From: Stoneman, Chris

Sent: Thursday, November 12, 2015 10:29 AM

To: RWilson@ndnlaw.com

Cc: Childers, Pat; Mckelvey, Laura; Green, Gregory

Subject: RE: Revised Definition of Indian Country

Hi Rollie --

I am writing in response to your email below asking about why we are 

proposing to change the 

definition of Indian country in the same action in which we are proposing 

a FIP for oil and natural gas 

sources in Indian country (80 FR 6554, September 18, 2015). 

We have proposed to revise the definition of Indian country to comport 

with the court decision that 

addressed EPA’s jurisdiction to implement the Federal Indian Country 

Minor NSR rule: Oklahoma Dept. 

of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). The court 

decision also affects the 

definition of Indian country under the Federal Major New Source Review 

Program in Indian Country so 

we are proposing to change the definition of Indian country under the 

Federal Indian Country Major NSR 

rule as well. 

Specifically, the Federal Indian Country Minor NSR rule and Federal 

Indian Country Major NSR rule 

currently define "Indian country" to include three categories of lands 

consistent with 18 U.S.C. 1151, i.e., 

Indian reservations, dependent Indian communities, and Indian allotments. 

The U.S. Court of Appeals 

for the District of Columbia Circuit vacated the rule with respect to 

non-reservation areas of Indian 

country (i.e., dependent Indian communities and Indian allotments) 

(Oklahoma Dept. of Environmental 

Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014)). The court held that the 

states, not tribes or the EPA, have 

initial primary responsibility for implementation plans under CAA section 

110 in non-reservation areas of 

Indian country in the absence of a demonstration of tribal jurisdiction 

by the EPA or a tribe. We are 

proposing to revise the definition of Indian country in §§49.152(d) and 

49.167 to add a clause indicating 

that, for purposes of the Federal Indian Country Minor NSR rule and the 

Federal Indian Country Major 

NSR rule, references to Indian country include all Indian reservation 

lands where no EPA-approved 

program is in place and all other areas of Indian country where no EPAapproved program is in place and 

over which an Indian tribe, or the EPA, has demonstrated that a tribe has 

jurisdiction.

 
I hope that this answers your questions. Please let me know if we can 

clarify anything further.

Thanks.

Chris Stoneman

USEPA

919/541-0823

Stoneman.chris@epa.gov

 

From: Rollie Wilson [mailto:RWilson@ndnlaw.com] 

Sent: Monday, November 09, 2015 6:41 PM 

To: Childers, Pat <Childers.Pat@epa.gov> 

Subject: Revised Definition of Indian Country

Hi Pat, 

During our meeting last week we had a brief conversation about EPA’s 

proposed FIP for oil and 

gas minor sources in Indian Country - I hope I said all that right. The 

Tribe is concerned about a 

change in the definition to Indian Country, although I did not do a good 

job recalling the issue 

for the meeting participants. It appeared at the meeting that the EPA 

folks present said that there 

would be no change to the definition and/or they supported the Tribe’s 

view. But, when I’ve 

pulled up the language again, it seems to me that there is a potential 

change. I have not figured 

out yet whether the Tribe thinks it is good or bad. But, with a better 

recollection of the 

information below, can EPA tell us a little more about what’s going on 

here and why this is 

being proposed to be added to the definition. Thanks, Rollie

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

 The revised definition of Indian Country adds a new subpart 4 to 

its recitation of the Indian 

criminal jurisdiction definition of Indian country. New subpart 4 in 40 

CFR Sections 49.152; 49.167 

provides that: 

Indian country, as defined in 18 U.S.C. 1151, means the following as 

applied to this 

program:

(4) For purposes of this rule, references to Indian country include all 

Indian reservation 

lands where no EPA-approved program is in place and all other areas of 

Indian country 

where no EPA-approved program is in place and over which an Indian tribe, 

or the 

EPA, has demonstrated that a tribe has jurisdiction. 

80 Fed. Reg. 56575.
++++++++++++++++++++++++++++++++++++++++++++

Rollie Wilson

Fredericks Peebles & Morgan LLP

401 9th Street NW, Suite 700

Washington, DC 20004

Telephone: (202) 450-4887

Cell: (202) 340-8232

Fax: (202) 450-5106

www.ndnlaw.com

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