-Indians); Montana v. United States, 450 U.S. 544 (1981) (Crow Tribe, on facts of case, cannot regulate hunting fishing by non-Indians within reservation boundaries; tribes can exercise civil jurisdiction over non-Indians only if an important tribal interest is at stake); Nevada v. United States, 463 U.S. 110 (1983) (Pyramid Lake Tribe of Nevada barred by prior court decree from litigating reserved water rights); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983) (under McCarran Amendment of 1952, most Indian water rights cases must be heard in state, not federal, court); United States v. Dann, 470 U.S. 39 (1985) (United States' payment into interest-bearing trust account for tribal lands extinguished tribes' aboriginal title).

Cases establishing important principles in favor of Indians are McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973) (state tax laws preempted by federal action and do not apply in Indian Country); Bryan v. Itasca County, 426 U.S. 373 (1976) (Public Law 280 does not confer authority upon states to tax Indians or Indian property on reservations); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (Indian Civil Rights Act of 1968 did not grant jurisdiction to federal courts for a civil action by a tribal member against the tribe; such cases must proceed in tribal forums, including tribal courts); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979) (treaty providing for "right of taking fish ... in common with all citizens of the Territory" broadly construed in favor of Indians to mean that treaty tribes reserved the opportunity to harvest 50 percent of the fish that would pass their usual and accustomed off-reservation fishing, places); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (upholding a tribal severance tax on mineral companies and expounding at length on inherent tribal sovereignty); Solem v. Bartlett, 465 U.S. 463 (1984) (reservation lands settled by non-Indians were not disestablished from the reservation); County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (tribe's federal common law right to sue to enforce aboriginal land rights upheld despite passage of 175 years since claim first arose); and California v. Cabazon Band of Mission Indians, 107 S.Ct. 1083 (1987) (Public Law 280 state cannot regulate gambling operations in Indian Country if such activity is not in violation of the "State's public policy").

Tribal Action

The number of tribal courts has risen markedly since the 1970's and the courts have become increasingly professional. The Supreme Court expressly recognized this when it recently held that challengers to a tribal court's jurisdiction must exhaust tribal court remedies before proceeding to federal district court. However, the ruling in the Oliphant case that tribes lack criminal jurisdiction over non-Indians continues to be an emotional issue for tribal governments. Thus, tribes increasingly exercise their jurisdictional authority in civil contexts to counteract this loss of criminal jurisdiction.

Tribal councils have chosen to exercise their powers to a much greater degree. Examples include recent tribal ordinances dealing with issues such as zoning, air and water pollution, watershed management, hunting and fishing regulation, and taxation. Tribes also have attempted, with varying degrees of success, to implement the contracting provisions of the Indian Self-Determination Act of 1975.

A generalized development, almost revolutionary in nature, is the simple fact that tribes have become far more sophisticated in wielding political power. Increased appropriations and more precise definitions of tribal authority have given tribes the capacities to affect their destinies to an extent unknown since the coming of the Europeans. Tribal lobbying in Congress and even in state legislatures has become much more effective. Several national Indian organizations have become important voices in the formulation of policy. Tribes are by no means winning all of the legislative battles, but the tribes know the rules for fighting those battles and almost always exercise sufficient clout to make their presence felt.

2. Treaty Rights

Treaty Rights, Past And Present

When Europeans first established colonies in America, they had little choice but to deal with the Indian tribes as the independent nations that they were. Terms of peace and exchanges of land were accordingly accomplished by treaty between the colonial governments and the tribes. After the Revolution, the federal government continued to deal with the tribes by treaty, although it also regulated various aspects of Indian affairs by statute.

From the first treaty with the Delawares in 1787 until the end of treaty-making in 1871, hundreds of agreements were entered between the federal government and various bands and tribes of Indians. Treaty provisions differed widely, but it was common to include a guarantee of peace, a delineation of boundaries (often with a cession of specific lands from the tribe to the federal government), a guarantee for Indian hunting and fishing rights (often applying to the ceded land), a statement that the tribe recognized the authority or placed itself under the protection of the United States, an agreement regarding the regulation of trade and travel of persons in the Indian territory, and a provision for punishment of crimes between Indians and non-Indians.

Even when the tribes possessed some bargaining power, the treaty-making process put them at a disadvantage. Treaties were written in English and their terms were often explained in exactly or incorrectly, to the Indian signatories. The very concepts of land ownership and governmental relations embodied in the treaties were often wholly foreign to the tribal cultures. Moreover, the federal government frequently negotiated with individuals whom it had selected and who were not the traditional leaders of the concerned tribes. All of these factors contributed to overreaching on the part of the federal government.

Nevertheless, important rights were guaranteed to the tribes by treaty, and many of these rights continue to be enforceable today. Indian treaty-making has ended, but it would be a gross error to conclude that treaties are purely of historical interest. Rights secured to the tribes by treaty today include beneficial ownership of Indian lands, hunting and fishing rights, and entitlement to certain federal services such as education or health care. This is not to say that all such present rights are secured by treaty; many of them are the product of statute or executive agreement. A substantial number, however, still arise from treaties.

Indian treaties stand on essentially the same footing as treaties with foreign nations. Since they are made pursuant to the Constitution, they take precedence over any conflicting state laws by reason of the Supremacy Clause. U.S. Const., Art. VI, � 2; Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). They are also the exclusive prerogative of the federal government. The First Trade and Intercourse Act, 1 Stat. 137 (1790), forbade the transfer of Indian lands to individuals or states except by treaty "under the authority of the United States." This provision. repeated in later Trade and Intercourse Acts, has become of tremendous current importance, for several eastern states negotiated large land cessions from Indian tribes near the end of the eighteenth century.

Not only is the treaty-making power exclusively federal, it is almost entirely presidential. While it is true that two-thirds of the Senate must concur in any treaty, the initiation of the process and the terms of negotiation are inevitable controlled by the executive branch. (Indeed, there were many instances, especially in California, where executive officials negotiated treaties and acted upon them despite the failure of the Senate to ratify them.) In the middle of the eighteenth century, Congress and particularly the House of Representatives grew increasingly resentful of being excluded from the direction of Indian affairs. The ultimate result was the passage in 1871 of a rider to an Indian appropriations act providing that: "No Indian nation or tribe... shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty...... 25 U.S.C.A. � 71. The rider also specified that existing treaty obligations were not impaired. As an attempt to limit by statute the President's constitutional treaty-making power, the rider may well be invalid, but it accomplished its purpose nonetheless by making it clear that no further treaties would be ratified. Indian treaty-making consequently ended in 1871, and formal agreements made with the tribes thereafter were either approved by both houses of Congress or were simply embodied in statutes.

Construction 0f Treaties

To compensate for the disadvantage at which the treaty-making process placed the tribes, and to help carry out the federal trust responsibility, the Supreme Court has fashioned rules of construction sympathetic to Indian interests. Treaties are to be construed as they were understood by the tribal representatives who participated in their negotiation. They are to be liberally interpreted to accomplish their protective purposes, with ambiguities to be resolved in favor of the Indians.

One of the most important applications of these rules of construction is found in Winters v. United States, 207 U.S. 564 (1908), which dealt not with a treaty but with an Indian agreement made in 1888 and ratified by an act of Congress. The tribes involved in that agreement had ceded to the United States a large tract of land to be opened up for settlement, while reserving to themselves other land, bordered by a flowing stream, which became the Fort Belknap Reservation in Montana. Non-Indian settlers diverted the stream, and the United States brought suit on behalf of the Indians. The settlers argued that lands would not have been cede for settlement without also ceding the water which would permit them to become fruitful. The United States argued that lands would not have been reserved for the tribes unless water had also been reserved to make the reservation productive. Faced with these plausible contradictory interpretations, the Court chose to interpret the agreement from the standpoint of the Indians and to resolve the conflict in their favor. The resulting decision has become the foundation of all Indian water law.

If the language of a treaty is clear, it will be applied whether or not the outcome is favorable to the Indians. Even where the treaty provisions are unclear, the tribes do not inevitably win every dispute over their interpretation. Nevertheless, the rules of construction have had a very substantial effect favorable to Indian interests.

The rule of sympathetic construction has been carried over from treaties to statutes dealing with Indian matters. The Supreme Court has on numerous occasions adhered to "the general rule that statutes passed for the benefit of the dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918). This rule has been applied in construing Public Law 280, a statute that deals with Indian but was not necessarily passed for their benefit. Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976).

Abrogation Of Treaties

One of the least understood facts about Indian treaties is that they may be unilaterally abrogated by Congress. Because treaties often contain recitals that they will remain in effect "as long as the grass shall grow" or for some other equally eternal length of time, many people assume that any alterations in terms would have to be mutually negotiated by the federal government and the tribes. The law, however, is to be contrary.

Indian treaties as well as international treaties stand on the same footing as federal statutes. Like federal statutes, they can be repealed or modified by later federal statutes. Thus if the United States enters a treaty with a foreign nation and Congress subsequently passes a statute inconsistent with the provisions of the treaty, the statute will control and the treaty is abrogated, at least to the extent of the inconsistency. Whatever may be the implications of the abrogation for purposes of international law, there is not question that the abrogating statute becomes the governing internal law of the United States. Chae Chan Ping v. United States, 130 U.S. 581 (1889).

The Supreme Court's first application of the same principle to Indian treaties came in The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871), which upheld a federal tax on tobacco sold within Cherokee territory despite a prior treaty that guaranteed an exemption. The decision most often cited for the proposition that Congress may abrogate an Indian treaty, however, is Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). That case involved a treaty with the Kiowas and Comanches which set aside lands to be held communally by the tribes and provided that no further cessions of those lands could be made without the consent of three-fourths of the adult male Indians of the tribes. Many years later, a further cession was arranged by the federal government but the number of adult males who consented fell short of three-fourths. Congress nevertheless passed a statute putting the cession into effect. The Court upheld the statute, stating that a treaty could not be given a legal effect that would restrict the future exercise of Congress' plenary power over Indian affairs. The Court also elaborated:

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.

187 U.S. at 566. While it might be questioned whether the land cession in Lone Wolf could properly be characterized as consistent with perfect good faith towards the Indians, the outcome left no doubt about Congress's ability to abrogate.

The mere fact that Congress has the power to abrogate does not mean, however, that every statute that is potentially inconsistent with a treaty effects an abrogation. If Congress expressly states that it is modifying a particular treaty, then the deed is done and the courts have no room to maneuver. It is far more common for Congress to pass legislation seemingly inconsistent with a treaty without mentioning (or perhaps even considering) the effect that the statute is to have on treaty rights. In such cases, the courts have an opportunity to consider whether the unexpressed intent of Congress was indeed to abrogate, or whether congressional purposes would be better served by implying exceptions to the statute that will prevent impairment of the treaty. The nature of the judicial function in this type of case is similar to that in cases involving a question of implied repeal of a statute or of preemption of state law by a federal statute. The outcome depends in part on the nature and scope of the particular statute involved, which makes it difficult to reduce decisions of this type to a pattern and it also depends upon a weighing and balancing of policy issues that may exist quite independently of the intent or purposes of Congress.

It seems clear enough that the trust relationship between the federal Government and the Indian tribes ought to weigh heavily against implied abrogation of treaties. It has been urged that abrogation ought never to be found in the absence of Congress' direct statement that it intends to do just that. However, the courts in recent years have not gone that far. Where Congress' intent to affect particular tribal interests is unmistakably clear, that intent will generally be effectuated despite a treaty to the contrary.

Where there is any room for doubt as to congressional intent, however, the Supreme Court has indicated that it will go to considerable lengths to avoid the destruction of treaty rights. Menominee Tribe v. United States, 391 U.S. 404 (1968), provides the cardinal example. A 1954 treaty set aside lands for the Menominee "to be held as Indian lands are held." The Court, interpreted this phrase sympathetically to guarantee hunting and fishing rights on the reservation lands. In 1954, Congress passed a Termination Act which provided that in 1962 the special relationship between the Menominee Tribe and the federal government would end and that:

all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.

