Department
of Defense
Environmental Security
Native
American Briefing
January 23, 1998
Department
of Defense
Native
American Briefing |
TABLE OF CONTENTS
Chapter I. Contribution of Native Americans in the Military
Chapter II. American Indian and Alaskan Native Tribal
Chapter III. Working in Indian Country
Chapter IV. U.S. Fish and Wildlife Native American Program
Chapter V. Selected Authorities and Programs
NATIVE AMERICAN ISSUES: A BRIEF OVERVIEW
I. Introduction and Welcome
II. American Indian and Alaskan Native Tribal Governments (Liz Homer, DOI, 50 minutes)
A. Historical Overviev: Federal Indian Relationship with Tribal Governments
1. History of Federal-Tribal Relations
a. Pre-Constitutional Policy (1532-1789)
b. The Formative Years (I 789-187 1)
c. The Era of Allotment and Assimilations (I 871-1928)
d. Indian Reorganization (1928-1945)
e. The Termination Era (I 945-196 1)
f. The "Self-Determination" Era (I 961 -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. Feelands
iii. Ceded Territories
iv. Usual and Customary Usage/Rights
v. Alaskan Native Lands
III. Contribution of Native Americans in the Military (Lee Foster, DoA, 10 minutes)
IV. Working in Indian Country (David Vader, COE, 50 minutes)
A. Consultation
1. Definition
2. Application
a. Native vs. Non native Perspectives
3 . How to consult
B. Protocol: Government-to-Government Relations
1. Elected Officials
a. Tribal Councils and Treaty Councils
b. Administrators
c. Program managers
d. Traditionals/Elders
e. Grass Roots
f. Differences in Protocols
C. Success Stories - Why they succeeded
1. Old Scouts Cemetery: Realignment
2. Boulder, CO: The EIS and the Medicine Wheel
3. Repatriation: MOA with the North Dakota Intertribal Reinterment Committee
D. Lessons We Are Learning
1. Examples of how not to interact with tribes
2. Lessons we have learned
V. Federal Agency Benchmarking - U.S. Fish and Wildlife Service (Duncan Brown, Office of the Native American Liaison, 30 minutes)
A. Introduction to the U.S. Fish and Wildlife, Office of Native American Liaison
B. Government-to-Government Consultation
C. Department of the Interior Secretarial Order 3206 - American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act
D. Fish and Wildlife Tribal Policies
1. Sacred Sites
2. Cooperative Agreements
Reference Materials
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
CONTRIBUTIONS OF NATIVE AMERICANS IN THE MILITARY
 |
Native American Service in the United States Military |
 |
Presentation to the
American Indian/Alaska Native Activities
Working Integrated Product Team
Mr. Lee Foster
Native American Program
Coordinator
U.S. Army Environmental Center
American Indian Participation in
World War I
American Indian Participation in
World War II
American Indian Participation in
World War II
American Indian Service in the Military
(1950-Present)
American Indian Service in the Military
(1950-Present)
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 I, 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 ERA'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):
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 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. I I 0 (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. 65 8 (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 Oliphant case ruled 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, I 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 Of 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 opporturtity 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 Responsibility
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 ERA, to issue federal corporate charters to ERA 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.
2. 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, state jurisdiction does not extend to Indian country and, instead, tribal and federal law governs.
The 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 which have not been, and (c) all Indian allotments, the Indian titles to 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 government 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 cornmunities, 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
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
d. Other Agreements (e.g., Cooperative Agreements, Grants, Memoranda Of Understanding, Memoranda Of Agreement, Protocol Agreements)
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.
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:
131 U.S.C. � 6303.
231 U.S.C. � 6305.
331 U.S.C. �
6501.
WORKING IN INDIAN COUNTRY
NATIVE AMERICAN PROGRAM
OMAHA DISTRICT, U.S. ARMY CORPS OF ENGINEERS
Native American Coordinator: The Omaha District was the first, and remains the only District in the Corps of Engineers, to have a full-time Native American Coordinator. The position was created in June 1992 in direct response to testimony by Missouri River basin tribes during Congressional hearings. The role of the NAC is to work to improve relations between the District and tribes and add accountability and visibility to issues affecting Indian Country.
Old Scouts Cemetery: The Omaha District worked with the White Shield, North Dakota community, members of the Three Affiliated Tribes, the Bureau of Indian Affairs, members of the Old Scouts Society, and the Sahnish Cultural Committee to correct a 40-year-old wrong by realigning graves and tombstones at Old Scouts Cemetery, on the Fort Berthold Indian Reservation near Garrison, N.D. When the construction of Garrison Dam forced the cemetery to relocate to higher ground in the mid-1950's, the graves and markers were incorrectly placed facing south--contrary to the Arikara custom of burying the dead facing east. The cemetery, which has been called "The Arlington Cemetery of the Three Affiliated Tribes", is one of the few places when 40 Arikara Indian scouts (including Bob-Tailed Bull, Bloody Knife and Little Brave) who served with General George A. Custer in the Little Big Horn campaign in 1876, and the 7th Cavalry are honored and includes graves of members of the Arikara, Mandan and Mdatsa Nations who have served in the U.S. Armed Forces.
NAGPRA-Based Memorandum of Agreement: The Native American Graves Protection and Repatriation Act (NAGPRA) became law on 16 November 1990. The tribes of North Dakota (Standing Rock Sioux, Devils Lake Sioux, Three Affiliated Tribes, and Turtle Mountain Band of Chippewas) and the Omaha District developed and signed one of first NAGPRA-based agreements in the Nation. The MOA outlines procedures to follow for the disposition of human remains and cultural items discovered and recovered on Omaha District project lands. Under the MOA, we have repatriated the remains of several individuals to the tribes for reburial.
Consultation - Boulder, CO: Together with the General Services Administration and the Department of Commerce, the Omaha District played a key role in designing and implementing a consultation process with 14 Tribes from the Rocky Mountain-Great Plains region. The purpose of the consultation was to determine the significance of a suspected Traditional Cultural Property (Medicine Wheel) located on Federal property proposed for a major construction project in Boulder, CO. The consultation process resulted in an agreement between the Tribes, the Federal agencies, and the City of Boulder that allowed the project to proceed on schedule and also protected the interests of the Tribes. The consultation was recognized by the participating Tribes as a significant achievement and model for consultation between Federal agencies and Tribes.
Quarterly Meetings: The Commanders and key staff of the USACE Missouri River Region and Omaha District have been actively meeting with representatives of 27 tribes in the Missouri River basin on a quarterly basis. The purpose of meetings is to improve communications and to improve the government-to-government working relationships. The meetings focus on specific topics of interest, on ways to improve programs and cooperative efforts, and on ways to make things happen that are productive and meaningful.
Native American Workshops: In May 1995, the Omaha District conducted two workshops in North Dakota and Montana with 19 tribes in the Aberdeen Area and Billings Area of the Bureau of Indian Affairs. The purpose of the workshops was to get more familiar with the priorities and needs in Indian Country and identify ways for the Corps to improve the way its interactions with Tribes. The workshops were part of a Corps-wide effort, at the direction of the Acting Assistant Secretary of the Army (Civil Works), to respond to President Clinton's 29 April 1994 Memorandum, titled "Government to Government Relations with Native American Tribal Governments".
Tribal Programmatic General Permit: The Omaha District is currently working with the Confederated Salish and Kootenai Tribes of the Flathead Nation toward development of a Tribal Programmatic Regional General Permit (PGP) . Under the PGP, the Tribe would be responsible for implementation of the Nationwide Wetlands Regulatory Permit Program within the exterior boundaries of the reservation located south of Glacier National Park in Montana. This effort will result in the first Tribal PGP in the Nation and is a direct implementation of the President's Wetlands Plan issued on August 24, 1993.
Regulatory Program: The Omaha District and area tribes have made significant progress in developing a working relationship to manage and protect wetlands in Indian Country. The Omaha District's Regulatory Boundaries include all of Montana, South Dakota, North Dakota, Wyoming, Nebraska, and parts of Colorado and Iowa. Area tribes have been actively participating in interagency meetings, recognizing the importance of this forum for expressing their interest in protecting wetlands and water resources. We also work closely and successfully with tribes on projects that require permits for 404 authorization. Briefings on the regulatory program have been presented at several tribal workshops.
