Self-Determining Environmental Justice for Native America

Indian Country environmental justice

In and around Indian country, however, apart from any human health risks, environmental pollution and habitat destruction often raise significant questions of self-determination for indigenous peoples because of their longstanding cultural connections to the natural environment. The First Peoples of Color Summit in 1991, arguably the EJ movement's official kickoff event, explicitly equated environmental justice with cultural and environmental self-determination for all peoples.2 That same year, the United States Environmental Protection Agency (EPA) acknowledged hearing American Indian tribes explain their view of environmental degradation as further destruction of the remaining reservation land base, and thus a threat to tribal self-preservation.3

The federal government's initial programmatic EJ actions in 1992 connected environmental protection with indigenous cultural preservation. EPA's first report on environmental justice (then called environmental equity) specifically included several Indian country issues, and admitted frankly that its programs could better incorporate indigenous cultural considerations like subsistence practices and higher than average wild food and fish consumption rates.4 EPA's first EJ comparative risk study was performed in Indian country, and assessed whether American Indians faced different environmental risks than others due in large part to their different cultural and religious values and practices.5 EPA's first EJ strategy, issued in 1995, recognized the federal government's trust responsibility to Indian tribes, and promised programmatic actions for ensuring protection of the Indian country environment.6

Programmatic change was necessary because the problem was large: despite extensive federal and state regulatory development since the modern environmental law era began in 1970, there was nearly a complete absence of effective environmental regulatory programs in Indian country in 1995. The most significant environmental concern facing American Indians wasn't fish contamination, or water pollution from active and abandoned mines, or air pollution from energy facilities, or open trash dumps—it was developing governmental infrastructure capable of effectively addressing all those issues and more. So while the mainstream EJ movement developed in response to charges that federal and state agencies were running their programs in ways that left minority and low-income communities at disproportionately higher risks,7 the most pressing environmental justice concern in Indian country was an abject regulatory void. Indeed, to this day, only a fraction of Indian country benefits from fully active environmental regulatory programs.

The source of the problem traces back to the initial design of the modern environmental law era in the 1970s. In that “Decade of the Environment” Congress elevated the national interest in environmental protection far beyond simply assisting states in exercising their inherent powers for protecting the general public's health and welfare. The statutes Congress enacted that decade regulated pollution emissions to land, air, surface water, and groundwater, and managed hazardous substances and waste. These laws featured a new model of “cooperative federalism,” where states use their inherent powers to implement federally established regulatory programs so as to meet federal minimum requirements or more stringent ones set by the states.8 With laws covering nearly every environmental media and 50 state partners, EPA could, Congress thought, ensure at least a minimum level of environmental quality nationwide, from border to border and ocean to ocean.

The new federal-state partnership, however, inadvertently created a regulatory gap undermining nationwide environmental protection. The newly minted environmental laws made no reference to the tens of thousands of square miles of Indian reservations and non-reservation Indian lands (collectively known as Indian country) occupied by American Indian tribes. The United States Constitution committed Indian affairs to the federal government, so the new federal environmental laws probably applied in Indian country despite their silence on the question.

But as for the plan of state partners assisting EPA in achieving national protection, contemporary decisions of the U.S. Supreme Court cast doubt, or at least substantial uncertainty, on the comprehensiveness of states' regulatory jurisdiction in Indian country in the absence of specific congressional authorization.9 The modern environmental statutes explicitly acknowledge states' primary management responsibilities, but from its inception EPA has consistently interpreted those general references as falling short of express authorization for Indian country implementation,10 and thus has declined to approve state environmental programs there. When challenged, courts have deferred to EPA's view of the statutes it administers, invoking basic administrative law rules.11

EPA recognized, of course, that its decision not to delegate Indian country programs to states threw a monkey wrench into Congress' cooperative federalism works. Congress built the modern environmental regulatory paradigm on a carefully crafted federal-state partnership; without a local partner, some of EPA's key programs work much less effectively, or not at all. In fact, more than a decade before the Agency's official EJ program began, EPA admitted a potential regulatory gap existed in Indian country, doing so in language that foreshadowed the coming EJ movement:

[W]ithout some modification, our programs, as designed, often fail to function adequately on Indian lands. This raises the serious possibility that, in the absence of some special alternative response by EPA, the environment of Indian reservations will be less effectively protected than the environment elsewhere. Such a result is unacceptable.12

The lack of comprehensive programs in Indian country was unacceptable because it meant health and welfare risks usually prevented elsewhere could accumulate into disproportionate environmental risks for communities of color. The Indian country regulatory gap also called into question the federal government's trust responsibility to Indian tribes. From nearly the beginning, the Supreme Court's federal Indian law has recited (though not always enforced) a fiduciary obligation on the part of the tribes' self-appointed guardian.13 The federal trust responsibility, combined with a broad constitutional power, generated nearly two hundred years of extensive federal control of Indian country.

EPA's Indian Program

EPA's official agency-wide Indian policy expressly acknowledges the federal trust responsibility as a key principle in its Indian country management approach.14 And its initial solution to the Indian country regulatory gap fell right in line with the paternalistic history of United States Indian policy. Lacking a state partner, EPA simply elected to run the necessary programs or program elements in Indian country itself. Congress had vested authority in EPA to implement particular program elements in certain instances when state programs fell below federal expectations. State environmental programs could not be effective in Indian country if states lacked jurisdiction, so it was necessary for EPA to fill the gap.