25 U.S.C.A. � 899 (1954), repealed 25 U.S.C.A. � 903a(b) (1973). No mention was made in the Termination Act of the Menominee's treaty hunting and fishing rights. Wisconsin argued that the statue necessarily extinguished those treaty rights and subjected the Menominee who hunted and fished on the former reservation to state licensing and regulatory laws. A majority of the Court held, however, that the Termination Act referred to federal statutes becoming inapplicable but said nothing of treaties. In concluding, the majority stated, "[w]e decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians" and "[w]e find it difficult to believe that Congress without explicit statement would subject the United States to a claim for compensation by destroying property rights conferred by treaty...... 391 U.S. at 412-413. While these remarks probably ought not to be read as requiring an explicit congressional statement for every abrogation, the Menominee case is unquestionably strong authority for the proposition that congressional intent to abrogate a treaty is not to be easily implied.

As the concluding language of the Menominee case indicates, abrogation of a treaty may give rise to a claim of compensation. Where a treaty creates property rights, Congress' power to abrogate the treaty does not free it from the duty to compensate for the destruction of the property rights involved. The abrogation itself is effective, but the tribe is entitled to a claim for a "taking" under the Fifth Amendment. See United States v. Creek Nation, 295 U.S. 103 (1935).

3. Federal Trust Responsibility

Pervasive Influence Of The Trust

The trust relationship between the United States and American Indian tribes has many unique features that influence, in some fashion, most aspects of Indian law. Although this relationship may have begun as a force to control tribes, even to subjugate them, it now provides federal protection for Indian resources and federal aid of various kinds in development of these resources.

The Trust Duty And Congressional Plenary Power

Congress has special authority over Indian affairs under the Indian Commerce Clause of the Constitution (art. 1, � 8, cl. 3), which allows the national legislature "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian Tribes" (emphasis supplied). Today, following the Supreme Court's 1973 decision in McClanahan v. Arizona State Tax Commission, the Indian Commerce Clause, along with the power to make treaties, is seen as the principal basis for broad federal power over Indians. The concept of a special federal power over Indian affairs is a basic notion in Indian law and policy.

Congressional power over Indians is often described as "plenary," the literal meaning of which is "absolute" or "total." The phrase "plenary power," however, is misleading; congressional power is broad, but is subject to procedural and constitutional limitations. Further, exercises of authority from Congress by administrative officials are limited sharply in many respects, often by various applications of the trust duty. The broad federal power under the Indian Commerce Clause can be appreciated only by an understanding of the rigorous standards of conduct that often are imposed by the trust doctrine.

a. Origins Of The Trust Relationship

Early Recognition Of The Trust

The concept of the federal Indian trust responsibility was evident in the Trade and Intercourse Acts and other late 18th and early 19th century federal laws protecting Indian land transactions and regulating trade with the tribes. The trust first was announced in Chief Justice Marshall's decision in Cherokee Nation v. Georgia (1831). Suit was filed by the tribe in the United States Supreme Court to enjoin the state of Georgia from enforcing state laws on lands guaranteed to the tribe by treaties. The Court concluded that the tribe was neither a state nor a foreign nation under the Constitution and therefore was not entitled to bring the suit initially in the Supreme Court. Chief Justice Marshall, however, concluded that Indian tribes "may, more correctly, perhaps, be denominated domestic dependent nations... in a state of pupilage" and that "[t]heir relation to the United States resembles that of a ward to his guardian."

The Supreme Court's subsequent decision in Worcester v. Georgia (1832) reaffirmed the status of Indian tribes as self-governing entities. Chief Justice Marshall construed the treaties and the Indian Trade and Intercourse Acts as protecting the tribes' status as distinct political communities possessing self-government authority within their boundaries. Thus, Georgia state law could not be applied on Cherokee lands because, as a matter of federal law, the United States had recognized tribal self-governing powers by entering into a treaty with the Cherokees. In spite of its governmental status, however, the Cherokee Nation was placed expressly by the treaties "under the protection of the United States."

Perhaps the most important aspect of the trust relationship is the protection of Indian land ownership. The Trade and Intercourse Acts prohibited the sale of Indian land without federal consent. Indians, although not citizens at that time, held their lands and other property as trust beneficiaries of the United States. This arrangement, in theory at least, protected Indian land ownership and allowed the federal government rather than the states to control the opening of Indian lands for non-Indian settlement. The trust relationship, therefore, enhanced federal power, but it also created federal duties relating to Indian lands and other natural resources.

Later Developments

The courts consistently have upheld exercises of congressional power over Indian affairs, often relying upon the trust relationship. For example, in United States v. Kagama (1886), the Supreme Court affirmed Congress' power to enact the Major Crimes Act. Congress' "plenary" power even includes the power to terminate the trust relationship unilaterally without Indian consent and over Indian objections. Statutes providing for the allotment of tribal lands to tribal members also have been sustained as constitutional by the courts, even where such dilution of tribal property specifically was prohibited by treaty.

Under the special relationship, Indian tribes receive some benefits not available to other citizens. For example, in the 1974 Morton v. Mancari decision, the Supreme Court upheld a BIA Indian hiring preference because, like special health and education benefits flowing from the trust relationship, the preference is not based on race; rather, federal programs dealing with Indians derive from the government-to government relationship between the United States and Indian tribes. The same reasoning applies to off-reservation Indian hunting and fishing rights; they trace to treaties with specific tribal governments and are not rights generally held by members of a race.

b. Federal Recognition Of The Trust Relationship

The rights, duties and obligations which make up the trust relationship as exercised through the Secretary of the Interior exist only between the United States and those Indian tribes "recognized" by the United States. Once federal recognition is found to exist, it results in the establishment of a government-to-government relationship with the tribe and makes the tribe a "beneficiary" of the trust relationship with the federal government.

An Indian group is a federally recognized tribe if: (1) Congress or the executive created a reservation for the group either by treaty (before 1871), by statutorily expressed agreement, or by executive order or other valid administrative action; and (2) the United States has some continuing political relationship with the group, such as providing services through the BIA. Accordingly, Indian groups situated on federally maintained, reservations are considered tribes under virtually every statute that refers to Indian tribes.

Court decisions of the mid-1970's suggest that even a general act of Congress such as the Trade and Intercourse Act of 1790 (prohibiting the sale of tribal lands without the consent of Congress) serves to establish a partial trust relationship between all tribes and the federal government. Determination of tribal existence, therefore, becomes critical.

In 1978, in order to resolve doubts about the status of those tribes lacking federally recognized reservations, the Department of Interior issued regulations entitled "Procedures for Establishing that an American Indian Group Exists as an Indian Tribe," now published at 25 C.F.R. � 83. The regulations establish both a procedure to obtain federal acknowledgment and a substantive standard for determining whether a group is in fact an Indian tribe. The regulations can be reduced to four essential requirements: (1) a common identification ancestrally and racially as a group of Native Americans; (2) the maintenance of a community distinct from other populations in the area; (3) the continued historical maintenance of tribal political influence or other governmental authority over members of the group; and (4) the status of not being part of a presently recognized tribe. In these respects, the regulations reflect the basic judicial definitions of the term "Indian tribe."

c. Modern Consequences Of The Trust Relationship

Power Of Congress

Congressional power over Indians remains broad, but Congress' power over Indians is not absolute and is subject to both procedural and constitutional limitations. The Supreme Court has held that the trust relationship does not authorize Congress to lessen any of the rights of property protected by the fifth amendment without just compensation. Cases around the turn of the century suggested that acts of Congress constitute "political questions" not subject to judicial review in the courts. The leading opinion is Lone Wolf v. Hitchcock(1903). More recent decisions,such as Delaware Tribal Business Committee v. Weeks (1977) and United States v. Sioux Nation (1980), have stated, however, that acts of Congress and executive officials are subject to judicial review under ordinary principles of constitutional and administrative law. Recent cases also have considered the trust obligations of the United States as a limiting standard for judging the constitutional validity of an Indian statute. In its 1974 decision in Morton v. Mancari, the Supreme Court upheld the constitutionality of a statute granting Indians an employment preference in the Bureau of Indian Affairs, stating: "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligations toward the Indian, such legislative judgment will not be disturbed."

Thus, where Congress exercises its specific authority over Indians, the trust obligation appears to require a determination that the protection of the Indians will be served. Otherwise, a statute would not be "tied rationally" to the trust obligation to Indians, as required by the Supreme Court. However, if Congress exercises a constitutional authority distinct from its authority over Indians, such as the power of eminent domain, it can act contrary to the Indians' interest. Additionally, reviewing courts usually will not second-guess a congressional determination that a statute is an appropriate protection of Indian interests.

The trust is relevant in other ways. Accordingly, courts construe statutes affecting Indians, as well as treaties and executive agreements, as not abrogating prior Indian rights or, in cases of ambiguity, in a manner favorable to the Indians. In addition, although the courts have held that Congress can alter treaty rights unilaterally or act in a fashion adverse to the Indians' interest, the trust requires that Congress set out its intent to do so in "clear," "plain" or "manifest" terms in the statutory language or legislative history.

The Administration Of Indian Policy And The Trust Responsibility Today

Traditionally, most aspects of the trust responsibility were delegated by Congress to the Department of the Interior and the Department of Justice, the latter of which historically has litigated many court cases on behalf of Indian tribes and individuals. As federal programs for Indians have proliferated in modern times, many other federal agencies have become involved in Indian affairs and they, too, must comply with the duties imposed by the special relationship. In addition to the Department of Justice and several agencies in the Department of Interior (e.g., the Bureau of Land Management, the Bureau of Reclamation, and the U.S. Geological Survey), federal programs for Indians are administered by the Department of Education, Department of Health and Human Services, Department of Agriculture, Department of Housing and Urban Development, and others. As a result, the special relationship reaches far beyond the Bureau of Indian Affairs.

Power Of Executive Officials

In contrast to the power of Congress, the power of executive officials is constrained narrowly by the trust relationship. Unless the trust relationship has been terminated by Congress, judicial decisions hold executive officials to stringent fiduciary standards in their management of and dealings with Indian trust property. Decisions of the Supreme Court reviewing the lawfulness of administrative conduct managing Indian property have held officials of the United States to "obligations of the highest responsibility and trust" and "the most exacting fiduciary standards." Furthermore, executive officials are bound "by every moral and equitable consideration to discharge [the] trust with good faith and fairness." Therefore, executive officials must adhere to the standards of an ordinary fiduciary in dealing with Indian trust property. If they do not, the United States may be sued for money damages, for declaratory relief, or for injunctive relief.

The courts often have used the trusteeship to limit federal administrative power where Indian ownership of land is affected. Other cases have applied trust obligations where trust funds, mineral resources, timber, and water are subject to federal executive management. While the actions of the executive in carrying out the federal trust duties are required to adhere to strict fiduciary standards, the United States as trustee has the flexibility to exercise reasonable judgment in choosing between alternative courses of action. The interests of the beneficiary always must be paramount, however, and the fiduciary's duty of loyalty must be observed strictly.

The requirement of loyalty is especially important in cases where the United States has a conflict of interest between general public programs and the rights or claims of Indian trust beneficiaries. There are innumerable such conflicts. Indians may claim, for example, lands that are administered as public lands or national forests, waters sought by federal agencies for federally financed water projects, or fishing rights that impinge on federal fish management or energy development projects. As noted, most of these conflicts arise within the Department of the Interior, but the obligations of the trust relationship are not limited to agencies in that department. The case law dictates that, unless Congress clearly authorizes it, federal agencies cannot subordinate Indian interests to other public purposes. One example of a case where Congress did so authorize is the 1983 decision in Nevada v. United States (1983), where a federal water project and the Pyramid Lake Indian Reservation had to share water from the Truckee River. In this case the Supreme Court held that the government does not compromise its responsibility to Indian tribes necessarily when Congress has obligated it by statute to represent simultaneously another interest:

These cases, we believe, point the way to the correct resolution of the instant cases. The United States undoubtedly owes a strong fiduciary duty to its Indian wards. [Citations omitted.] It may be that where only a relationship between the Government and the tribe is involved, the law respecting obligations between a trustee and a beneficiary in private litigation will in many, if not all, respects, adequately describe the duty of the United States. But where Congress has imposed upon the United States, in addition to its duty to represent Indian tribes, a duty to obtain water tights for reclamation projects, and has even authorized the inclusion of reservation lands within a project, the analogy of a faithless private fiduciary cannot be controlling for purposes of evaluating the authority of the United States to represent different interests.