Emergency Streambank Protection - Blackfeet Reservation: Working with the Blackfeet Tribe, the State of Montana, and a local contractor, the Omaha District negotiated, designed, and completed a Section 14, Continuing Authorities project to protect a public highway bridge located on the Blackfeet Reservation. This was the first State Highway Department project constructed on tribal lands in several years. The project improved relations between the State and the Tribe for other work that was needed on the highway within the boundaries of the reservation.
Water Supply: The Omaha District has supported the Oglala Sioux Rural Water Supply System (OSRWSS) project by working with tribes to locate an acceptable water intake on the Missouri River. The OSRWSS will supply safe and adequate drinking water to the Pine Ridge, Rosebud, and Lower Brule Sioux Reservations in South Dakota as part of the Mni Wiconi, one of the largest water supply projects in the nation. In FY 97, the District provided geophysics contacts for Ordnance and Explosive (OE) avoidance of over 43 miles of OSRWSS waterline construction on the Formerly Used Defense Site (FUDS), Badlands Bombing Range (a.k.a. Pine Ridge Gunnery Range). The Omaha District has also provided technical input to the Assiniboine and Sioux Tribes of the Fort Peck Reservation in Montana for a study of a municipal, rural, and industrial water supply project.
Flood Plain Mapping: The Omaha District is assisting the Federal Emergency Management Agency's (FEMA) efforts to map the flood plains on the Standing Rock Sioux and the Cheyenne River Sioux Reservations. The two reservations are among the first in the country to have their flood plains mapped. This effort will help in planning future development on the reservations and will be used to determine premium rates for FEMA's National Flood Insurance Programs.
Erosion Control : A collaborative effort between the Standing Rock Sioux Tribe, the USACE, Omaha District, the Bureau of Indian Affairs, the North Dakota Department of Transportation, and Sioux County, ND, resulted in the development of a long-term solution to erosion problems along a causeway leading to the Tribal community of Ft.Yates. The collaborative effort not only halted erosion, but allowed the construction of a planned tribal walkway project to be constructed on time and below budget.
Cultural Resources Programs: The Omaha District has provided technical information and support to area Tribes setting up their own cultural resources programs. Tribes include the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe, the Crow Creek Sioux Tribe, the Yankton Sioux Tribe, and the Standing Rock Sioux Tribe.
Fort Yates Bridge - Standing Rock Sioux Tribe: The Tribe, the Omaha District, and the North Dakota Dept. of Transportation have worked closely on all aspects of the proposed Missouri River bridge project. We are working closely with the Tribe, the North Dakota SBPO, the North Dakota Dept. of Transportation, and the Advisory Council for Hisioric Preservation to develop a Memorandum of Agreement regarding the treatment of archeological sites located on the reservation. The Tribe was also a cooperating agency in the preparation of the project Environmental Impact Statement.
Native American Focus Groups: The Omaha District assisted HQUSACE and WES on a study of its operating civil works projects where Native American use is high to develop information concerning the recreational use, interests, and expectations of Native Americans. Several Focus Group meetings were held with various tribal representatives to gather specific user information. This information will be assist Corps planners and project managers to determine specific recreation needs and preferences of Native American project visitors.
Planning Assistance: The District has completed or contemplates several water resource related projects with area Indian Tribes. Projects include:
Fort Peck Tribes, MT - Recreation development plans for a water access area on the Missouri River downstream from the Fort Peck Dam. This project was completed in 1992 and was the first cost-shared study nationwide with a Tribe under this program.
Rosebud Sioux Tribe, SD - Technical assistance in development of a trail, picnic, exercise, and viewing area at Ghost Hawk Park along the Little White River in South Dakota. This project is part of the Tribe's overall water resources management plan.
Ponca Tribe, NE - Technical assistance in developing a water-based recreation plan for the Lewis and Clark Lake project, Nebraska and South Dakota.
Lower Brule Sioux Tribe, SD - Technical assistance to inventory and map wetlands on the reservation. The project is part of the Tribe's overall water resources management plan.
Omaha Tribe, NE - Potential flood plain analysis along North Blackbird Creek near Macy, NE, for the Omaha Tribe. This would be part of an overall water resources development plan for the reservation.
Local Flood Protection - Standing Rock Sioux Tribe: The Town of Wakpala, SD, located on the Standing Rock Reservation is subject to frequent flooding. Following initial studies of the flood problem, several coordination meetings were held with the community to identify a feasible solution to the flood problem, while being socially and environmentally acceptable to the Tribe. Final design and construction will take place as soon as the non-Federal sponsors are able to secure and provide the required cost share portion of the project funding.
Recreation: The Omaha District is currently working with several tribes along the Missouri River to assist them in leasing and developing Corps project lands for recreation and resort development.
Yankton Sioux Tribe - The District is in the final stages of signing a lease with the Yankton Sioux Tribe for its proposal to construct and operate a full service marina, hotel, restaurant, and rental cabins on Lake Francis Case, SD.
Lower Brule Sioux Tribe - The District recently signed a park and recreation lease with the Lower Bnile Sioux Tribe for the development of a campground, beach, and day use area. The Tribe has also expressed interest in leasing additional project lands for development of a living village as part of its efforts to commemorate the bicentennial of the Lewis and Clark expedition.
Crow Creek Sioux Tribe - Negotiations are underway with the Crow Creek Sioux Tribe for the lease of an existing Corps recreation area for the development of a destination resort on Lake Sharpe, SD.
Standing Rock Sioux Tribe - The District and the Tribe are in the final stages of an effort to lease a portion of Lake Oahe project lands to the Tribe for their development of a full service marina, campground, and recreation area.
Badlands Bombing Range (a.k.a. Pine Ridge Gunnery Range): In conjunction with the 0glala Sioux Tribe, the Omaha District is managing a Formerly Used Defense Site (FUDS) project that consists of four burial pit sites that contain exploded ordnance. The 350,000 acres of former bombing range also contain Ordinance Explosives (OE) to be researched and cleared. To accomplish this, the following initiatives have been undertaken:
A. A Preliminary Assessment/Site Investigation (PA/SI) is being conducted to identify possible contaminants which might have leached from the sites. The PA/SI has been conducted and is currently being expanded to evaluate background contaminant levels near OE burial pits. Additional sites are bing investigated as the Tribe finds historical documentation or through interviews as part of their Archive Search Report.
B. As part of the project, a Restoration Advisory Board (RAB) was initiated in September 1995 to 1) act as a forum for governmental agencies, the Oglala Sioux Tribe and the affected community; 2) provide an opportunity for the community to review restoration progress; 3) identify community concerns and to convey recommendations to government agencies; and 4) focus on environmental issues.
C. The Oglala Sioux Tribe is also an active participant in the process as a recipient of an Administration for Native Americans (ANA)/DOD grant to mitigate the impacts of FUDS in Indian Country. The Tribe is assisting agencies in the investigations to determine the impacts, ensuring that cultural values are considered and made part of the process, and providing community dialogue.
D. To continue the Oglala Sioux Tribe support to the U.S. Army Corps of Engineers (USACE) FUDS mission, the DOD, USACE, and the Tribe are developing a Memorandum of Agreement (MOA) and a Cooperative Agreement (CA) between the DOD, the USACE, and the Oglala Sioux Tribe. The CA will provide funding to the Tribe for FY98 efforts. The MOA is an umbrella agreement for the long term goals and evaluation of each year's CA and work plan. The MOA is consistent with the Defense Appropriations Act for FY97, which requires DOD to provide for the mitigation of environnmental impacts to Indian Country, including training and technical assistance to tribes.
E. OE site visits and investigation are occurring jointly between the USACE and the OST as information and funding becomes available.
F. Multiple issues have been shared, researched, developed with the Tribe such as 1) training seminars before each RAB meeting; 2) DOD Innovative Technology demonstrations with the Naval Research Lab; 4) real estate issues on the Air Force High Impact Area; 5) "Project Beware" train the trainer coordination with the Transportation Safety Institute; and 6) all issues brought before the RAB by tribal members and the general public.
