# Presentation: 193317

## Session Objectives

- Provide a basic overview of key principles of federal Indian policy and federal government relationship with tribes
- Provide a basic overview of key principles of federal Indian law (with focus on jurisdictional issues)
- Discuss application of legal and policy principles to EPA programs

## Indian Tribes

- Federal Recognition
- U.S. Department of the Interior, Bureau of Indian Affairs, publishes list every two years
- Over 560 federally-recognized tribes
- Non-federally-recognized tribes
- Some may be seeking federal recognition
- Some may be recognized by states

## Indian Country

- Legal term defined at 18 U.S.C. Section 1151
- Includes Reservations and other forms of Indian country
- Generally a principal area of tribal government operation

## Some Important Eras in Federal Indian Policy

- Treaty-Making Among Governments
- Removal to Reservations
- Assimilation and Allotment
- Reorganization
- Termination
- Self-Determination (Current Era)

## 1984 EPA Indian Policy

- Support Tribal Self-Government
- Work Directly with Tribes on a Government-to-Government Basis
- Recognize Tribes as Primary Parties for Environmental Decision Making for Reservations
- Assist Tribes in Assuming Regulatory and Program Management Responsibilities for Reservations
- Reaffirmed by Administrator Johnson on 9/26/05

## 1994 Presidential Memorandum (59 FR 22951)

- Recognizes Government-to-Government Relationship Between Federal and Tribal Governments
- Calls for Consultation with Federally-Recognized Tribal Governments Prior to Actions that Affect Tribes

## Executive Order 13175 (65 FR 67249)

- Establish Regular and Meaningful Consultation with Tribal Governments on Policies That Have Tribal Implications
- Rules, Proposed Legislation, Other Actions that have Substantial Direct Effects
- Strengthen Government-to-Government Relationships with Tribes
- Reduce Imposition of Unfunded Mandates Upon Tribes

## EPA Activities In Indian Country

- Capacity Building
- Authorization of Tribal Programs
- Direct Implementation By EPA
- Cooperative Approaches to Implementation

## Tribes and EPA Statutes

- Statutes Authorizing EPA Approval of Tribal Programs
- Explicit – CAA, CWA, SDWA
- Implicit – TSCA, EPCRKA
*Backcountry Against Dumps* RCRA Case
- Statutes Providing a Special Role for Tribes
- 	– CERCLA, FIFRA
- Statutes Authorizing Funding for Tribal Programs – IEGAPA, Media-specific

## Tribal-Specific Eligibility Criteria

- Federal Recognition
- Government Exercising Substantial Powers
- Jurisdiction
- Capability

## What Is Jurisdiction

- Area of Authority
- Jurisdiction over Geographic Area
- Jurisdiction over Subject Matter
- Jurisdiction over Persons

## Geographic Area: Indian Country

- Indian Country: Legal term defined at 18 U.S.C. Section 1151
- Includes Reservations (formal and informal); Dependent Indian Communities; Individual Indian Allotments
- What about Ceded Territory and Tribal Usufructuary Rights?

## Subject Matter: EPA Programs

- EPA generally interprets federal environmental programs to extend nationwide, including Indian country
- Implementation of many EPA programs requires jurisdiction/authority

## Persons Residing in Indian Country

- Members of the Tribe
- Non-Members (Indian or Non-Indian) of the Tribe

##  Jurisdiction

- Tribal
- State
- Federal

## Tribal Jurisdiction

- Over Members and Territory Generally
- Over Non-Members on Fee Lands
- Inherent Authority – The *Montana* Test
- Delegated Authority – The Clean Air Act
- Criminal Authority

## Inherent Tribal Authority over Non-Members on Fee Lands

- Supreme Court Case Law – Application of the *Montana* Test
- EPA’s Approach – Serious and Substantial Impacts
- Flathead Reservation Water Quality Standards; Other Cases

## Delegated Tribal Authority

- Congressional Authority to Delegate
- Express Congressional Language
- Clean Air Act/Tribal Authority Rule Litigation

## State Jurisdiction

- States Generally Lack Jurisdiction in Indian Country
- Congress Can Extend by Statute
- SAFETEA (Oklahoma)
- MICSA (Maine)
- Non-members on Fee Lands?
- EPA’s Approach

## Federal Jurisdiction

- Generally Broad Jurisdiction in Indian Country
- EPA Statutes

## Cooperative Approaches to Jurisdiction

- Primacy Entity Needs a Source of Authority
- A Tribe Cannot Give Away its Jurisdiction to a State Simply Through A Cooperative Agreement
- Examples: Permitting; Others

## Litigation

- Regarding EPA Actions on Tribal Program Applications
- Regarding EPA Actions on State Program Applications
- Regarding EPA Direct Implementation
- Others

## Federal Trust Responsibility to Federally-Recognized Tribes

- Arises from Treaties, Statutes, Executive Orders, Historical Relations Between Federal Government and Tribes
- General Component of Trust Responsibility
- Specific Component of Trust Responsibility

## Application of Principles to CAA – Capacity Building

- Capacity Building
- EPA Provides Funding to Tribes
- EPA Provides Training to Tribes

## Application of Principles to CAA – Authorization of Tribal Programs

- CAA Section 301(d)
- Congressional Delegation for Reservations
- Tribal Programs Over Non-Reservation Areas
- Processing Tribal Program Applications: 40 C.F.R. 49.9 and EPA Guidance

## Application of Principles to CAA – Direct Implementation By EPA

- EPA’s Approach to Authority/Approved Programs
- National Rules
- Regional Rules
- Source-Specific Approaches

## Application of Principles to CAA – Cooperative Approaches

- Tribes Assist EPA with Implementation
- Tribal/State/EPA Approaches

## Application of Principles to CAA – Consultation With Tribes

- Policy and Legal Bases for Tribal Consultation
- Consider Impacts on Tribes Early in Action Development Process
- Work With EPA’s Tribal Program Experts

## OGC Indian Law Contacts

- Cross-Cutting Issues Law Office
- Air and Radiation Law Office