Duty To Represent Indian Tribes And Individual Indians In Litigation

A federal statute, 25 U.S.C. � 175, requires that: "in all states and territories there are reservations or allotted Indians, the United States Attorney shall represent them in all suits at law and in equity." The statute does not require federal representation of Indian tribes and individuals in all situations, but the law is a crucial aspect of the trust relationship. Many major court cases have been litigated by the United States concerning allotments and tribal land, water, and hunting and fishing rights. Section 175 has been criticized as extending to Indians important special benefits not received by any other group in the country. One major decision held that the trust responsibility obligates the Department of Justice to represent reasonable Indian claims to lands and other resources in court, even though the Justice Department may have doubts about the validity of the claim.

d. Interior Department Review And Approval Of Tribal Actions

The Interior Department reviews or approves certain tribal legislative actions some of which concern Indian property and resource dealings. For example, as required by federal law, the Department approves tribal legislation involving leases and grants of rights-of-way over both tribal trust lands and allotted lands. In recent years there has been a great deal of controversy concerning the Secretary's administration of mineral leases on reservations and concerning the Secretary's approval of water use ordinances, land use ordinances, and mineral tax ordinances. Another area of dispute involves general secretarial review of tribal ordinances -- an issue that arises for many tribes with IRA constitutions that include a clause requiring such secretarial review. As discussed by the Supreme Court in Kerr-McGee Corp. v. Navajo Tribe of Indians (1985), such provisions are not mandated by the IRA, and, in the interest of self-determination, the Department encourages tribes to remove (through constitutional amendment) the requirement for the Secretary to review certain kinds of enactments.

e. Conclusion

The trust relationship has proved to be dynamic and ongoing, evolving over time. One question that constantly arises is whether the trust relationship is permanent. Is it a perpetual relationship, or is it one that can or ought to be "terminated"? Is the purpose to protect Indian land ownership and self-governing status? Or is it to give the federal government power to assimilate Indians into the larger society, to rehabilitate them as "conquered subjects," or to "civilize" them?

Different eras have provided different answers to these questions. At the turn of the century the trust relationship was seen as short term and transitory. Indian land was to be protected for a brief transition period while Indians were assimilated into the "mainstream." The trust relationship was seen as the basis for congressional power to pass legislation breaking up tribal landholdings into individual allotments.

More recently, the view has broadened. The trust relationship now is seen as a doctrine that helps support progressive federal legislation enacted for the benefit of Indians, such as the modern laws dealing with child welfare, Indian religion, and tribal economic development. The trust also controls contemporary interpretations of time-honored treaties and statutes. The once transitory trust relationship apparently has developed into a permanent doctrine that will serve as a benevolent influence in the future of Indian law.

B. Modern Tribal Governments

1. Tribal Sovereignty

Definition Of Tribe

The term "tribe" is commonly used in two senses, an ethnological sense and a legal-political sense. For ethnological purposes, the term "tribe" depends upon a variety of technical considerations, for example, the nature of the social and political organization of its members.

The term "tribe" has no universal legal definition. There is no single federal statute defining an Indian tribe for all purposes, although the Constitution and many federal statutes and regulations make use of the term. In most instances the question of tribal existence can be resolved by reference to a treaty, statute, executive order, or agreement recognizing the tribe in question. In other cases the definition of tribe, like many other such generic terms, will depend in part on the context and the purposes for which the term is used.

Originally, the definitional question arose in connection with treaty relations, as it was necessary to determine which groups were political entities for the purpose of negotiating treaties with them. Later, federal legislation to regulate Indian affairs, to allow claims for depredations by Indians, to permit claims by Indians against the federal government, and to protect Indian property and other rights, required determinations of which groups fell within the meaning of the particular statute. More recently, it has been necessary to identify eligible recipients of federal programs for support, protection, and assistance.

Definition Of Indian

The term "Indian" may be used in an ethnological or in a legal sense. If a person is three-fourths Caucasian and one-fourth Indian, that person would ordinarily not be considered an Indian for ethnological purposes. Yet legally such a person may be an Indian. Racial composition is not always dispositive in determining who are Indians for the purposes of Indian law. In dealing with Indians the federal Government is dealing with members or descendants of political entities, that is, Indian tribes, not with persons of a particular race. Tribal membership as determined by the Indian tribe or community itself is often an essential element. In fact, a person of complete Indian ancestry who has never had relations with any Indian tribe may be considered a non-Indian for some legal purposes.

Recognizing the diversity included in the definition of Indian, there is nevertheless some practical value for legal purposes in a definition of Indian as a person meeting two qualifications: (a) that some of the individual's ancestors lived in what is now the United States before its discovery by Europeans, and (b) that the individual is recognized as an Indian by his or her tribe or community.

Congress has often deferred to tribal determinations of membership. On the other hand, in some instances Congress has departed from this standard by imposing additional requirements such as particular blood quantum, or by dispensing with the requirement of tribal membership or relations. It is therefore necessary to determine the specific purpose for which Indian identity is relevant. A conclusion may then be reached in the context of the statute or other provision in question.

a. The Doctrine Of Tribal Sovereignty

Indian governmental powers, with some exceptions, are not delegated powers granted by express acts of Congress, but are inherent powers of a limited sovereignty that have never been extinguished. This doctrine first was articulated in this country by Chief Justice John Marshall in Worcester v. Georgia (1832).

In modern times the Supreme Court has found that tribal governments are "unique aggregations possessing attributes of sovereignty over both their members and their territory." Powers not limited by federal statute, by treaty, by restraints implicit in the protectorate relationship, or by inconsistency with their status remain with tribal governments or reservation communities. Certain implied divestitures of tribal powers have occurred where the tribes' independent freedom to determine their external relations is deemed necessarily inconsistent with their dependent status. For example, by 1831, Johnson v. M'Intosh (1823) and Cherokee Nation v. Georgia (1831) had established firmly that Indian tribes impliedly had been divested of the power to alienate their lands and the power to make treaties with foreign nations. In 1978, the Supreme Court held in Oliphant v. Suquamish Indian Tribes that criminal jurisdiction over non-Indians also was subject to the implied divestiture doctrine. Therefore, tribes today possess no criminal jurisdiction over non-Indians. But, as discussed more fully below, most tribes retain the inherent sovereign power to exercise most forms of civil jurisdiction over non-Indians. In Merrion v. Jicarilla Apache Tribe (1982), the Supreme Court said this:

To state that Indian sovereignty is different than that of Federal, State, or local Governments, does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority in cases involving city, state, and federal taxes imposed under similar circumstances. Each of these governments has different attributes of sovereignty, which also may derive from different sources. These differences, however, do not alter the principles for determining whether any of these governments has waived a sovereign power through contract, and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard.

b. Fundamental Powers Of Indian Tribes

As mentioned above most tribal governments possess inherent powers of self-government and may exercise them to the extent they have not been extinguished. Therefore, powers of tribes cannot be described completely by reference to specific delegations from Congress. The following discussion will identify fundamental categories of tribal governmental power that have been recognized under federal law.

Power To Establish A Form Of Government

The power to establish a form of government is a basic element of sovereignty. Federal law recognizes that Indian tribes may adopt whatever form of government best suits their own practical, cultural, or religious needs. Tribes are not required to adopt forms of government patterned after the forms of the United States government. Since Indian tribes are not limited by the United States Constitution, they are not subject to such principles as the separation of powers or the religious establishment clause.

The constitutions adopted by the majority of tribes following passage of the Indian Reorganization Act (IRA) were based on sample governing documents developed by the Bureau of Indian Affairs. It has been held consistently that the exercise of these powers pursuant to IRA constitutions is founded not on delegated authority, but on a tribe's inherent power of sovereignty. Other tribes have organized their formal governments pursuant to their inherent sovereignty, outside the IRA framework, and the courts have upheld the validity of such governments, whether or not a written constitution has been developed.

Power To Determine Membership

Also fundamental is the right of tribes to determine tribal membership. Membership determines, among other things, the right to vote in tribal elections, to hold tribal office, to receive tribal resource rights such as grazing and residence privileges on tribal lands, and to participate in distribution of per capita payments when they occur. In Santa Clara Pueblo v. Martinez (1968), the Supreme Court found that the 1968 Indian Civil Rights Act did not require tribes to follow Anglo-American concepts of equal protection and due process in determining their membership, even when the denial of membership rights meant the denial of federal health and education benefits. Eligibility for federal benefits and assistance provided to Indians because of their status as Indians often is based on tribal membership. Depending on the statute at issue, however, this determination may involve a minimum quantum of Indian blood higher than the tribal membership provision.

Police Power

The authority of Indian tribes to legislate or otherwise adopt substantive civil and criminal laws follows from their status as sovereign political entities. This authority includes, but is not limited to, the power to regulate the conduct of individuals within the tribal government's jurisdiction, the power to determine domestic rights and relations, the power to dispose of non-trust property and to establish rules for inheritance, the power to regulate commercial and business relations, the power to raise revenues for the operation of the government through taxation, and the power to administer justice through law enforcement and judicial branches.

Tribal authority, as noted above, has been limited from time to time by actions of the Congress and by actions of the states exercising federally delegated powers. Tribal authority also can be limited by tribal action. Many tribal constitutions expressly limit tribal legislatures or courts.

Although federal statutes control most aspects of trust or restricted Indian property inheritances, tribal laws prescribing the manner of descent and distribution of such property have been recognized. As an attribute of property control, tribal authority to regulate land use through zoning also has been upheld. Tribal authority to levy taxes has been recognized in a variety of circumstances, including license and use fees, property taxes, sales taxes, and, most recently, mineral extraction or severance taxes.

Power To Administer Justice

The maintenance of law and order on the reservation is another element of tribal government that has been upheld firmly by the courts. Tribal criminal jurisdiction has been limited statutorily in terms of sentencing power (Indian Civil Rights Act limits fines to $5,000 and imprisonment to one year) and has been denied as applied to non-Indians since the Supreme Court's 1978 decision in Oliphant v. Suquamish Indian Tribe. Tribes nevertheless possess broad authority to administer civil and criminal justice in Indian Country.

Most tribal court systems have borrowed quite extensively from Anglo-American court systems. Many have developed quite extensive rules of procedure and evidence. On the other hand, Indian tribal courts also rely on tribal traditions and often look to informal methods of dispute resolution. Some tribal courts have asserted jurisdiction to review actions of tribal governing bodies. A number of reservation courts still operate as "Courts of Indian Offenses," which are administrative courts established by the Secretary of the Interior rather than by the tribe.

Many tribes have created law enforcement departments. Tribal governments employ police officers with contracted federal funds under the Indian Self Determination Act of 1975 and with funds appropriated by the tribe.

Power To Exclude Persons From The Reservation

The power of Indian tribes to exclude persons from their territory, which is provided for specifically in a number of Indian treaties, has been recognized as an inherent attribute of sovereignty. This exclusionary power has been treated as a distinct right of sovereignty and given prominent recognition as a fundamental means by which Indian tribes can protect their territory against trespassers. The power to exclude persons is not unlimited, however, and non-members who hold valid federal patents to fee lands within the reservation cannot be denied access to their property. Roads constructed on the reservation with federal funds are required by federal regulation to be kept open to the public. Also, tribes may be required to give access to federal officials providing services to the tribe or its members.