Support For Others: Construction Management was provided by the Black Hills Area, Construction Division, Omaha District, as "Support for Others" type work for the Department of Health & Human Services (DHHS), for two health care facilities, located at Pine Ridge and Wagner, South Dakota. Projects included the Pine Ridge Health Care Facility, Pine Ridge, SD, and the Wagner Health Care Facility, Wagner, SD.
PINE RIDGE
Pine Ridge consisted of a new 50 bed comprehensive health care facility, featuring a complete array of medical services. The $22 million project was an extraordinary challenge when considering that the architect-engineer firm that designed the project had broken their relationship with DHHS. Black Hills Area personnel were tasked with not only providing construction management duties, but also negotiating all modifications on behalf of DHHS, preparing all correspondence, utilizing technical branch to handle all design corrections for the 100 contract modifications, all with little or no support from the original designer.
Construction began in June 1991, and was completed in September 1993. The customer was trained on the operation of all the complex systems. Black Hills Area Office was also available for assistance during the 1 year warranty period, with no major problems developing. The facility became a monument in the poorest county of America.
WAGNER
This project came on the heels of the Pine Ridge project and was awarded in August 1991. Similar responsibilities were placed on the Black Hills Area as with the Pine Ridge project, however, in this case the project designer was available for design intent questions. The expansion of the existing medical facility cost approximately $4.5 million, which included a new addition. This addition to the facility was completed first to allow continued operation of the existing medical services during the remodeling work in the existing facility. The utility system interface was critical because the new addition was served through the existing facility. Several schemes and phasing tasks had to be developed to keep construction progressing without shutting down the facility. The entire project was completed in June 1993.
The Black Hills Area received formal accolades from the Department of Health & Human Services, Seattle, Washington office and the Indian Health Services Regional Office at Aberdeen, South Dakota.
Geographic Information Systems: At the "Tribal Government Summit on the Government-to-Government Relationship & Management of Indian Trust/Natural Resources" held in Denver, CO, 13-15 November 1995, the Omaha District GIS coordinator presented an overview of the District's GIS program and outlined a number of opportunities and programs available to tribes from the District. Several tribes expressed interest and specific projects were identified for future applications.
NATURAL RESOURCES MANAGEMENT- The Omaha District has worked closely with the Lower Brule and Crow Creek Sioux Tribes on cooperative natural resources development programs that has including funding of sole source contracts wildlife habitat improvements for $45,000 in FY96 and $90,000 in FY97 for each tribe. The work included establishment of food plots, tree planting, establishment of dense nesting cover, shelterbelt maintenance and exclosure fencing.
National Guard - Other cooperative efforts with the Lower Brule tribe include the Christian Pond Wetlands Project where the Corps, the South Dakota National Guard, and the Tribe worked together to improve wetlands by blasting potholes and increasing small open water areas for waterfowl. A volunteer youth program was established for other conservation and education measures.
BACKGROUND AND PURPOSE STATEMENT
From a consideration of the mandate issued by the Native American Graves Protection and Repatriation Act, it is clear that, in the event that an unmarked burial is opened or otherwise endangered on Federal lands managed by the Omaha District, U.S. Army Corps of Engineers (Omaha District) has a responsibility to notify and consult with those tribes whose ancestors are interred in unmarked burials found on lands administered by the Omaha District, but which were once-the aboriginal homelands of an indigenous nation or tribe. Further, from a consideration of a series of meetings held with the North Dakota Intertribal Reinterment Committee (NDIRC), it is clear that tribal governments in North Dakota, through their representatives on the NDIRC, have repeatedly expressed their strong desire to protect the contents of their ancestor's graves from any manner of disturbance. When disturbance cannot be avoided, however, the tribes have been very clear in calling for procedures in the disposition of these burials that protect the deceased. For these purposes, the following procedures shall be carried out by the Omaha District and the NDIRC when unmarked human burials are opened or otherwise disturbed on lands under its control.
MEMORANDUM OF AGREEMENT
BETWEEN THE DEVIL'S LAKE SIOUX TRIBE, STANDING ROCK SIOUX TRIBE, THREE AFFILIATED TRIBES, AND TURTLE MOUNTAIN BAND OF CHIPPEWA, AS REPRESENTED BY THE NORTH DAKOTA INTERTRIBAL REINTERMENT COMMITTEE AND THE UNITED STATES ARMY CORPS OF ENGINEERS, OMAHA DISTRICT CONCERNING THE PROTECTION, PRESERVATION, AND DISPOSITION OF UNMARKED HUMAN BURIALS, BURIAL MOUNDS, AND CEMETERIES LOCATED ON OMAHA DISTRICT LANDS IN THE ABORIGINAL HOMELANDS OF THE MEMBER TRIBES OF THE NDIRC, AS PROVIDED FOR BY THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT.
WHEREAS, the U.S. Army Corps of Engineers, Omaha District (hereinafter referred to as the Omaha District), has project operations responsibilities over lands once occupied by the aforementioned tribes that contain human interments now located along Lakes Bowman/Haley, Oahe, Sakakawea, and Pipestem Reservoir; and
WHEREAS, the Omaha District has custodial responsibility over burials, and periodically finds itself gaining possession of human remains eroded or collected from the reservoirs of North Dakota; and
WHEREAS, the tribes represented by the signatories hereto now occupy tribal lands in North Dakota and were aboriginal occupants of lands which, in part, now make up the State of North Dakota and other parts of the Missouri River Basin, as depicted on the map included as Appendix 1, do claim and assert the right of possession and control of Native American human remains and associated burial goods on lands managed by the Omaha District in North Dakota in accordance with Section 3a(2)(C) of the Native American Graves Protection and Repatriation Act (NAGPRA), and
WHEREAS, the tribal governments in North Dakota, through their representatives on the North Dakota Intertribal Reinterment Committee (NDIRC), have expressed their strong desire to protect the contents of their ancestors' graves from any manner of disturbance; and
WHEREAS, the Omaha District has consulted with all of the aforementioned parties and has agreed that certain actions ensuring the proper treatment of any Native American human remains and burial goods shall require uniform procedures in order to comply with the position of the NDIRC and the NAGPRA.
NOW THEREFORE, the Omaha District and the Devil's Lake Sioux Tribe, the Standing Rock Sioux Tribe, Three Affiliated Tribes, and Turtle Mountain Band of Chippewa agree to the following stipulations and the principle that Native American human remains and burial goods are handled in an appropriate manner. The signatories shall ensure that the following measures are carried out.
STIPULATIONS
I. DEFINITIONS
A. Legal Owner - For purposes of this agreement, the general concept of "legal" and/or ownership of human skeletal remains and associated burial goods is not recognized until identified under NAGPPLA. To the degree that the Omaha District may be deemed under law to have jurisdiction of skeletal remains and burial goods (cultural items), the Omaha District disclaims such jurisdiction and accepts only custodial responsibility for the purposes of protection of burial sites and, if necessary, reinterment.
B. Burial Goods - shall mean all sacred objects, which shall generally include all items believed to have been associated with the human skeletal remains or as part of the death rite, ceremony, or burial grounds, including but not limited to projectile points, knives, scrapers, articles of clothing, ornaments, beads, and religious items such as pipes, stones, dishes and pottery, feathers, and any item so identified and found, as determined in the field through consultation between the designated NDIRC representative and the archeologist.
C. Department - means the North Dakota State Department of Health and Consolidated Laboratories.
D. Duly Designated Representative - shall mean any person who is a member of the NDIRC and can provide written documentation of appointment to this committee by his/her respective tribal governing body.
E. In Situ - means in the human burial site per se or in the proximate area or vicinity of unmarked human burials.
F. Inventory - shall mean the physical creation of
1. A listing of the contents of unmarked human burials
2. Other existing records.
G. Qualified Archeologist - means an individual who meets the minimum qualifications as defined in Secretary of the Interior's Standards and Guidelines (Federal Register, vol. 48, no. 190, page 44739).
