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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON DC 20460

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MEMORANDUM

SUBJECT Administrator s Upcoming TribalTreaty Rights Announcement

FROM Jane Nishida

TO

Principal

Office of

Deputy

International

Assistant Administrator

and Tribal Affairs e

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AviS Garbow

General Counsel c Assistant Administrators

Regional Administrators

Dear Colleagues

The Administrator will be issuing a memorandum that celebrates the 30th Anniversary of our

1984 Indian Policy which will also provide a clear policy statement regarding the role of tribal

treaty rights in the context of EPA's activities

The Administrator's memorandum will acknowledge that under the Constitution treaties have the

same legal force as federal statutes It will further acknowledge the United States unique

government togovernment relationship th and trust responsibility toward federally

recognized Indian tribes As such EPA has an obligation to honor and respect tribal rights and

resources protected by treaties And while treaties do not expand EPA's authority EPA must

ensure its actions do not conflict with tribal treaty rights In addition EPA programs should be

implemented to enhance protection of tribal treaty rights and treaty covered resources when we

have discretion to do so

Many treaties reserve specific rights that relate to the environment by addressing a tribe's right to

maintain their traditional ways oflife including rights to hunt fish and gather Significantly

treaty rights exist both on reservations and off the reservations in areas often called ceded

territories or usual and accustomed places for hunting fishing and gathering Becausetreaty

rights intersect with EPA's mission to protect human health and the environment many tribes

have come to EPA asking us to take specific actions to protect and preserve their treaty rights

Many of you have been directly involved in requests to consider tribal treaty protections in your

decisions when they relate to tribes rights to hunt fish and gather

Internet Address URL • http www epagov

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To help with our assessment of treaty rights in particular contexts we will work together to

develop a basic analytical framework to evaluate when our proposed actions may affect treaty

rights After the Administrator memorandum is issued there will be an Agency wide effort led

by the Office of General Counsel and the American Indian Environmental Office to develop this

analytical framework for assessing applicable treaty rights as they relate to our work We expect

this draft framework will be ready for senior management review in early 2015 and then the

Agency will seek input from and consultation with tribal governments The goal is to have a final

analytical framework in place before the end of 2015 Until the framework is in place OIT A and

OGC staff will be available to assist you when particular issues present themselves

Through this policy statement the Agency will be recognizing the legally binding aspects of

treaties that we have an obligation to consider today and acknowledging that we also have

opportunities to exercise our discretionary authority to enhance the protection of treaty rights

We look forward to working together with you and will be convening aconference call to answer

any questions you may have on this policy statement In the meanwhile if you have any

immediate questions please feel free to contact either of us directly

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