Power To Charter Business Organizations

The power to charter business organizations is yet another aspect of sovereign power. Indian tribes possess the authority to establish, through charter or otherwise, business organizations for the purpose of managing tribal assets. Tribally chartered enterprises hold the same status as the tribe itself for purposes of federal income tax exemptions and sovereign immunity from suit. A tribe can waive such immunity to the extent of the non-trust assets placed in the tribal corporation.

Tribes, like states, also can charter private corporations under tribal law and regulate their activities. The tribally issued corporate charters discussed here should be distinguished from the power of the Secretary of the Interior, under 25 U.S.C. � 477 of the IRA, to issue federal corporate charters to IRA tribes for the purpose of conducting business. Tribes may waive sovereign immunity as to the assets of such IRA corporations but tribal assets not held by the corporation remain protected by immunity.

Sovereign Immunity

Indian tribes, like other sovereigns, cannot be sued without an "unequivocally expressed" waiver of sovereign immunity. In the case of tribes, the consent to suit can come from Congress. It is unclear whether tribal consent provisions in business contracts are sufficient, without congressional approval, to allow suit. A recent decision suggests that tribes probably possess authority to waive sovereign immunity. Tribal sovereign immunity does not extend to tribal officials acting outside of their official capacity.

2. Forms And Structures Of Tribal Governments

Consistent with their traditional pasts, many contemporary Indian Nations have democratic governments which have combined aspects of their traditional styles and institutions with common western forms. Some, like the Pueblos of New Mexico maintain theocratic forms of government. Others, like the Gila River Indian Community resemble most closely parliamentary systems in which the legislative and executive functions are interrelated. Still others like the Navajos and some of the Five Civilized Tribes have a governmental organization which operates through a system of separate Tribal councils, Tribal executives, and Tribal courts.

It is not uncommon to hear modern Tribal governments being referred to as "traditional" or "non-traditional" or "progressive." It is difficult to make simple generalizations about the differences between these in a contemporary setting. Basically, however, traditional Tribal governments are those where the political leaders are selected by clans, family trees, or religious laws. These leaders, who in some Tribes serve for life, are usually chosen by consensus rather than through elections. Non-traditional governments, on the other hand, generally choose their political leaders through democratic elections.

While few strictly traditional Tribal governments exist today, many so-called non-traditional governments have maintained an informal network of traditional leaders. These traditional leaders in many cases still exert a great deal of influence on both the social and political affairs of an Indian Nation.

3. Tribal Government Jurisdiction

The exercise of tribal jurisdiction over non-Indians has been one of the most emotional issues in Indian affairs during the modern era. In 1978 the Supreme Court held in Oliphant v. Suquamish Indian Tribe that tribes could not exercise criminal over non-Indians, unless authorized to do so by Congress. The controversy continues in a slightly different form today as tribes increasingly exercise modern governmental authority in civil contexts such as taxation and land use control. Federal courts give deference to tribal forums when it comes to ruling on the issue of tribal authority; the determination as to whether tribal jurisdiction exists is normally a matter to be decided first by the tribal courts, with federal courts having authority to act in a review capacity.

a. Indian Country (18 U.S.C. � 1151) -- Criminal, Civil And Regulatory Jurisdiction

The term "Indian Country" is often confused with the term, "Indian Reservation." An Indian reservation is simply land, set aside for a tribe or tribes. Indian country, on the other hand, is a significant legal term and, broadly speaking, refers to all the land under the supervision of the United States government that has been set aside primarily for the use of Indians. This includes all Indian reservations as well as any other areas under federal jurisdiction and designated for Indian use. As a general rule, statejurisdiction does not extend to Indian country and, instead, tribal and federal law governs.

[T]he term "Indian Country" is defined in 18 U.S.C. � 1151 and includes:

(a) all land within the limits of any Indian Reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, notwithstanding rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Although "Indian country" is defined in a criminal law, the concept of Indian county also applies to civil cases. Court cases have made clear that Indian trust lands also fall within the definition of Indian country. Thus, Indian country includes Indian Reservations, dependent Indian communities, Indian allotment lands, and trust lands.

b. Types Of Lands In Indian Country Subject To Tribal Jurisdiction

i. Reservations

Indian country includes all lands within the boundaries of an Indian reservation, regardless of ownership. Thus, the general rule is that even land located within the exterior boundaries of a reservation but owned by a non-Indian is Indian country. For the purposes of federal Indian law jurisdictional rules, the Supreme Court has construed Section 1151 (a) to mean "formal" reservations and "informal" reservations. Formal reservations are those withheld from sale by tribal governments or set aside as a reservation by legislative or executive action. Informal reservations, a judicially created term, are parcels of tribal trust land that are remnants of former formal reservations or that were set aside by legislative or executive action, but which action did not actually use the term "reservation."

ii. Dependent Indian Communities

Dependent Indian communities are those area of land which have been set aside by the federal government for the use, occupancy or benefit or Indians, even if it is not part of a reservation. Most dependent Indian community claims are in former reservation areas or areas adjacent to existing reservations. Examples include the New Mexico Pueblos, which hold their land in fee simple, tribal housing projects located on federal lands, and federal schools operated for Indian children on federal lands. Note that predominant Indian use will not, by itself, create a dependent Indian community. There must also be some evidence of federal or tribal control or supervision and an indication that the federal governinent intended to set aside the area for such use.

Rancheria

The small land holdings that the Indians of California hold are now sometimes called rancherias because of the historical background from the days of the occupation by the Spanish and Mexican governments. The Spanish made their claim to California in 1542 but colonization did not effectively begin until 1769 with the establishment of the mission San Diego de Alcala. Spanish policy had placed Indians under the control of individuals in the encomienda system who pledged military service to the crown, instruction in Christianity, protection to the Indians, and maintenance of the Church and the clergy. Under the reduction system, Indians were to be placed in isolated missionary communities under the supervision of the clergy. The estates of the nobility and the church were ranches or rancherias. In 1836, the missions were to be secularized and the communities were to become Indian towns. When the United States acquired California in the Mexican War (1846-48), the bands of Mission Indians had to face a new legal system. The result was 18 treaties negotiated in 1853 which the Senate did not ratify. In an 1875 executive order, reservations were created and many of the Indians relocated there. In 1890, the Mission Relief Act was passed to provide some additional lands to California Indians.

Colony

The concept of "Indian colonies" was designed to promote assimilation of tribal members into the non-Indian society. It was believed that the Indian residents of these colonies could find employment in the nearby non-Indian communities. Colonies were most often established in Nevada and California to provide land where Indians could be permanently located and build adequate housing. Colonies, like Indian communities, are often considered to be "Indian country."

iii. Allotments

Section 1151 also includes all allotments of land, whether or not these allotments are inside a reservation. Allotments are parcels of land, typically 160 acres, that are held in trust by the federal government for individual tribal members, or held in fee by tribal members but subject to federal restrictions on alienation. Many treaties provided for allotments, but most allotments were created under the General Allotment Actg of 1887 and under tribe-specific allotment acts. Most allotments are located within existing Indian reservations, or within former reservation areas. For purposes of federal Indian law jurisdictional rules, the Supreme Court has held that trust and restricted allotments are the equivalent of "formal" reservations.

iv. Other Trust Lands

Significant portions of Indian land are held in trust for the Indian tribes by the federal government. Within these trust lands, Indians were said to hold the beneficial title and the United States held the fee simple title. These lands are sometimes referred to as trust lands. Trust lands are part of Indian country. Thus, even if the federal government has disestablished a tribe's reservation but trust land still exists, either tribally or communally held, this trust land is Indian country.

As trustee, the United States is obligated to use its integrity and ability to look after the best interests of the tribal members. Part of the protection provided by the trust relationship includes protecting the land interests of the tribes. In many instances, the federal government also remains the trustee for allotted lands. In purchasing land from the Indian tribes through use of the treaties, the U.S. government committed itself to providing certain services to the Indians as part of the payment for the land. Depending on the particular arrangements, these services sometimes included support for Tribal government, as well as education, social and medical services. Trust obligations continue today.

c. Other Types Of Indian Property Interests (Limited Tribal Jurisdiction)

i. Treaty Rights

Indians in Indian Country normally can exercise hunting and fishing treaty rights free of state control. Several cases have considered the question of whether non-Indians hunting and fishing on the reservation with tribal licenses are required to also purchase state licenses. This issue is similar to that of dual taxation: if non-Indians are required to pay double license fees (often very substantial for deer and elk), they may not come to the reservation at all, thus crippling tribal recreational programs. The federal courts generally have struck down the state license fees. In its 1983 decision in New Mexico v. Mescalero Apache Tribe, the Supreme Court upheld the exclusive authority of the tribe to regulate non-Indian hunting and fishing on the reservation.

ii. Fee Lands

In the property law of the United States, it is possible to hold several different types of interests in land or real property. If a person holds or own lands in fee simple this means that he has unqualified ownership in the land and, within the limits of the law has the power to utilize the land as he pleases. This fee simple ownership is described as legal title. Fee simple land must be distinguished from Trust land. Both fee simple and trust land can exist within a reservation.

Non-Indian Fee Land

Despite the language in Section 1151 (a) providing that Indian country includes "all land within the limits of any Indian reservation ... notwithstanding the issuance of any patent. . ., " the Supreme Court has held that land within an Indian reservation that has been patented in fee and is owned by non-Indians is not like Indian trust land. For purposes of tribal civil jurisdiction over non-Indians on the non-Indian fee land, the Court has determined that tribal sovereignty has been divested.

There are exceptions to the general rule, however. A tribe may have jurisdiction over non-Indians on the non-Indian fee land if the Supreme Court's "tribal interest test" is met. This test is met when: (1) there is a "consensual relationship" between the non-Indian and the tribe or a member of the tribe; or (2) the non-Indian's conduct threatens or directly affects the tribe's political integrity, economic security, or health and welfare.

Indian Fee Land

Non-trust allotments, land that the federal government has given to an Indian with full rights of ownership, as opposed to a trust allotment for example, is considered Indian country for as long as the allottee retains ownership. This is true even if the allotment is outside of a reservation.

iii. Ceded Territories

Many tribes have retained treaty rights to hunt, fish, and gather other resources in off-reservation territories which were once their own but which the tribes ceded to the United States in exchange for peace or protection. Like the treaties which guaranteed them, these rights are part of the "supreme law of the land." The federal government's trust responsibility includes protecting treaty rights whether on or off reservation. Although the exact nature of a federal agency's trust responsibility regarding a tribe's treaty right in ceded territory has never been defined by a court, related case law suggests that federal agencies have some such duty. This duty most likely includes an obligation that agency and/or agency-approved programs are implemented in such a way as to protect tribal treaty rights.

iv. Usual And Customary Usage/Rights

In the Pacific Northwest, many treaties provide for off-reservation fishing nights: they often guarantee the "right of taking fish, at usual and accustomed grounds and stations . . . in common with all citizens of the territory." The states have argued that the treaty provisions allow tribes access to their usual and accustomed places, but permit no special rights beyond that. The tribes have argued that "in common with" guarantees them half of the resource. In the "Boldt decision," a federal district court judge in the state of Washington ruled that the tribes possess the right to harvest up to 50 percent of the salmon and steelhead at their off-reservation sites. Sit-ins and demonstrations by vocal non-Indians, including sports and commercial fishermen, followed. On several occasions, the federal courts openly criticized the state of Washington for disobeying the Boldt decision. Finally, the case went to the Supreme Court, which, in Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979), upheld almost all aspects of the Boldt decision. The controversy continues in numerous enforcement actions on individual rivers in the state of Washington. In the Great Lakes, similar off-reservation fishing rights were adjudicated even though the treaties made no reference to off-reservation fishing.

v. Alaskan Native Lands

The approximately 226 Alaska Native tribal governments recognized by the Bureau of Indian Affairs have the same political status with the federal government as the continental tribes. They also have social and political organizations fairly similar to those of the tribes of the lower 48. They are sovereign entities with all the attendant inherent powers and they receive a variety of federal services.