H. Society means the State Historical Society of North Dakota.
I. Media shall mean any form of communication including, but not limited to, electronic or other forms of print, audio, and video mediums. The term media does not include Omaha District technical reports to the file that are used for in-house documentation.
J. Burial Identification - is defined as the visual observation of a site by a qualified archeologist and a NDIRC representative to determine if a burial is present.
K. Nontribal - is defined as the remains of a non-Indian person buried in an unmarked grave with Native belongings and/or other items which would lend the impression that the deceased had been buried in a tribal manner due to adoption, marriage, or other means.
L. Intrusive Archeological Testing - any method or manner of testing that touches, destroys or intrudes on the suspected or confirmed burial chamber, per se.
M. Study - means the examination by a qualified archeologist, with the assistance from specialists, as necessary, and in the presence of the NDIRC, of human burial sites, human remains, and burial goods, which examination is conducted in situ, unless the physical safety of the NDIRC member(s), archeologists, and others may be in jeopardy, or as agreed to in the field. The study consists exclusively of the following activities under the following circumstances:
1. In all instances, the taking of soil and floral samples as may be appropriate.
2. In those instances wherein the burial can be restored by backfilling, stabilization, and other protective measures from further disturbance, study will not be conducted. Notification procedures described herein apply in this instance as well, however, and restoration of all sites is to be completed by the NDIRC. Upon request by the NDIRC, the Omaha District will provide assistance.
3. In those instances wherein the burial cannot feasibly be restored, but must be disinterred or collected completely and reinterred in another location, the visual observation and written description of the human burial site and the measurement and weighing of the human remains and burial goods after disinterment from the burial will be conducted in situ through an archeological excavation of the site. Such study shall only be conducted following consultation with the NDIRC, and in the presence of at least one of its members.
4. In those instances wherein in situ examination is not feasible because certain contents of a human burial have been physically separated from the original burial site, those human remains and any burial goods that have been so separated shall be delivered to the NDIRC. Such human remains and burial goods are not to be examined scientifically for any purpose except when the following situation applies:
Within five business days following notification of discovery, a records check, and a thorough search of the proximate area, at a minimum, will be made by the Omaha District to locate the human burial site in which such human remains and any burial goods were originally interred. In the event that the original burial site is located, examination of such burial site, in addition to those human remains and burial goods which have been separated from the original burial site, will be conducted within five business days of the discovery of the original burial, but only in the event the burial site must be excavated for protection. Such study shall only be conducted following consultation with the NDIRC, and in the presence of at least one of its members, in accordance with the scope of study as defined herein.
II. INADVERTENT DISINTERMENT - NOTIFICATION
Upon having received notification of the actual or potential disturbance or the discovery of a human burial site, human remains, or burial goods, the Omaha District shall, within a period of twenty-four hours, report the receipt of such notification to the appropriate NDIRC contacts. Based upon the infonnation received from the person providing such notification, the Omaha District shall additionally inform the Society and the Department as to the exact location and state (condition) of the human burial site, human remains, or burial goods of which notification was received, for the purpose of obtaining their assistance (through a records search) in the possible identification of the deceased. In the event that either the Omaha District or the NDIRC representative(s) have reason to suspect that the burial contains a victim of a recent prosecutable crime or accidental death, a local law enforcement officer will be notified.
III. INADVERTENT DISINTERMENT - STUDY
Within a period of two business days (although every effort will be made to keep the timeframe under twenty-four hours) from the time the Omaha District has received notification of the actual or potential disturbance or the discovery- of a human burial site, human remains, or burial goods, the Omaha District and the NDIRC representative(s) shall continence initial examination of any human remains not associated or suspected of a crime or accidental death as determined above which are the subject of the notification and undertake exclusively the following activities:
1. The human burial site or its exposed contents must be initially examined by the Omaha District to attempt to determine the lineal descendants (next-of-kin), or to determine race and age of the remains, if possible, using relevant available and solicited information (e.g., plats, maps, records, interviews with tribal members and landowners knowledgeable of the site in question, and associated burial goods). This initial examination must be conducted in consultation with the NDIRC, and in the presence of at least one of its members.
2. If a presumption as to lineal descendants (next-of-kin), or a determination of race and age can be made based upon location, historical data, and any associated burial goods, this information must be used to determine disposition of the human burial site, human remains, or burial goods by the Omaha District and the NDIRC. Disposition must be in accordance with NAGPRA and requirements as set forth herein.
3. If it is determined by initial examination that the human remains are non-Indian and non-Tribal, the remains will be further examined within the applicable scope of study as defined herein. Further study and final disposition of these remains willbe at the discretion of the Omaha District, with assistance from the NDIRC, if requested.
4. If it is determined by initial examination that the human remains are Indian, the remains will be further examined within the applicable scope of study as defined herein, and disposition of these remains will be in accordance with paragraph 2 above.
5. If it cannot be determined by means of such initial examination that the human remains are either Indian or non-Indian, it will be presumed that the human remains are Indian, based upon the experience of the Omaha District and the NDIRC.
IV. INADVERTENT DISINTERMENT - RECOVERY, RESTORATION AND REINTERMENT
A. In consultation with the NDIRC, the remains will be turned over to the proper legal authorities if it is determined that a recent crime was committed or suspected. Law enforcement and health officials will recover any remains resulting from a recent prosecutable crime or accidental death (i.e. drowning).
B. Within a period of two business days (although every effort will be made to keep the timeframe under twenty-four hours), the NDIRC representative, in consultation with the Omaha District representative, if necessary, shall make a determination as to whether the burial can be adequately and safely restored and protected in situ or whether, in the alternative, the contents of the burial should be disinterred completely and reinterred in another location.
C. Identification of a suspected human burial site, in consultation with a NDIRC representative, is an acceptable activity. Intrusive archeological testing methods are prohibited.
D. Prior to the restoration or reinterment of the burial, the NDIRC in consultation with the Omaha District, along with other possibly affiliated tribe(s), if any, shall attempt to determine the tribal identity or affiliation of the human remains and any burial goods interred in the burial site.
E. If it is determined that the disturbed burial can be adequately and safely restored and protected in situ, the NDIRC shall, as soon as practicable, cause the burial to be backfilled, stabilized, and protected from further disturbance by the human activities or natural processes which caused the disturbance in the first instance.
F. If, on the other hand, it is determined that the in situ restoration of the burial is not feasible, the NDIRC shall, as soon as practicable and subsequent to the completion of any study conducted on the contents of the burial at the direction of the Omaha District and pursuant to the scope of study as defined herein, and if lineal descendants cannot be ascertained, cause the disinterred human remains and any and all burial goods to be reinterred on Indian lands within the boundaries of the appropriate Indian reservation, as determined by the NDIRC.
G. Each such restoration and reinterment shall provide an opportunity for appropriate tribal religious ceremony or ceremonies. The Omaha District agrees to fund the expenses of the NDIRC members participating in restoration or reinterment ceremonies.
V. PLANNED DISINTERMENT
A. For all activities undertaken on lands managed by the Omaha District, the general policy shall be strict avoidance of all human burials, whether marked or unmarked, whenever possible.
B. For all instances where avoidance is not possible, the Omaha District shall undertake to reach separate memorandums of agreement with the NDIRC, on a case by case basis. Under no circumstances will any activity proceed until consultation between the Omaha District, the NDIRC, and any other interested parties is completed.
VI. CONSULTATION
A. Under no circumstances will the Omaha District provide details of any burial disturbance to any public, private, or governmental media.
B. The NDIRC will provide a prioritized list of points of contact (Appendix 2). The Omaha District will contact, in priority order, a NDIRC-member when human remains and burial goods are reported. The NDIRC point of contact will in turn notify other members of the committee as necessary. The Omaha District will identify counterpart personnel who will act as liaison(s) and coordinator(s). Both parties will notify each other in the event of change in personnel.
C. At the invitation of the NDIRC, the Omaha District will attend at least one quarterly NDIRC meeting annually to review any activities that involve this Agreement since the previous joint meeting.