One historic difference between Alaska Natives and tribes of the lower 48 is that the reservation system was used far less in Alaska. The sovereign Alaska Native tribal governments include those organized under the Indian Reorganization Act of 1934, and those that have remained traditional, typically having been recognized by the federal government.

In 1971, Congress passed legislation extinguishing the aboriginal title held by the Alaska Natives collectively and provided compensation for it through the Alaska Native Claims Settlement Act. This Act did not diminish their political relationship with the federal government. Since the passage of the Act, however, some people confuse the sovereign tribal governments with the regional and native village corporations established under the Act. The Settlement Act extinguished the aboriginal title, but did not eliminate the sovereign status of the original tribal governments. The Act reserved fee title to 44 million acres of land for management by the regional and village corporations and paid $962,550,000 to the same corporations in compensation for the rest of the lands that were taken by the United States and the State of Alaska.

Twelve regional State-chartered corporations received subsurface rights to land held by the more numerous native village State-chartered corporations. The Alaska Natives are the shareholders in both types of corporations. Although natives are included in tribal governments, councils, and village and regional corporations, only the first two are capable of exercising residual sovereign powers.

C. Approaches to the Government-to-Government Relationship

1. Forms Of Government-To-Government Agreements

a. 638 Contracts

The most common form of government-to-government agreement between the United States and an Indian tribe is a contract under the Indian Self-Determination Act, Pub. L. 93-638, known as "638 contract." Under this arrangement, a federally-recognized Indian tribe can assume the operation of certain federal programs on a program-by-program basis, and receive the funds that the government would have otherwise spent running the program itself. Comprehensive regulations implementing the Self-Determination Act became effective on August 23, 1996, after extensive negotiations between tribal and federal representatives.

Although 638 contracts are usually for BIA or IHS programs, they also can be used for certain other programs of the Departments of the Interior, Transportation, Education, etc., operated for the benefit of Indians.

Under the Act, a tribe can redesign a federal program for more effective exercise of tribal sovereignty and tribal priorities, and include program standards that may not comply with federal regulations, but otherwise meet the legal requirements of the Act. If the tribe realizes a savings by operation or redesign of a program, it may keep the savings and use it for other tribal purposes.

b. Self-Governance Compacts

The Self-Governance program is closely related to the 638 program, except that a tribe agrees, or "compacts," to take over the operation of groups of federal programs in return for operational funding. Once a tribe enters the Self-Governance program, it negotiates a formal government-to-government compact with the federal government. A compact is primarily a political document that establishes the framework for the tribal/federal relationship for an indefinite period of time. In addition to the compact, the parties must negotiate an Annual Funding Agreement detailing specific federal programs the tribe will assume and the amount of funding it will receive.

Under the Self-Governance program, an Indian tribe can, within certain limits, reprogram funding from one program to another to reflect changing tribal priorities, or request a waiver of program regulations where it would better serve the Indian community.

c. Procurement Contracts

d. Other Agreements. (e.g., Cooperative Agreements Grants, Memoranda Of Understanding, Memoranda Of Agreement, Protocol Agreements)

A Procurement Contract is the "legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when - (1) the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; or (2) the agency decides in a specific instance that the use of a procurement contract is appropriate."¹

A Cooperative Agreement is the "legal instrument reflecting a relationship between the United States Government and a State, a local government, or other recipient when - (1) the principal purpose of the relationship is to transfer a thing of value to the State, local government, or other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government; and (2) substantial involvement is expected between the executive agency and the State, local government, or other recipient when carrying out the activity contemplated in the agreement."²

A Grant denotes "money, or property provided instead of money, that is paid or provided by the United States Government under a fixed annual or total authorization, to a State, to a local government, or to a beneficiary under a plan or program administered by a State or a local government that is subject to approval by an executive agency, if the authorization - (i) requires the State or local government to expend non-Government money as a condition of receiving money or property from the United States Government; or (ii) specifies directly, or establishes by means of a formula, the amount that may be provided to the State or local government, or the amount to be allotted for use in each State by the State, local government, and beneficiaries." Grant also includes "money, or property provided instead of money, that is paid or provided by the United States Government to a private, nonprofit community organization eligible to receive amounts under the Community Services Block Grant Act (42 U.S.C. 9901 et seq.)."³

Memoranda of Understanding are documents that outline mutual interest in specific areas between parties. They provide general understanding and guidance and are an agreement to pursue activities of mutual interest. No funding is involved.

_________________
¹31 U.S.C. 6303.
²31 U.S.C. 6305.
³31 U.S.C. 6501.

2. Protocols For Government-To-Government Consultations

There is not one set of rules that can agency management and staff to successful interactions with tribes. Rather there are general considerations which should be reviewed before communicating with tribes and/or visiting Indian Country. Various organizations within an agency may wish to put into place guidelines on protocol. These guidelines would cover such items as who should call the Tribal Chair, who should be contacted at a reservation before an agency representative visits, who should sign correspondence with a tribe, and how tribal/agency meetings should be conducted.

Problems sometimes arise in situations in which non-Indians are interacting with tribes, and the following facts exist: 1) the non-Indian has inaccurate knowledge about Indian-U.S. history; and 2) both sides fear unknown factors regarding the other. It is therefore important to have open communication between tribal and state and federal government representatives. With better communication, better understanding and partnerships will result.

While all tribes are unique and differ in leadership and the stage of development of their governmental and economic infrastructure, they still can be approached. What is most important for non-Indians to do is to approach all tribes with respect and sincerity about forging a relationship.

The Environmental Protection Agency is a federal agency that regularly works with Indian tribes. Its staff offers the following reflections on their experiences interacting with tribes:

• Some tribes have two tiers of government (legal/political and traditional/actual). In other words, the titular head is not always the decision-maker. This is particularly true with more traditional governments such as the Pueblos.
• Indian people have been hurt by government initiatives so many times before that they are often skeptical of new proposals. Relationship building, education, and time are needed to overcome this.
• Some agencies have their has its own culture that can impede communication when others don't understand the vocabulary, the philosophy and/or the methods.
• It is important to remember that environmental protection issues are not the only areas of concern tribal governmental leaders face. Most tribal governments deal with significant unemployment, education, health, welfare, jurisdictional, etc. issues. Additionally, keep in mind that in many instances, tribal governments are under-staffed.
• Indian leaders (particularly tribal chairmen, chiefs, governors, Presidents) are extremely concerned about the lives of their people on a micro level. It is not uncommon for a leader to sit by the bedside of a terminally sick member and deal with members on a family or individual level. This concern often results in differences between tribal, state, and federal standards regarding government approved risk. For example, while EPA may find 1/1,000 is an acceptable risk to Indian people, each member of a small tribe is vitally important and therefore, the tribe may find the EPA risk standard unacceptable.

CHAPTER IV.

ENVIRONMENTAL REGULATION IN INDIAN COUNTRY

A. Overview of the EPA Policy for the Administration of Environmental Programs on Indian Reservations

Over the last ten years, EPA has developed a strong tribal program. The Agency's Policy for the Administration of Environmental Programs on Indian Reservations (Indian Policy), issued in 1984 and reaffirmed in 1994, recognizes the government-to-government relationship between the Agency and tribal governments, the Agency's trust responsibility, and recognizes tribes as the most appropriate party for regulating tribal environments where they can demonstrate the authority and capability to do so. EPA serves federally-recognized tribes, but in some instances may also provide funding and technical assistance to non-federally recognized tribes through the Environmental Justice program.

EPA has the authority to approve tribal management of federal programs under most environmental statutes. These statutes originally did not explicitly allow for authorization of tribal programs. During the 1980's several of EPA's statutes were specifically amended requiring the Agency to promulgate regulations for tribes to receive program authorization. These amendments, coupled with the Agency's 1984 Indian Policy, have allowed tribes to become increasingly included in EPA's programs and operations. In addition, the Agency has noted that under several statutes where Congress did not directly address the issue of whether EPA can approve tribal programs, EPA nonetheless has used its administrative discretion to review and approve such programs.

When sifting through the environmental statutes and regulations, and reviewing the laws and court decisions, the following are the general principles for implementing EPA's programs in Indian Country (it is cautioned that various federal statutes may use or define terms (e.g., reservations) that will control the applicability of a particular statute in Indian Country):

• EPA has been granted authority by Congress to ensure that environmental programs designed to protect human health and the environment are carried out across the United States.
• Both states and tribes may apply for environmental programs subject to conditions such as possession of regulatory authority or delegation of federal authority.
• Consistent with federal Indian law and federal policy, tribal governments generally have regulatory authority over environmental quality in Indian country.
• Generally, in the absence of an EPA approved tribal program in Indian country, the federal government has the authority to implement a federal program.
• EPA has a federal trust responsibility in implementing federal environmental statutes.

B. Delegation of Federal Authority/Authorization of Tribal Programs Under Federal Environmental Statutes

1. Statutes With Express "Treatment As A State" Language

In order for tribes to assume many of EPA's major grant or regulatory programs, they generally must go through a process entitled "Treatment in the Same Manner as a State" (TAS). TAS was first put into place through the 1986 and 1987 Amendments to the Safe Drinking Water (SDWA) and Clean Water Acts (CWA). These amendments called on the Agency to develop a process by which tribes could apply for grants and program authority. EPA established a TAS process for eligibility under various programs according to the criteria identified in SDWA and CWA. In 1990 Congress included similar provisions in the Clean Air Act Amendments. Generally the criteria are as follows:

• The tribe must be federally-recognized.
• The tribe must have or be able to exercise substantial governmental powers.
• The tribe must have jurisdiction over the area in question.
• The tribe must have the financial, physical and human resource capability to effectively implement a program.

In the initial years after establishing the TAS process, many tribes and EPA staff found the process to be overly burdensome. EPA has increasingly improved its own capacity to help tribes meet those eligibility requirements, and, in 1994, EPA developed a "TAS Simplification Rule". Under this rule, EPA eliminated the need to meet all four criteria each time the tribe applies for a program. Once a tribe has been deemed eligible for one EPA program, it need only establish that it has jurisdiction and capability for each subsequent program. If the tribe does not have capability, it must have a plan for acquiring capability over time. This is required because each program may require different skills and activities to provide protection that meets the requirements of specific statutes and regulations.

Treatment-As-States, the original term for the process, was changed to "Treatment in the Same Manner as a State" in response to tribes objecting to the original phrase. Many tribes commented that they are not "States;" rather, they have a unique government-to-government relationship with the United States government.

EPA statutes which have been amended specifically to allow for EPA authorization of tribal programs:

• Safe Drinking Water Act, 1986
• Clean Water Act, 1987
• Clean Air Act, 1990

2. Examples Of Statutes Without Express Treatment As A State Language

In several instances, EPA has reasoned that even though Congress hasn't specifically provided for tribal assumption of environmental programs in legislation, the Agency has the discretion to allow for tribal programs. One such act where the opportunity to apply for environmental programs has been extended to Indian tribes by this method is the Toxic Substance Control Act (TCA) for the purpose of certifying lead abatement control programs.

Also, in the Resource Conservation and Recovery Act (RCRA), Congress did not specifically provide for tribal assumption of solid and hazardous waste programs. However, in Backcountry Against Dumps v. EPA, the court found that RCRA did not authorize EPA to administratively extend the program authorization to tribes similar to what the Agent had done under TCA. Thus, in order to allow municipal solid waste landfills (MSWLF) in Indian country the same flexibility in design and operating requirements as landfills under approved state programs, the Agency issued guidance for operators of MSWLF in Indian country.

In addition, other EPA statutes allow for a limited tribal role similar to the state's role. These include the Federal Insecticide, Fungicide, and Rodenticide Act.

3. Challenges To These Programs From State And Local Governments And Non-Indian Residents In And Adjacent To Indian Country

As EPA and the tribes are beginning to more actively manage tribal environments, some states, local governments, private industries, and individuals are beginning to challenge both federal and tribal authority under the various federal environmental statutes.

EPA, however, has been vigorously defending these authorities and recently, the Supreme Court denied certiorari in the City of Albuquerque v. Browner. This decision leaves in place the 10th Circuit opinion, which held: 1) that the City of Albuquerque had, to comply with the Pueblo of Isleta's downstream water quality standards even though they are more stringent than the federal requirements; 2) that the approval of a water quality standard based on ceremonial use was not in violation of the Establishment Clause of the First Amendment; and 3) that EPA's procedures for approving tribal water quality standards were not arbitrary or capricious or otherwise contrary to law. This decision marks a significant victory for the Pueblo of Isleta, EPA, and tribal authority generally to protect tribal water quality under the Clean Water Act.

Most of the challenges, like that brought by the City of Albuquerque, are brought by states or local governments over EPA approvals of tribal programs, and often directly challenge tribal regulatory jurisdiction. The central question raised by many of these lawsuits is the sensitive, highly political question of tribal jurisdiction over nonmember pollution sources on reservation fee lands. This in turn implicates the continuing validity of the second exception under the Montana test, which holds that:

A tribe may ... retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or I has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

The continuing validity Montana is of central importance to EPA, as well as to the tribes, because the effective administration of EPA Programs depends upon a reasonable and sufficiently clear rule of law for determining civil regulatory jurisdiction in Indian Country.

In July 1991, EPA published an anti-checkerboarding policy, known as the Concept Paper, that calls for a single, lead government to regulate all pollution sources within reservation boundaries. This policy sought to avoid the administrative burdens and environmental harms that flow from the checkerboarding of reservations into political subdivisions of fee and trust lands, with the undesirable consequence that different governments might be called upon to regulate closely co-mingled plots of lands distinguished only by real estate ownership.

Rather than allocate regulatory responsibilities along lines of real estate ownership or political membership, EPA concluded that sound regulatory practice requires that only one government should have the primary enforcement responsibility within the political boundaries of a given reservation. This view, that reservation environments should be regulated as a unified territory by a single, lead government, has the consequence that tribal governments must show jurisdiction over nonmember polluters on their reservations.

In 1991, upon reviewing the implications of Brendale v. Confederated Tribes and Bands of Yakima Nation, EPA decided, as a matter of prudence, to use a slightly modified version of the Montana test for determining jurisdiction over no member polluters. This "interim operating rule" requires the tribe to demonstrate that the effects of nonmember pollution sources have a serious and substantial impact on tribal health or welfare.

Although EPA continues to use this "interim operating rule," we are encouraged by the Supreme Court's recent reaffirmation of the Montana test in Strate v. A -I Contractor, we are currently arguing the implications of Strate in the 9th Circuit in Montana v. EPA, where the state is challenging EPA's approval of the Confederated Salish and Kootenai Tribes' authority to set water quality standards affecting nonmembers.

Also in 1991, the Agency found with regard to the second exemption under the Montana test, that as a general matter, the behaviors regulated under the EPA statutes are behaviors which, by their nature, may have serious and substantial effects on human health and welfare.

As the first tribes have submitted their applications for program approval under the federal environmental statutes, EPA's assumptions and tribal jurisdiction have been attacked both by nonmember residents of reservations opposed to tribal governance and by a number of states who are in competition with tribes for control of the reservations.

C. Environmental Regulation in Indian Country And Exercises of Authority Under Federal And Tribal Law

Tribes can assume primacy for environmental programs in Indian Country. EPA, acting under the statutory authority provided by Congress, establishes standards relating to pollution and a system for enforcement of these standards, and upon request of a tribe or state, authorizes eligible tribes or states to establish and enforce its own or the federal environmental standards.

Tribal governments by virtue of their inherent sovereignty can exercise tribal authority to regulate their own affairs as well as activities occurring within their territory. Indeed, federal Indian law permits Indian governments to exercise a great deal of civil jurisdictional powers with respect to Indians and non-Indians.

As tribes move to develop enforceable environmental protection programs within Indian Country they typically undertake the following steps: 1. Establish the necessary statutory framework by passing tribal environmental codes; 2. Draft the necessary regulations; and 3. Establish an administrative body, if one does not already exist, which can ultimately seek tribal administrative or judicial sanctions to enforce the tribal law.

Currently, a significant number of tribal governments are regulating their resources and managing environmental programs. For example, as of September 1997, approximately 130 tribes had developed the capacity to implement 204 federal environmental programs. Additionally, 20 tribes have also been authorized by EPA under the Clean Water Act (CWA) to develop water quality standards and 12 tribes have developed tribal standards which have also been approved. Overall, many Tribes intend to eventually implement and assume enforcement responsibility for various EPA programs.

Within the last ten years, the EPA has seen a surge of tribal environmental activity. Several of the more significant tribal environmental efforts with the EPA include:

• Application for EPA program development grants
• Tribal employment of environmental technical staff
• Staff training provisions designed to enhance employee environmental capacity
• Acquisition of necessary equipment
• Adoption of necessary laws and codes, including Tribal Environmental Policy Acts
• Development programs designed to protect surface and drinking water, air quality, and land, through establishing solid waste management programs
• Tribal resources monitoring
• Construction and improvement of wastewater treatment facilities
• Development of Tribal/EPA Environmental Agreements.

A recent survey confirms this and found that both the tribes and the EPA are engaged in a wide variety of environmental protection activities on reservations, especially Clean Water Act programs designed to address water quality protection. However, the study also found that there still remain a large number of tribes which are not regulating water quality nor are they significantly involved in other projects to develop environmental programs. Tribes may or may not develop environmental programs for a variety of reasons (e.g., costs involved, technical expertise and assistance availability) where the tribes are not carrying out environmental programs, EPA retains the authority to implement these programs federally. Currently, EPA is developing strategies to help fill this gap in protection.

D. Direct Federal Implementation of Federal Environmental Statutes

Under many EPA programs, sates or tribes may apply for EPA authorization to assume program responsibilities. Given that environmental program responsibility requires capability and significant resources, tribes do not always find it beneficial to assume total responsibility for EPA programs. Based upon a variety of factors, often including program costs, availability of technical expertise and assistance, and maintenance costs, tribal governments may select certain prioritized activities, but may decide not assume an entire regulatory program. When tribes decide not to fulfill certain activities under EPA's programs or not to apply for entire programs, EPA directly implements the environment management programs.

The Agency's Indian policy clearly identifies Direct Implementation (DI) as a responsibility of the Agency until tribal governments are willing and able to assume full responsibility for delegable programs.

The following is an illustrative selection of some tools that are available for direct federal implementation:

• Establishment of federal environmental standards in consultation with the tribes and based on tribal needs and priorities.
• Issuance of federal permits to sources located in Indian Country.
• Enforcement and compliance assurance activities, including inspections of sources in Indian Country.
• Communications with tribes.
• Establishment of Tribal\EPA Environmental Agreements (TEAs) which identify tribal priorities and help with budget development.
• Development of Regional and National Environmental Work plans based on TEAs.
• Development of Regional strategies so that DI is consistent with tribal priorities.
• Training of management and regional staff.

E. Building a Government-to-Government Relationship and Strengthening Communications

1. EPA Policy For The Administration Of Environmental Programs On Indian Reservations (Indian Policy)

This Policy was first issued by EPA in 1984 and since reaffirmed by every subsequent Agency Administrator, including Administrator Browner in March 1994. The policy is intended to provide guidance to EPA staff and managers in dealing with tribal governments and in responding to the problems of environmental management on Indian reservations in order to protect tribal health and environments. In carrying out EPA programs, this policy "recognizes tribal governments as the primary parties for setting standards, making environmental policy decisions, and managing [environmental] programs ... consistent with Agency standards and regulations" for Indian reservations. As such, the policy calls on the Agency to respect the government-to-government relationship and "to give special consideration to tribal interests in making Agency policy." The policy also states that until tribal governments are willing and able to assume full responsibility for delegable programs, the Agency will retain responsibility for managing programs for reservations (unless the State has an express grant of jurisdiction from Congress sufficient to support delegation to the State Government).

This policy was accompanied by an Implementation Guidance which established the National Indian Work Group consisting of Indian Coordinators to be appointed in each of the Headquarters Program Offices and Regional Offices. In addition, the Guidance also formally placed responsibility for the implementation of tribal environmental programs in three EPA Offices which is where it remained until the establishment of the American Indian Environmental Office in October 1994.

2. Tribal Operations Committee

In order to improve communications and build stronger partnerships with the tribes, the Agency established the tribal Operations Committee (TOC) in February 1994. The TOC is comprised of 19 tribal leaders or their environmental program managers (the Tribal Caucus) and EPA's Senior Leadership Team, including the Administrator, the Deputy Administrator, and the Assistant and Regional Administrators. The TOC meets on a regular basis to discuss implementation of the environmental protection programs for which EPA and the tribes share responsibility as co-regulators. All tribes are encouraged to communicate with the members of the TOC tribal Caucus. Although the TOC is an important and effective vehicle for enhancing communications between EPA and the tribes, it is not a substitute for Agency consultation with individual tribes in accordance with the Administration policy of working with Indian tribes on a government-to-government basis.

3. Tribal/EPA Environmental Agreements

To build EPA's Indian Program in a manner consistent with tribal environmental priorities and EPA's statutory responsibilities, each of the Agency's Regional Indian programs are developing Tribal/EPA Environmental Agreements (TEAs) with all interested tribes. Designed by EPA as a means for collaborative decision-making between the Agency, tribal leaders, and environmental directors, TEAs describe the past and current condition of a Tribe's environment, the tribe's long-range environmental goals and near-term priorities for EPA assistance. These agreements are intended to assist the tribes and EPA in developing multi-year plans for tribal assumption of environmental programs and EPA direct implementation of environmental programs in Indian country. The Administrator's July 1994 Action Plan for the EPA Indian Program makes TEAs the cornerstone on which Regions and National Program Managers are to build their Indian Programs.

On March 20, 1995, AIEO issued a template providing flexible guidance on developing TEAs for the Regions and tribes. The Template identified the following guiding principles:

• As these Agreements are developed, all principles included in the Agency's Indian Policy shall apply. This includes recognition of a trust responsibility, government-to-government relationship, and tribal sovereignty.
• The government-to-government relationship shall be directly between the Agency and a specific tribe.
• The Agreement shall be implemented to promote stability in funding, employment, capacity building, infrastructure development, and other such factors that lead to long-term program implementation for the tribes.
• These Agreements are being developed with the understanding that the long-term goal is to address, implement, and maintain, where deemed necessary by the tribe, the full range of EPA's programs to protect public health and the environment.
• While implementing the Agreement, the Agency is committed to on going, timely and open communications with the tribe. All efforts will be made to provide timely advice on available grants and other sources of available funding, training and on going meetings that affect tribes. This also includes a timely transfer of state-of-the-art technology, such as computers and data systems, as the tribes seek to build capacity.
• This Agreement is intended to promote flexibility while addressing the needs of the tribe and can be revisited as appropriate to ensure common sense approaches.
• The principles of environmental justice shall apply to this Agreement. In general these principles call for the Agency to assure that tribes are afforded all opportunities afforded to States, including procedures for tribal participation in the Agency decision making process. In addition, environmental justice principles call for a recognition of tribal cultural concerns such as subsistence needs and traditional uses of natural resources.

The importance of the TEAs cannot be overstated. They are striking examples of the Agency's commitment to using community-based collaborative approaches to environmental protection.