D. On those rare occasions when either party is unable to meet its commitments as pertaining to timeframe schedules for any activity specified herein, the party that is unable to meet the schedule will notify the other party as soon as physically possible to reschedule the activities to the mutual satisfaction of both parties. Emergency actions will be coordinated telephonically.
VII. CHANGES
A. Should a dispute or competing claim arise during the course of this Agreement, the Omaha District will consult with the party(ies) in the dispute to resolve the objection or claim.
B. If any signatory to this Agreement believes that the terms of the Agreement cannot be carried out, or that an amendment must be made, that party shall notify the other signatories and request consultation to resolve the issue or amend the Agreement.
C. Other tribes may become parties to this Agreement.
D. Any signatory may terminate their participation in this Agreement upon 30 days written notice to the other signatories.
Obligations and expenditures agreed to by the Omaha District in this document are subject to the availability of funds.
Execution of this Memorandum of Agreement is evidence that the signatories have consented to enter into an Agreement as provided for in NAGPRA Section 11 (1) (B).
NORTH DAKOTA INTERTRIBAL REINTERMENT COMMITTEE
PRIORITIZED LIST OF POINTS OF CONTACT
NORTH DAKOTA INTERTRILBAL REINTERMENT COMMITTEE
| 1. Elgin
Crow's Breast Three Affiliated Tribes Box 220 New Town, ND 58763 |
(701)
627-3944 (Work) (701) 627-4389 (Home) |
| 2. Ronald Sam Little Owl Three Affiliated Tribes Twin Buttes Route Halliday, ND 58636 |
(701) 938-4462 |
| 3. Tim Mentz, Sr. Standing Rock Sioux Tribe P.O. Box D Ft. Yates, ND 58538 |
(701)
854-2120 (701) 854-2138 |
| 4. Alta Bruce Turtle Mountain Band of Chippewas Box 1355 Belcourt, ND 58316 |
(701)
477-5257 (Work) (701) 246-3283 (Home) (701) 477-8135 (FAX) |
| 5. Jane Martin Lone Fight P.O. Box 686 Mandaree, ND 58757 |
(701)
627-3141 (Work) (701) 759-3515 (Home) |
OMAHA DISTRICT
| 1. Richard
Harnois Lake Oahe Office P.O. Box 997 Pierre, SD 57501 |
(605)
224-5862 (Ext 3269) (Work) (605) 224-5945 (FAX) |
| 2. Rebecca
Otto Corps of Engineers 215 North 17th Street Omaha, NE 68102 |
(402)
221-3070 (Work) (402) 221-4886 (FAX) |
| 3. Sandra
Barnum Corps of Engineers 215 North 17th Street Omaha, NE 68102 |
(402)
221-4895 (Work) (402) 221-4886 (FAX) |
| 4. Edward
Brodnicki Corps of Engineers 215 North 17th Street Omaha, NE 68102 |
(402)
221-4888 (Work) (402) 221-4886 (FAX) |
POSITION OF THE NORTH DAKOTA
INTERTRIBAL REINTERMENT COMMITTEE
OFFICIAL REPRESENTATIVES
OF THE TRIBAL GOVERNMENTS
OF THE
STANDING ROCK SIOUX TRIBE
TURTLE MOUNTAIN BAND OF CHIPPEWA
THREE AFFILIATED TRIBES
DEVILS LAKE SIOUX TRIBE
1. We are categorically opposed to the excavation, curation, and study of all Indian remains and grave goods found in our homelands. We submit that these activities are ethnocentric and extremely racist, and violate our religious beliefs.
2. We want released to us all excavated ancestors and their personal belongings taken from our homelands for immediate reburial on Indian lands.
3. We reject any arguments that scientific analysis must be done on remains to establish tribal identity and assert that we do not have to prove we are related to Indian remains taken from our homelands. We further submit that there is no scientific test available today which conclusively identifies Indian remains as to tribal origin, and that any such findings made by science are strictly of a speculative nature.
4. There will be no subsequent disinterment of reburied ancestors or their belongings taken from our homelands for further study in the future.
5. The bodies and belongings of our relatives are not the property of any individual, institution, or government.
Note: It was mutually agreed that the position of the North Dakota Intertribal Reinterment Committee would be attached to the MOA. This does not reflect the policy of the Omaha District, Corps of Engineers.
APPENDIX 1. Map of USACE Omaha District
USACE Omaha District
Civil Works Boundary
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U.S. FISH & WILDLIFE NATIVE AMERICAN PROGRAM
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SECRETARIAL ORDER
Subject: American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act
Sec. 1. Purpose and Authority. This Order is issued by the Secretary of the Interior and the Secretary of Commerce (Secretaries) pursuant to the Endangered Species Act of 1973, 16 U.S.C. �1531, as amended (the Act), the federal-tribal trust relationship, and other federal law. Specifically, this Order clarifies the responsibilities of the component agencies, bureaus and offices of the Department of the Interior and the Department of Commerce (Departments), when actions taken under authority of the Act and associated implementing regulations affect, or may affect, Indian lands, tribal trust resources, or the exercise of American Indian tribal rights, as defined in this Order. This Order further acknowledges the trust responsibility and treaty obligations of the United States toward Indian tribes and tribal members and its government-to-government relationship in timing with tribes. Accordingly, the Departments will carry out their responsibilities under the Act in a manner that harmonizes the Federal trust responsibility to tribes, tribal sovereignty, and Statutory missions of the Departments, and that strives to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species. so as to avoid or minimize the potential for conflict and confrontation.
Sec. 2. Scope and Limitations. (A) This Order is for guidance within the Departments only and is adopted pursuant to, and is consistent with, existing law.
(B) This Order shall not be construed to grant, expand, create, or diminish any legally enforceable rights, benefits or trust responsibilities, substantive or procedural, not otherwise granted or created under existing law. Nor shall this Order be construed to alter, amend, repeal, interpret or modify tribal sovereignty, any treaty rights, or other rights of any Indian tribe, or to preempt, modify or limit the exercise of any such rights.
(C) This Order does not preempt or modify the Departments' statutory authorities or the authorities of Indian tribes or the states.
(D) Nothing in this Order shall be applied to authorize direct (directed) take of listed species, or any activity that would jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. Incidental take issues under this Order are addressed in Principle 3(C) of Section 5.
(E) Nothing in this Order shall require additional procedural requirements for substantially completed Departmental actions, activities, or policy initiatives.
(F) Implementation of this Order shall be subject to the availability of resources and the requirements of the Anti-Deficiency Act.
(G) Should any tribe(s) and the Department(s) agree that greater efficiency in the implementation of this Order can be achieved, nothing in this Order shall prevent them from implementing strategies to do so.
(H) This Order shall not be construed to supersede, amend, or otherwise modify or affect the implementation of, existing agreements or understandings with the Departments or their agencies, bureaus, or offices including, but not limited to, memoranda of understanding, memoranda of agreement, or statements of relationship, unless mutually agreed by the signatory parties.
Sec. 3. Definitions. For the purposes of this Order, except as otherwise expressly provided, the following terms shall apply:
(A) The term "Indian tribe" shall mean any Indian tribe, band, nation, pueblo, community or other organized group within the United States which the Secretary of the Interior has identified on the most current list of tribes maintained by the Bureau of Indian Affairs.
(B) The term "tribal trust resources" means those natural resources, either on or off Indian lands, retained by, or-reserved by or for Indian tribes through treaties, statutes, judicial decisions, and executive orders, which are protected by a fiduciary obligation on the part of the United States.
(C) The term "tribal rights" means those rights legally accruing to a tribe or tribes by virtue of inherent sovereign authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or agreement, and which give rise to legally enforceable remedies.
(D) The term "Indian lands" means any lands title to which is either: 1) held in trust by he United States for the benefit of any Indian tribe or individual; or 2) held by any Indian tribe or individual subject to restrictions by the United States against alienation.
Sec. 4. Background. The unique and distinctive political relationship between the United States and Indian tribes is defined by treaties, statutes, executive orders, judicial decisions, and agreements, and differentiates tribes from other entities that deal with, or are affected by, the federal government. This relationship has given rise to a special federal trust responsibility, involving the legal responsibilities and obligations of the United States toward Indian tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights.
The Departments recognize the importance of tribal self-governance and the protocols of a government-to-government relationship with Indian tribes. Long-standing Congressional and Administrative policies promote tribal self-government, self-sufficiency, and self-determination, recognizing and endorsing the fundamental rights of tribes to set their own priorities and make decisions affecting their resources and distinctive ways of life. The Departments recognize and respect, and shall consider, the value that tribal traditional knowledge provides to tribal and federal land management decision-making and tribal resource management activities. The Departments recognize that Indian tribes are governmental sovereigns: inherent in this sovereign authority is the power to make and enforce laws, administer justice, manage and control Indian lands, exercise tribal rights and protect tribal trust resources. The Departments shall be sensitive to the fact that Indian cultures, religions, and spirituality often involve ceremonial and medicinal uses of plants, animals, and specific geographic places.
Indian lands are not federal public lands or part of the public domain, and are not subject to federal public land laws. They were retained by tribes or were set aside for tribal use pursuant to treaties, statutes, judicial decisions, executive orders or agreements. These lands are managed by Indian tribes in accordance with tribal goals and objectives, within the framework of applicable laws.
Because of the unique government-to-government relationship between Indian tribes and the United States, the Departments and affected Indian tribes need to establish and maintain effective working relationships and mutual partnerships to promote the conservation of sensitive species (including candidate, proposed and listed species) and the health of ecosystems upon which they depend. Such relationships should focus on cooperative assistance, consultation, the sharing of information, and the creation of government-to-government partnerships to promote healthy ecosystems.
In facilitating a government-to-government relationship, the Departments may work with intertribal organizations, to the extent such organizations are authorized by their member tribes to carry out resource management responsibilities.
Sec. 5. Responsibilities. To achieve the objectives of this Order, the heads of all agencies, bureaus and offices within the Department of the Interior, and the Administrator of the National Oceanic and Atmospheric Administration (NOAA) within the Department of Commerce, shall be responsible for ensuring that the following directives are followed:
Principle 1. THE DEPARTMENTS SHALL WORK DIRECTLY WITH INDIAN TRIBES ON A GOVERNMENT-TO-GOVERNMENT BASIS TO PROMOTE HEALTHY ECOSYSTEMS.
The Departments shall recognize the unique and distinctive political and constitutionally based relationship that exists between the United States and each Indian tribe, and shall view tribal governments as sovereign entities with authority and responsibility for the health and welfare of ecosystems on Indian lands. The Departments recognize that Indian tribes are governmental sovereigns with inherent powers to make and enforce laws, administer justice, and manage and control their natural resources. Accordingly, the Departments shall seek to establish effective government-to-government working relationships with tribes to achieve the common goal of promoting and protecting the health of these ecosystems. Whenever the agencies, bureaus, and offices of the Departments are aware that their actions planned under the Act may impact tribal trust resources, the exercise of tribal rights, or Indian lands, they shall consult with, and seek the participation of, the affected Indian tribes to the maximum extent practicable. This shall include providing affected tribes adequate opportunities to participate in data collection, consensus seeking. and associated processes. To facilitate the government-to government relationship, the Departments may coordinate their discussion & with a representative from an intertribal organization, if so designated by the affected tribe(s).
Except when determined necessary for investigative or prosecutorial law enforcement activities, or when otherwise provided in a federal-tribal agreement, the Departments, to the maximum extent practicable, shall obtain permission from tribes before knowingly entering Indian reservations and tribally-owned fee lands for purposes of ESA-related activities, and shall communicate as necessary with the appropriate tribal officials. If a tribe believes this section has been violated, such tribe may file a complaint with the appropriate Secretary, who shall promptly investigate and respond to the tribe.
Principle 2. THE DEPARTMENTS SHALL RECOGNIZE THAT INDIAN LANDS ARE NOT SUBJECT TO THE SAME CONTROLS AS FEDERAL PUBLIC LANDS.
The Departments recognize that Indian lands, whether held in trust by the United States for the use and benefit of Indians or owned exclusively by an Indian tribe, are not subject to the controls or restrictions set forth in federal public land laws. Indian lands are not federal public lands or part of the public domain, but are rather retained by tribes or set aside for tribal use pursuant to treaties, statutes, court orders, executive orders, judicial decisions, or agreements. Accordingly, Indian tribes manage Indian lands in accordance with tribal goals and objectives, within the framework of applicable laws.
Principle 3. THE DEPARTMENTS SHALL ASSIST INDIAN TRIBES IN DEVELOPING AND EXPANDING TRIBAL PROGRAMS SO THAT HEALTHY ECOSYSTEMS ARE PROMOTED AND CONSERVATION RESTRICTIONS ARE UNNECESSARY.
(A) The Departments shall take affirmative steps to assist Indian tribes in developing and expanding tribal programs that promote healthy ecosystems.
The Departments shall take affirmative steps to achieve the common goals of promoting healthy ecosystems, Indian self-government, and productive government-to-government relationships under this Order, by assisting Indian tribes in developing and expanding tribal programs that promote the health of ecosystems upon which sensitive species (including candidate. proposed and listed species) depend.
The Departments shall offer and provide such scientific and technical assistance and information as may be available for the development of tribal conservation and management plans to promote the maintenance, restoration, enhancement and health of the ecosystems upon which sensitive species (including candidate, proposed. and listed species) depend, including the cooperative identification of appropriate management measures to address concerns for such species and their habitats.
(B) The Departments shall recognize that Indian tribes are appropriate governmental entities to manage their lands and tribal trust resources.
The Departments acknowledge that Indian tribes value, and exercise responsibilities for management of Indian lands and tribal trust resources. In keeping with the federal policy of promoting tribal self-government, the Departments shall respect the exercise of tribal sovereignty over the management of Indian lands, and tribal trust resources. Accordingly, the Departments shall give deference to tribal conservation and management plans for tribal trust resources that: (a) govern activities on Indian lands including, for the purposes of this section, tribally-owned fee lands, and (b) address the conservation needs of listed species. The Departments shall conduct government-to-government consultations to discuss the extent to which tribal resource management plans for tribal trust resources outside Indian lands can be incorporated into actions to address the conservation needs of listed species.
(C) The Departments, as trustees, shall support tribal measures that preclude the need for conservation restrictions.
At the earliest indication that the need for federal conservation restrictions is being considered for any species, the Departments, acting in their trustee capacities, shall promptly notify all potentially affected tribes, and provide such technical, financial, or other assistance as may be appropriate, thereby assisting Indian tribes in identifying and implementing tribal conservation and other measures necessary to protect such species.
In the event that the Departments determine that conservation restrictions are necessary in order to protect listed species, the Departments, in keeping with the trust responsibility and government-to-government relationships, shall consult with affected tribes and provide written notice to them of the intended restriction as far in advance as practicable. If the proposed conservation restriction is directed at a tribal activity that could raise the potential issue of direct (directed) take under the Act, then meaningful government-to-government consultation shall occur, in order to strive to harmonize the federal trust responsibility to tribes, tribal sovereignty and the statutory missions of the Departments. In cases involving an activity that could raise the potential issue of an incidental take under the Act, such notice shall include an analysis and determination that all of the following conservation standards have been met: (i) the restriction is reasonable and necessary for conservation of the species at issue; (ii) the conservation purpose of the restriction cannot be achieved by reasonable regulation of non-Indian activities; (iii) the measure is the least restrictive alternative available to achieve the required conservation purpose; (iv) the restriction does not discriminate against Indian activities, either as stated or applied; and, (v) voluntary tribal measures are not adequate to achieve the necessary conservation purpose.
Principle 4. THE DEPARTMENTS SHALL BE SENSITIVE TO INDIAN CULTURE, RELIGION AND SPIRITUALITY.
The Departments shall take into consideration the impacts of their actions and policies under the Act on Indian use of listed species for cultural and religious purposes. The Departments shall avoid or minimize, to the extent practicable, adverse effects upon the noncommercial use of listed sacred plants and animals in medicinal treatments and in the expression of cultural and religious beliefs by Indian tribes. When appropriate, the Departments may issue guidelines to accommodate Indian access to, and traditional uses of, listed species, and to address unique circumstances that may exist when administering the Act.