4. EPA Region 8 Policy For Environmental Protection In Indian Country

EPA Region 8 issued this Policy in March 1996, to provide detailed guidance and information to the Region's managers and staff on how to implement EPA's Indian Policy. This guidance is intended to respond to and clarify questions that are most frequently raised by both internal and external Agency customers and constituents, relating to: 1) Agency protocol in working with federally recognized tribes; 2) Agency support of federally recognized tribal governments in building capacity to manage environmental programs; and 3) Agency positions on environmental program responsibilities and jurisdiction. This policy outlines procedures for developing a collaborative partnership with tribal governments, for example the policy requires the Region to seek tribal agreement before making decisions on matters that affect tribal environments and also sets up a formal dispute resolution process. Currently an Agency work group, including Region 9 as the lead region, Region 8, and the American Indian Environmental Office, is reviewing the Policy to identify components that could be implemented Agency-wide.

CHAPTER V.

SELECTED AUTHORITIES AND PROGRAMS

A. Executive Orders and Presidential Memoranda

1. Presidential Memorandum On Government-To-Government Relations With Native American Tribal Governments

This memorandum was signed in April 1994, "in order to ensure that the rights of sovereign tribal governments are fully respected." This memorandum is applicable to every department and agency and component bureau and office in the executive branch and is to be followed in all interactions with federally-recognized Native American tribal governments. The purpose of the memorandum is to clarify the responsibility of the federal government to operate within a government-to-government relationship with federally-recognized Native American tribes. Among other things, the memorandum specifically states:

The United States Government has a unique legal relationship with Native American Tribal governments as set forth in the Constitution of the United States, treaties, statutes, and court decisions. As the executive departments and agencies undertake activities affecting Native American Tribal rights or trust resources, such activities should be implemented in a knowledgeable, sensitive manner respectful of Tribal sovereignty.

2. Executive Order And Memorandum On Environmental Justice

Executive Order 12898 on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations and its accompanying memorandum were signed in February 1994. The order is designed to focus federal attention on the environmental and human health conditions in minority communities and low-income communities and to promote non-discrimination in federal programs substantially affecting human health and the environment. Specifically, section 6-606 of the order states that "each [f]ederal agency responsibility set forth under this order shall apply equally to Native American programs." The Order also specifically addresses subsistence consumption of fish and wildlife. The accompanying memorandum also specifically identifies the need for federal agencies to consider environmental justice implications when taking actions pursuant to the National Environmental Policy Act.

3. Executive Order On Sacred Sites

Executive Order 13007 was signed in May 1996, to promote accommodation of access to American Indian sacred sites by Indian religious practitioners and to provide additional protection for the physical integrity of such sacred sites. The Order applies to federally owned lands, except Indian Trust lands. This Order reflects the federal government's continuing commitment to the religious freedom of all Americans. The Order supplements the protections afforded by the American Indian Religious Freedom Act Amendments, the Religious Freedom Restoration Act, and the Presidential directive of April 1994, requiring executive branch departments and agencies to accommodate the need for eagle feathers in the practice of American Indian religion.

B. Statutes

1. General Authorities

National Environmental Policy Act of 1969 ("NEPA"; P.L. 91-190; 83 Stat. 852; 42 U.S.C. � 4321). Establishes national policy for protection and enhancement of the human environment. Part of the function of the Federal Government, as stated in the Act, is to "preserve important ... cultural ... aspects of our national heritage and maintain whenever possible an environment which supports diversity and variety of individual choice."

Federal Land Policy and Management Act of 1976 ("FLPMA"; P.L. 94-579; 90 Stat. 2743; 43 U.S.C. � 1701). Requires coordination with Indian tribes, as well as with other Federal agencies and State and local governments, in the preparation and maintenance of an inventory of the public lands and their various resources and other values; in the development and maintenance of long-range plans providing for the use of the public lands; and in the management of the public lands.

Alaska National Interest Lands Conservation Act of 1980 (P.L. 96-487; 94 Stat. 2371; 16 U.S.C. � 3101). Establishes various conservation system units in Alaska to preserve lands and waters with nationally significant values, including historic, archaeological, and cultural values. The Act directs that, consistent with the conservation of healthy populations of fish and wildlife, utilization of public lands in Alaska is to cause the least impact on rural residents who depend on subsistence uses of the resources of such lands. The Act also authorizes the Secretary, upon request, to advise, assist, and provide expertise to a Native corporation or group for preservation, display, and interpretation of cultural resources, and to provide training in identification, recovery, preservation, demonstration, and management of cultural resources.

2. Authorities Specific To Native Americans

Indian General Allotment Act of 1887 as amended (24 Stat. 389; 25 U.S.C. � 334). Provides for the allotment of lands to individual Indians for the purpose of settlement and subsistence through pastoral pursuits. Similar provisions were made for Alaska Natives in a 1906 Act (P.L. 59-171; 34 Stat. 197; 48 U.S.C. �357).

Indian Reorganization Act of 1934 (P.L. 73-576; 48 Stat. 984; 25 U.S.C. � 461). Establishes tribal self government for many Indian communities. The Act further provides for the adoption of tribal constitutions and the incorporation of tribal governments. Tribal governments, so constituted, have primary jurisdiction over the lands of the tribe and are empowered to negotiate with Federal, State and local governments in all matters affecting the tribe. Pursuant to this Act, tribal governments are judicially considered to hold sovereign immunity in all governmental matters affecting the tribe.

Alaska Native Claims Settlement Act of 1971 (P.L. 92-203; 85 Stat. 688; 43 U.S.C. � 1601). Establishes a "fair and just settlement of all claims by Natives and Native groups in Alaska, based on aboriginal land claims," with the settlements to be "accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives. . . [and] with maximum participation by Natives in decisions affecting their rights and property . . . ."

Indian Self Determination and Education Assistance Act of 1975 (P.L. 93-638; 88 Stat. 2203; 25 U.S.C. � 450). Provides direct and primary authority to tribal governments to contract and regulate programs and services, and also provides authority for tribal governments to acquire lands adjacent to reservations for purposes of the Act.

American Indian Religious Freedom Act of 1978 ("AIRFA"; P.L. 95-341; 92 S Stat. 469; 42 U.S.C. � 1996). Resolves that it shall be the policy of the United States to protect and preserve for the American Indian, Eskimo, Aleut, and Native Hawaiian the inherent right of freedom to believe, express, and exercise their traditional religions, including but not limited to access to religious sites, use and possession of sacred objects, and freedom to worship through ceremonial and traditional rites. Federal agencies are directed to evaluate their policies and procedures to determine if changes are needed to ensure that such rights and freedoms are not disrupted by agency practices. The Act, a specific expression of First Amendment guarantees of religious freedom, is not implemented by regulations. (Note: A U.S. Court of Appeals has determined that there is a compliance element in the American Indian Religious Freedom Act, requiring that the views of Indian leaders be obtained and considered when a proposed land use might conflict with traditional Indian religious beliefs or practices, and that unnecessary interference with Indian religious practices be avoided during project implementation, but specifying that conflict need not necessarily bar federal agencies from adopting proposed land uses in the public interest. Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983)).

Indian Mineral Development Act of 1982 (P.L. 97-382; 96 Stat. 1938; 25 U.S.C. � 2101). Provides authority to Indian tribes to develop mineral resources, and to enter into joint venture agreements, operating agreements, and leases. The Act conveys and extends tribal authority to regulate and cooperate with private and governmental entities in the development of tribal energy and non-energy mineral resources. Related authorities that give BLM direct involvement in mineral operations on allotments and tribal lands, respectively, include the Act of March 3, 1909, as amended (P.L. 60-315; 35 Stat. 783; P.L. 84-255; 69 Stat. 540; 25 U.S.C. � 396), and the Act of May 11, 1938 (P.L. 75-506; 52 Stat. 347; 25 U.S.C. � 396a).

Native American Graves Protection and Repatriation Act of 1990 (P.L. 101-601; 25 U.S.C. � 3001). Provides federal agencies must consult with appropriate Indian tribes or individuals prior to authorizing the intentional removal of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The purpose of NAGPRA consultation is to reach agreement as to the treatment and disposition of the specific kinds of "cultural items" as defined in the Act. The Act further provides for consultation pertaining to existing collections to identify and assure disposition of materials in a manner consistent with the desires of lineal descendants or the appropriate tribal authorities.

Indian Law Enforcement Reform Act of 1990 (P.L. 101-379; 104 Stat. 473). Provides for the clarification and enhancement of law enforcement authorities in Indian country and for the development of agreements with State, tribal, and other Federal agencies to perform law enforcement services.

3. Related Cultural Resource Statutes

National Historic Preservation Act of 1966 (P.L. 89-665; 80 Stat. 915; 16 U.S.C. � 470). Addresses preservation of historic properties, including historical, archaeological, and architectural districts, sites, buildings, structures, and objects that are eligible for the National Register of Historic Places. In some cases such properties may be eligible partly or wholly because of historical importance to Native Americans, including traditional religious and cultural importance. Federal agencies must take into account effects of their undertakings on eligible properties. A 1980 amendment to the Act (P.L. 96-515; 94 Stat. 3000; 16 U.S.C. � 470a note) directs the Secretary in cooperation with the American Folklife Center of the Library of Congress to explore ways to preserve and conserve intangible elements of our cultural heritage and to encourage continuation of diverse cultural traditions.

Archaeological Resources Protection Act of 1979 (P.L. 96-95; 93 Stat. 721; 16 U.S.C.� 470aa). Provides for the protection and management of archaeological resources, and specifically requires notification of the affected Indian tribe if archaeological investigations proposed in a permit application would result in harm to or destruction of any location considered by the tribe to have religious or cultural importance. The Act directs consideration of the American Indian Religious Freedom Act in the promulgation of uniform regulations for the Act.

American Folklife Preservation Act of 1976 (P.L. 94-201; 86 Stat. 1129; 20 U.S.C. � 2101). Creates the American Folklife Center in the Library of Congress and directs the Center to preserve and present American folklife through internal and cooperative programs.

C. Court Decisions

1. The Marshall Trilogy

Domestic Dependent Nations

Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543 (1823). Chief Justice Marshall held that as the successor to England, the original discoverer of the area in question, the United States had acquired the preemptive right to procure Indian land by purchase or conquest according to the Doctrine of Discovery, thus, title obtained through a direct grant by an Indian tribe to a private individual could not prevail against title obtained by means of a patent of land acquired by the government from the same tribe.

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Cherokee tribe is a state in the sense that it is a "distinct political society," but is not a foreign state within the meaning of Article III of the Constitution. It is more like a "domestic dependent nation" with the relation of the tribe to the Federal government like that of "ward to guardian."

Tribes Are Separate Nations Within A Nation

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). State law could not interfere with the relations established between the Federal government and the tribes, and that attempts to do so were 11 repugnant." Tribes, as nations, were "claiming and receiving the protection of one [nation] more powerful. "

2. The Trust Relationship

Most Exacting Fiduciary Standards Affirmation Trust Obligation

Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942). The Court held officials of the United States were to be held to the "most exacting, fiduciary standards" in performing their duties toward American Indians.

"Care And Skill" Of The Trustee

United States v. Mason, 412 U.S. 391 (1973). The trustee must "exercise such care and skill as a person of ordinary prudence would exercise in dealing with his or her own property." If this is done, there is no liability.

Indian Lands Are Not Public Lands

Lane v. Pueblo of Santa Rosa, 249 U.S. 103, 109-10 (1919). The Secretary was enjoined from disposing of tribal lands under general public land laws; to do so "would not be an exercise of the guardianship, but an act of confiscation."

Protect Trust Corpus From Harm: Undertaking With Indians Are To Be Liberally Construed To The Benefit Of The Indians

Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D.C., 1972). Certain diversions of water for a federal reclamation project adversely effected a downstream lake on an Indian reservation which, while violating no specific statute or treaty, violated the trust responsibility through not protecting them from harm. "Where management of waters stored in reservoir would have effect on amount of water received by lake in reservation on which Indian tribe depended for their livelihood, ambiguous contract between the Bureau of Reclamation and the United States Forest Service with respect to the reservoir, made without consolation with the tribe, could not be interposed as an obstacle to the lake receiving the maximum benefit from the reservoir which might be available under reasonable and proper interpretation of court decrees; in this respect, the trust obligations of the Secretary ... to the tribe were paramount."