Principle 5. THE DEPARTMENTS SHALL MAKE AVAILABLE, TO INDIAN TRIBES INFORMATION RELATED TO TRIBAL TRUST RESOURCES AND INDIAN LANDS, AND, TO FACILITATE THE MUTUAL EXCHANGE OF INFORMATION, SHALL STRIVE TO PROTECT SENSITIVE TRIBAL INFORMATION FROM DISCLOSURE.
To further tribal self-government and the promotion of healthy ecosystems, the Departments recognize the critical need for Indian tribes to possess complete and accurate information related to Indian lands and tribal trust resources. To the extent consistent with the provisions of the Privacy Act, the Freedom of Information Act (FOIA) and the Departments' abilities to continue to assert FOIA exemptions with regard to FOIA requests, the Departments shall make available to an Indian tribe all information held by the Departments which is related to its Indian lands and tribal trust resources. In the course of the mutual exchange of information, the Departments shall protect, to the maximum extent practicable, tribal information which has been disclosed to or collected by the Departments. The Departments shall promptly notify and, when appropriate, consult with affected tribes regarding all requests for tribal information relating to the administration of the Act.
Sec. 6. Federal-Tribal Intergovernmental Agreements. The Departments shall, when appropriate and at the request of an Indian tribe, pursue intergovernmental agreements to formalize arrangements involving sensitive species (including candidate, proposed. and listed species) such as, but not limited to, land and resource management, multi-jurisdictional partnerships, cooperative law enforcement, and guidelines to accommodate Indian access to, and traditional uses of, natural products. Such agreements shall strive to establish partnerships that harmonize the Departments' missions under the Act with the Indian tribe's own ecosystem management objectives.
Sec. 7. Alaska. The Departments recognize that section 10(e) of the Act governs the taking of listed species by Alaska Natives for subsistence purposes and that there is a need to study the implementation of the Act as applied to Alaska tribes and natives. Accordingly, this Order shall not apply to Alaska and the Departments shall, within one year or the date of this Order, develop recommendations to the Secretaries to supplement or modify this Order and its Appendix, so as to guide the administration of the Act in Alaska. These recommendations shall be developed with the full cooperation and participation of Alaska tribes and natives. The purpose of these recommendations shall be to harmonize the government-to-government relationship with Alaska tribes, the federal trust responsibility to Alaska tribes and Alaska Natives, the rights of Alaska Natives, and the statutory missions of the Departments.
Sec. 8. Special Study on Cultural and Religious Use of Natural Products. The Departments recognize that there remain tribal concerns regarding the access to and uses of, eagle feathers, animal parts, and other natural products for Indian cultural and religious purposes. Therefore, the Departments shall work together with Indian tribes to develop recommendations to the Secretaries within one year to revise or establish uniform administrative procedures to govern the possession, distribution, and transportation of such natural products that are under federal jurisdiction or control.
Sec. 9. Dispute Resolution. (A) Federal-tribal disputes regarding implementation of this Order shall be addressed through government-to-government discourse. Such discourse is to be respectful of government-to-government relationships and relevant federal-tribal agreements, treaties, judicial decisions, and policies pertaining to Indian tribes. Alternative dispute resolution processes may be employed as necessary to resolve disputes on technical or policy issues within statutory time frames; provided that such alternative dispute resolution processes are not intended to apply in the context of investigative or prosecutorial law enforcement activities.
(B) Questions and concerns on matters relating to the use or possession of listed plants or listed animal parts used for religious or cultural purposes shall be referred to the appropriate Departmental officials and the appropriate tribal contacts for religious and cultural affairs.
Sec. 10. Implementation. This Order shall be implemented by all agencies, bureaus, and offices of the Departments, as applicable. In addition, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service shall implement their specific responsibilities under the Act in accordance with the guidance contained in the attached Appendix.
Sec. 11. Effective Date. This Order, issued within the Department of the Interior as Order No. 3206 is effective immediately and will remain in effect until amended. superseded, or revoked.
This Secretarial Order, entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act," and its accompanying Appendix were issued this 5th day of June,1997, in Washington, D.C., by the Secretary of the Interior and the Secretary of Commerce.
Secretary of the Interior
Date: June 5, 1997 |
Secretary of Commerce
|
APPENDIX
Appendix to Secretarial Order issued within the Department of the Interior as Order No.3206
Sec. 1 Purpose. The purpose of this Appendix is to provide policy to the National, regional and field offices of the U.S.Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), (hereinafter "Services"), concerning the implementation of the Secretarial Order issued by the Department of the Interior and the Department of Commerce, entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act." This policy furthers the objectives of the FWS Native American Policy (June 28, 1994), and the American Indian and Alaska Native Policy of the Department of Commerce (March 30, 1995). This Appendix shall be considered an integral part of the above Secretarial Order and all sections of the Order shall apply in their entirety to this Appendix.
Sec. 2. General Policy. (A) Goals. The goals of this Appendix are to provide a basis for administration of the Act in a manner that (1) recognizes common federal-tribal goals of conserving Sensitive species (including candidate, proposed, and listed species) and the ecosystems upon which they depend, Indian self-government, and productive government-to-government relationships; and (2) harmonizes the federal trust responsibility to tribes, tribal sovereignty, and the statutory missions of the Departments, so as to avoid or minimize the potential for conflict and confrontation.
(B) Government-to-Government Communication. It shall be the responsibility of each Service's regional and field offices to maintain a current list of tribal contact persons within each Region, and to ensure that meaningful government-to-government communication occurs regarding actions to be taken under the Act.
(C) Agency Coordination. The Services have the lead roles and responsibilities in administering the Act, while the Services and other federal agencies share responsibilities for honoring Indian treaties and other sources of tribal rights. The Bureau of Indian Affairs (BIA) has the primary responsibility for carrying out the federal responsibility to administer tribal trust property and represent tribal interests during formal Section 7 consultations under the Act. Accordingly, the Services shall consult, as appropriate, with each other, affected Indian tribes, the BIA, the Office of the Solicitor (Interior), the office of American Indian Trust (Interior), and the NOAA Office of General Counsel in determining how the fiduciary responsibility of the federal government to Indian tribes may best be realized.
(D) Technical Assistance. In their roles as trustees, the Services shall offer and provide technical assistance and information for the development of tribal conservation and management plans to promote the maintenance, restoration, and enhancement of the ecosystems on which sensitive species (including candidate, proposed, and listed species) depend. The Services should be creative in working with the tribes to accomplish these objectives. Such technical assistance may include the cooperative identification of appropriate management measures to address concerns for sensitive species (including candidate, proposed and listed species) and their habitats. Such cooperation may include intergovernmental agreements to enable Indian tribes to more fully participate in conservation programs under the Act. Moreover, the Services may enter into conservation easements with tribal governments and enlist tribal participation in incentive programs.
(E) Tribal Conservation Measures. The Services shall, upon the request of an Indian tribe or the BIA, cooperatively review and assess tribal conservation measures for sensitive species (including candidate, proposed and listed species) which may be included in tribal resource management plans. The Services will communicate to the tribal government their desired conservation goals and objectives, as well as any technical advice or suggestions for the modification of the plan to enhance its benefits for the conservation of sensitive species (including candidate, proposed and listed species). In keeping with the Services' initiatives to promote voluntary conservation partnerships for listed species and the ecosystems upon which they depend, the Services shall consult on a government-to-government basis with the affected tribe to determine and provide appropriate assurances that would otherwise be provided to a non-Indian.
Sec. 3. The Federal Trust Responsibility and the Administration of the Act.
The Services shall coordinate with affected Indian tribes in order to fulfill the Services' trust responsibilities and encourage meaningful tribal participation in the following programs under the Act, and shall:
(A) Candidate Conservation.
(1) Solicit and utilize the expertise of affected Indian tribes in evaluating which animal and plant species should be included on the list of candidate species, including conducting population status inventories and geographical distribution surveys;
(2) Solicit and utilize the expertise of affected Indian tribes when designing and implementing candidate conservation actions to remove or alleviate threats so that the species, listing priority is reduced or listing as endangered or threatened is rendered unnecessary; and
(3) Provide technical advice and information to support tribal efforts and facilitate voluntary tribal participation in implementation measures to conserve candidate species on Indian lands.
(B) The Listing Process.
(1) Provide affected Indian tribes with timely notification of the receipt of petitions to list species, the listing of which could affect the exercise of tribal rights or the use of tribal trust resources. In addition, the Services shall solicit and utilize the expertise of affected Indian tribes in responding to listing Petitions that my affect tribal trust resources or the exercise of tribal rights.
(2) Recognize the right of Indian tribes to participate fully in the listing process by providing timely notification to, soliciting information and comments from, and utilizing the expertise of, Indian tribes whose exercise of tribal rights or tribal trust resources could be affected by a particular listing. This process shall apply to proposed and final rules to: (i) list species as endangered or threatened; (ii) designate critical habitat; (iii) reclassify a species from endangered to threatened (or vice versa); (iv) remove a species from the list; and (v) designate experimental populations.
(3) Recognize the contribution to be made by affected Indian tribes, throughout the process and prior to finalization and close of the public comment period, in the review of proposals to designate critical habitat and evaluate economic impacts of such proposals with implications for tribal trust resources, or the exercise of tribal rights. The Services shall notify affected Indian tribes and the BIA, and solicit information on, but not limited to, tribal cultural values, reserved hunting, fishing, gathering, and other Indian rights or tribal economic development, for use in: (i) the preparation of economic analyses involving impacts on tribal communities; and (ii) the preparation of "balancing tests" to determine appropriate exclusions from critical habitat and in the review of comments or petitions concerning critical habitat that may adversely affect the rights or resources of Indian tribes.
(4) In keeping with the trust responsibility, shall consult with the affected Indian tribe(s) when considering the designation of critical habitat in an area that may impact tribal trust resources, tribally-owned fee lands, or the exercise of tribal rights. Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.
(5) When exercising regulatory authority for threatened species under section 4(d) of the Act. avoid or minimize effects on tribal management or economic development, or the exercise of reserved Indian fishing, hunting, gathering, or other rights, to the maximum extent allowed by law.
(6) Having first provided the affected Indian tribe(s) the opportunity to actively review and comment on proposed listing actions, provide affected Indian tribe(s) with a written explanation whenever a final decision on any of the following activities conflicts with comments provided by an affected Indian tribe: (i) list a species as endangered or threatened; (ii) designate critical habitat; (iii) reclassify a species from endangered to threatened (or vice versa); (iv) remove a species from the list; or (v) designate experimental populations. If an affected Indian tribe petitions for rulemaking under Section 4(b)(3), the Services will consult with and provide a written explanation to the affected tribe if they fail to adopt the requested regulation.
(C) ESA �7 Consultation.
(1) Facilitate the Services' use of the best available scientific and commercial data by soliciting information, traditional knowledge, and comments from, and utilizing the expertise of, affected Indian tribes in addition to data provided by the action agency during the consultation process. The Services shall provide timely notification to affected tribes as soon as the Services are aware that a proposed federal agency action subject to formal consultation may affect tribal rights or tribal trust resources.
(2) Provide copies of applicable final biological opinions to affected tribes to the maximum extent permissible by law.
(3)(a) When the Services enter formal consultation on an action proposed by the BIA, the Services shall consider and treat affected tribes as license or permit applicants entitled to full participation in the consultation process. This shall include, but is not limited to, invitations to meetings between the Services and the BIA, opportunities to provide pertinent scientific data and to review data in the administrative record, and to review biological assessments and draft biological opinions. In keeping with the trust responsibility, tribal conservation and management plans for tribal trust resources that govern activities on Indian lands, including for purposes of this paragraph, tribally-owned fee lands, shall serve as the basis for developing any reasonable and prudent alternatives, to the extent practicable.
(b) When the Services enter into formal consultations with an Interior Department agency other than the BIA, or an agency of the Department of Commerce. on a proposed action which may affect tribal rights or tribal trust resources, the Services shall notify the affected Indian tribe(s) and provide for the participation of the BIA in the consultation process.
(c) When the Services enter into formal consultations with agencies not in the Departments of the Interior or Commerce, on a proposed action which may affect tribal rights or tribal trust resources, the Services shall notify the affected Indian tribe(s) and encourage the action agency to invite the affected tribe(s) and the BIA to participate in the consultation process.
(d) In developing reasonable and prudent alternatives, the Services shall give full consideration to all comments and information received from any affected tribe, and shall strive to ensure that any alternative selected does not discriminate against such tribe(s). The Services shall make a written determination describing (i) how the selected alternative is consistent with their trust responsibilities, and (ii) the extent to which tribal conservation and management plans for affected tribal trust resources can be incorporated into any such alternative.
(D) Habitat Conservation Planning.
(1) Facilitate the Services' use of the best available scientific and commercial data by soliciting information, traditional knowledge, and comments from, and utilizing the expertise of, affected tribal governments in habitat conservation planning that may affect tribal trust resources or the exercise of tribal rights. The Services shall facilitate tribal participation by providing timely notification as, soon as the Services are aware that a draft Habitat Conservation Plan (HCP) may affect such resources or the exercise of such rights.
(2) Encourage HCP applicants to recognize the benefits of working cooperatively with affected Indian tribes and advocate for tribal participation in the development of HCPs. In those instances where permit applicants choose not to invite affected tribes to participate in those negotiations, the Services shall consult with the affected tribes to evaluate the effects of the proposed HCP on tribal trust resources and will provide the information resulting from such consultation to the HCP applicant prior to the submission of the draft HCP for public comment. After consultation with the tribes and the non-federal landowner and after careful consideration of the tribe's concerns, the Services must clearly state the rationale for the recommended final decision and explain how the decision relates to the Services' trust responsibility.
(3) Advocate the incorporation of measures into HCPs that will restore or enhance tribal trust resources. The Services shall advocate for HCP provisions that eliminate or minimize the diminishment of tribal trust resources. The Services shall be cognizant of the impacts of measures incorporated into HCPs on tribal trust resources and the tribal ability to utilize such resources.
(4) Advocate and encourage early participation by affected tribal governments in the development of region-wide or state-wide habitat conservation planning efforts and in the development of any related implementation documents.
(E) Recovery.
(1) Solicit and utilize the expertise of affected Indian tribes by having tribal representation, as appropriate, on Recovery Teams when the species occurs on Indian lands (including tribally owned fee lands), affects tribal trust resources, or affects the exercise of tribal rights.
(2) In recognition of tribal rights, cooperate with affected tribes to develop and implement Recovery Plans in a manner that minimizes the social, cultural and economic impacts on tribal communities, consistent with the timely recovery of listed species. The Services shall be cognizant of tribal desires to attain population levels and conditions that are sufficient to support the meaningful exercise of reserved rights and the protection of tribal management or development prerogatives for Indian resources.
(3) Invite affected Indian tribes, or their designated representatives, to participate in the Recovery Plan implementation process through the development of a participation plan and through tribally-designated membership on recovery teams. The Services shall work cooperatively with affected Indian tribes to identify and implement the most effective measures to speed the recovery process.
(4) Solicit and utilize the expertise of affected Indian tribes in the design of monitoring programs for listed species and for species which have been removed from the list of Endangered and Threatened Wildlife and Plants occurring on Indian lands or affecting the exercise of tribal rights or tribal trust resources.
(F)Law Enforcement.
(1) At the request of an Indian tribe, enter into cooperative law enforcement agreements as integral components of tribal, federal and state efforts to conserve species and the ecosystems upon which they depend. Such agreements may include the delegation of enforcement authority under the Act, within limitations, to full-time tribal conservation law enforcement officers.
(2) Cooperate with Indian tribes in enforcement of the Act by identifying opportunities for joint enforcement operations or investigations. Discuss new techniques and methods for the detection and apprehension of violators of the Act or tribal conservation laws, and exchange law enforcement information in general.
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 nondiscrimination 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. 59171; 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 "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.).