Fiduciary Standards: Good Faith/Money Damages Available

United States v. Mitchell, 463 U.S.206 (1983). "The standard by which the Interior's actions are to be judicially tested is ... the normal standards for government fiduciaries -- were their actions in good faith and with the realm of their acceptable discretion, or were they arbitrary, capricious, in abuse of discretion, or contrary to law?" The U.S. Supreme Court held that the United States is accountable in money damages for breach of its fiduciary duties in relation to the management of forest resources on allotted lands.

Government's Fiduciary Responsibilities To Tribes Not Limited To The Secretary Of The Interior

Pyramid Lake Paiute Tribe of Indians v. United States Department of the Navy , 898 F.2d, 1410-1421(1990). "The Secretary has a fiduciary duty to preserve and protect the Pyramid Lake fishery. This court referred approvingly to this duty in Truckee-Carson Irrigation Dist ... and has read the obligation to extend to any federal government action."

"As discussed above with respect to the Navy's affirmative duty to conserve under section 7(a) (2) of the Act, the Navy has taken and is taking steps to conserve water on behalf of the cui-ui and consequently for the Tribe and its fishery. We therefore affirm the district court's holding that the Navy did not breach its fiduciary duty to the Tribe."

Representing Conflicting Interests Is Not A Conflict

Nevada v. United States, 463 U.S. 110 (1983). "The Federal Government may perform its obligation to represent Indian tribes in litigation when Congress has obliged it to represent other interests as well." "The Federal Government does not compromise its obligation to one interest that Congress obligates it to represent by the mere fact that it simultaneously performs another task for another interest that Congress has obligated it by statute to do since the government cannot follow the fastidious standards of a private fiduciary."

3. Treaties

Water/Hunting And Fishing/Treaty Interpretation

United States v. Winans, 198 U.S. 371 (1905). A tribe may reserve by treaty the right to hunt or fish off-reservation.

Winters v. United States, 207 U.S. 564 (1908). This case involved an 1888 agreement that ratified by an act of Congress, which ceded to the United States a large tract of land to be opened up for settlement, while reserving to the tribes other land, bordered by a flowing stream, which became the Fort Belknap Reservation in Montana. Non-Indian settlers diverted the stream, and the United States brought suit on behalf of the Indians. The settlers argued that lands would not have been cede for settlement without also ceding the water which would permit them to become fruitful. The United States argued that lands would not have been reserved for the tribes unless water had also been reserved to make the reservation productive. The Court chose to interpret the agreement from the standpoint of the Indians and to resolved the conflict in their favor. The resulting decision has become the foundation of all Indian water law.

Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903). This case involved a treaty with the Kiowas and Comanches which set aside lands to be held communally by the tribes and provided that no further cessions of those lands could be made without the consent of three-fourths of the adult male Indians of the tribes. Many years later, a further cession was arranged by the federal government but the number of adult males who consented fell short of three-fourths. Congress nevertheless passed a statute putting the cession into effect. The Court upheld the statute, stating that a treaty could not be given a legal effect that would restrict the future exercise of Congress' plenary power over Indian affairs. The Court elaborated by stating that, "The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians."

Menominee Tribe v. United States, 391 U.S. 404 (1968). An 1854 treaty set aside lands for the Menominee "to be held as Indian lands are held." The Court interpreted this phrase sympathetically to guarantee hunting and fishing rights on the reservation lands. In 1954, Congress passed a Termination Act which provided that in 1962 the special relationship between the Menominee Tribe and the federal government would end and that, "all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction." 25 U.S.C.A. � 899 (1954), repealed 25 U.S.C.A. � 903a(b) (1973). No mention was made in the Termination Act of the Menominee's treaty hunting and fishing rights. Wisconsin argued that the statue necessarily extinguished those treaty rights and subjected the Menominee who hunted and fished on the former reservation to state licensing and regulatory laws. A majority of the Court held, however, that the Termination Act referred to federal statutes becoming inapplicable but said nothing of treaties. In concluding, the majority stated, "[w]e decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians and [w]e find it difficult to believe that Congress without explicit statement would subject the United States to a claim for compensation by destroying property rights conferred by treaty. . ." 391 U.S. at 412-413. While these remarks probably ought not to be read as requiring an explicit congressional statement for every abrogation, the Menominee case is unquestionably strong authority for the proposition that congressional intent to abrogate a treaty is not to be easily implied.

Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979). The language of the treaties guaranteed the Indians access to usual and accustomed fishing sites and on "equal opportunity" for individual Indians, along with non-Indians to try to catch fish and secured to the tribes a right to harvest a share of each run of anadromous fish that pass through tribal fishing areas.

4. Tribal Authority

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). The U.S. Supreme Court affirmed that the Mescalero Apache Tribe has the exclusive jurisdiction to regulate hunting and fishing by nonmembers on the Mescalero Reservation, thereby specifically preempting any application of such state laws.

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). The U.S. Supreme Court held that the State of Arizona could not apply certain motor vehicle fuel and road use taxes to the operations of a non-Indian trucking firm that contracted to haul timber for tribal timber operations on the White Mountain Apache Reservation.

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). Tribal oil and gas severance tax upon non-Indian lessees has also been upheld against challenges based on lack of tribal power, the interstate commerce clause and federal preemption.

D. Tribal Operations in Selected Federal Departments/Agencies

1. Department Of Defense

The Department of Defense (DOD), has many activities related to its mission that affect Indian lands. Many DOD facilities, such as military bases, bombing ranges, overflight areas, and laboratories are located on or adjacent to Indian lands. In order to begin addressing some of the environmental harms that have resulted from these facilities, DOD now manages a tribal grant program for the Mitigation of Environmental Impacts to Indian Lands Due to Department of Defense Activities. In addition to actual facilities, tribes are also heavily impacted by actions taken by the Corps of Engineers. Many tribes have been adversely impacted by Corps projects such as the construction of dams that result in the flooding of reservations and ceded territory and the issuance of dredge and fill permits for wetlands within the tribes' watershed.

2. Environmental Protection Agency

Over the past ten years, the Environmental Protection Agency has developed a strong tribal program. It is currently one of the strongest among the federal agencies. The EPA's Policy for the Administration of Environmental Programs on Indian Reservations (Indian Policy), issued in 1984 and reaffirmed in 1994, recognizes the government-to-government relationship between the Agency and tribal governments and recognizes tribes as the most appropriate party for regulating tribal environments where they can demonstrate the authority and capability to do so.

This policy was accompanied by an Implementation Guidance that established the National Indian Work Group consisting of Indian Coordinators to be appointed in each of the Headquarters Program Offices and Regional Offices. In addition, the Guidance also formally placed responsibility for the implementation of tribal environmental programs in three EPA offices, where it remained until the establishment of the American Indian Environmental Office in October 1994.

In addition to the American Indian Environmental Office, the EPA has several other components in its effort to strengthen the public health and environmental protection in Indian Country and to improve EPA's government-to-government partnership with tribes. These include treating tribes as states and allowing them to implement and regulate environmental programs; providing grants, training, and technical assistance to tribes as they develop tribal environmental programs; and developing tribal/EPA Environmental Agreements in which EPA consults with tribes to better protect tribal environments.

3. Department Of Interior

The Department of Interior (DOI) has multiple Offices and Bureaus that have significant responsibilities to Indian tribes. Primarily, the Bureau of Indian Affairs has the lead for the federal executive on general Indian issues. In addition, the Office of American Indian Trust has the primary responsibility for overseeing the federal government's trust obligations, and the Assistant Solicitor for Indian Affairs has the primary role of furthering Indian legal issues and protecting Indian rights. Also, many of the land use and natural resource bureaus and offices at DOI have responsibilities for issues that affect tribal environments, such as the Bureau of Land Management, the Office of Surface Mining, the Fish and Wildlife Service, and the National Park Service.

4. White House Domestic Policy Council

The Domestic Policy Council has established a Working Group on American Indians and Alaska Natives to coordinate across the federal executive branch efforts to address key issues affecting Indian Country. The Working Group is chaired by the Secretary of Interior and is composed of Secretary and Assistant Secretary level representatives from each of the federal departments/agencies with responsibility for American Indian and Alaska Native issues. The Working Group has five subgroups, including one on the Environment and Natural Resources which is co-chaired by the Director of the EPA American Indian Environmental Office and the Assistant Secretary for the Bureau of Indian Affairs.

5. White House Council On Environmental Quality

The Council on Environmental Quality (CEQ) is primarily responsible for overseeing the implementation of the National Environmental Policy Act (NEPA) and coordinating environmental issues across the federal executive branch. Thus, CEQ plays an important role in the protection of tribal environments, since the responsibility for this protection is shared by many federal departments and agencies. Also, issues regarding the implementation of NEPA have played a prominent role in the management of tribal environments. In recent years, CEQ has been working with EPA to strengthen the tribal role under NEPA and to ensure tribal consultation when a federal department of agency has the lead in developing NEPA documents.

6. Department Of Justice

The Department of Justice (DOJ) plays a unique role in the protection of tribal environments and natural resources. Generally, DOJ will be requested by an agency referral to file a law suit on behalf of another federal agency, such as EPA or DOI, or to defend such agencies against a suit. In the context of tribal environments, EPA and/or DOI have the option to request that DOJ take an enforcement action, when such an action is warranted by law, against a pollution source causing environmental harm to tribal resources. Given that most tribal environmental programs are in the early stages of development, this alternative method, as opposed to tribal enforcement, offers a potentially powerful tool for ensuring the protection of tribal environments. In order to handle litigation requests related to Indian tribes, DOJ established an Indian Resources Section within the Environment and Natural Resources Division. The Environmental Defense, Environment Enforcement and General Litigation sections also play key roles in the Environmental and Natural Resources Division with regard to environmental litigation involving tribes. Also, DOJ recently established the Office of Tribal Justice to coordinate litigation strategies relating to tribes and to better promote issues of federal Indian law.

In June 1995, the Attorney General issued the DOJ Policy on Indian Sovereignty and Government-to-Government Relations with Indian tribes. The purpose of this policy is:

To reaffirm the Department's recognition of the sovereign status of federally recognized Indian tribes as domestic dependent nations and to reaffirm adherence to the principles of government-to-government relations; to inform Department personnel, other federal agencies, federally recognized Indian tribes, and the public of the Department's working relationship with federally recognized Indian tribes; and to guide the Department in its work in the field of Indian affairs.

7. Department Of Health And Human Services (ANA, IHS)

The Department of Health and Human Services (HHS) has two Offices which specifically handle Indian issues. The Indian Health Service (IHS) with is a public health service designed exclusively to address Indian health issues. As part of many Indian treaties, the federal government guaranteed health care to Indian people in exchange for peace, friendship, and land. IHS has the primary responsibility of caring out these treaty and trust obligations. Among other services provided, IHS operates numerous hospitals throughout Indian Country. The Administration for Native Americans (ANA) is a general Indian service organization that primarily manages various tribal grant programs. Most importantly to EPA, is the ANA grant program for Improving the Capability of Indian Tribal Governments to Regulate Environmental Quality. This program is similar to the Agency's General Assistance Program in that it is meant to assist tribes in developing their overall capacity to implement environmental programs.

8. Department Of Agriculture

The United States Department of Agriculture (USDA) has taken some important strides in fulfillment of its federal trust responsibilities to the Indian Nations. In recent years, the USDA has dramatically increased outreach and program delivery to reservation residents. For instance, within the Rural Development Mission Area (formerly known as "Farmers Home Administration"), home ownership programs have been modified to better meet the needs of Native Americans living on trust lands. Increased emphasis has been placed on loan assistance and leveraging funds, tribal government consultation regarding housing development issues, and the introduction of culturally-correct housing design. Additionally, increased emphasis has been placed on economic development activities and programs on tribal reservations. Finally, the USDA continues to work with other federal departments in cooperative efforts designed to meet the needs of tribal governments (examples of this can be seen in inter-agency agreements, etc.).