But a permanent EPA presence in Indian country is problematic for at least two reasons. First, federal implementation is at odds with Congress' belief that local governments are better positioned to conform uniform federal requirements to site-specific conditions and needs. The cooperative federalist model promotes federal-state coordination and is mutually reinforcing because states are best placed to address specific day-to-day operations and problems, while EPA is best able to address long-range, transboundary, national, and international issues.15 Second, EPA direct implementation in Indian country harkens back to the era of near total federal Indian control, an outdated approach discredited coincidentally in the same year modern environmental law began. In fact, President Richard Nixon created EPA within a few months of criticizing historic federal Indian control and calling for a new national Indian policy of tribal self-determination featuring tribal management and control of federal Indian programs.16

Tribal program management was an option because of tribes' fundamental difference from other groups of color seeking environmental justice: federal Indian law and policy recognize Indian tribes as “unique aggregations possessing attributes of sovereignty over both their members and their territory.”17 Tribes, in other words, are governmental sovereigns. Their governmental status and power predate the formation of the Union; early international law treated them as nation-states and European nations conducted affairs with them at the federal or national level. Tribes' sovereignty is inherent and independent in that it does not derive from the federal government, although it has been made subject to the United States' unilateral assertion of superior sovereignty over the lands occupied by the tribes and over the tribes themselves.18 Federal Indian law arrogates to Congress and the Court the power to divest aspects of tribes' inherent sovereignty, either explicitly or implicitly, but powers not taken are retained.19

Tribal sovereignty was the key to solving the Indian country environmental regulatory gap, and doing so in a manner consistent with the national policy of tribal self-determination. EPA would partner with tribal governments for the implementation of federal programs in Indian country. Shortly before the First People of Color Summit in 1991 (which itself linked tribal sovereignty to achieving environmental justice), EPA said tribes viewed environmental management of Indian country as “an act of tribal self-preservation that cannot be entrusted to others.”20 EPA's 1992 comparative risk report concluded that developing effective tribal environmental management infrastructure could significantly reduce the disproportionate risks Indians faced from pollution sources both on and off-reservation. In 1995, the newly created Office of Environmental Justice (OEJ) issued EPA's first EJ strategy, which adopted tribal program development as one of its primary objectives for Indian country EJ.

OEJ's main strategy was to work with tribes in a government-to-government fashion consistent with tribal sovereignty and the federal trust responsibility, and coordinate with another newly created EPA office, the American Indian Environmental Office (AIEO). AIEO was responsible for integrating agency-wide multimedia policies and activities affecting the public health and environment of Indian country, and in particular, the development and enhancement of tribal environmental regulatory program capacity. Wholly apart from any official EJ effort, AIEO's existence and its mission grew directly out of two decades of various EPA offices confronting Indian country's unique issues.

In the 1970s, uncertainty over the comprehensiveness of federal-state partnerships arose quickly and led the Agency to experiment with unprecedented federal-tribal partnerships and direct outreach to tribes.21 Although the 1970 Clean Air Act (CAA) contained no tribal program role, in 1974 EPA authorized tribal redesignations of air quality on Indian reservations under the same procedural requirements and substantive standards as state redesignations.22 The next year EPA authorized state-like tribal programs for certifying commercial pesticide applicators on Indian reservations even though the federal pesticides statute was also silent on Indian country implementation.23

Those actions were clearly consistent with the nation's emerging tribal self-determination policy, but they were bold nonetheless: agencies possess only the legislative authority delegated to them by Congress, and courts routinely invalidate agency actions taken in excess of their congressional delegation. Indeed, EPA's tribal air role was directly challenged by industry players that were located adjacent to Indian country and feared increased environmental requirements as a result of a tribal air quality redesignation. A federal appellate court upheld the administratively created tribal role, deferring to the Agency's interpretation that the silent CAA allowed EPA to approve state-like roles for tribes, finding the approach consistent with inherent tribal sovereignty.24 Congress also liked the concept, codifying the tribal air and pesticide roles (and thereby legitimating EPA's tribal self-determination experiments) within three years of their creation.25

Those judicial and legislative affirmations prompted EPA's adoption in 1980 and 1984 of official agency-wide Indian policies that specifically identified tribal self-determination as a core element of EPA's Indian country program.26 EPA would also give special consideration to tribal interests consistent with the federal trust responsibility over Indian lands and resources. Recognizing EPA's prior assistance for state program development, the Indian policies pledged technical and financial assistance for tribes, as well as resolution of legal and other barriers to tribal program development.

First on the list was the environmental laws' silence on Indian country. With tribes' assistance, in the mid-1980s and early 1990s EPA secured amendments to most of the major environmental statutes providing the specific congressional mandate it had previously lacked.27 The first came in the 1986 Safe Drinking Water Act amendments, where Congress said “[EPA's] Administrator … is authorized to treat Indian Tribes as States under this title.”28 These so-called “treatment-as-a-state” (TAS) provisions often left to the Administrator's discretion which regulatory programs were appropriate for delegation to tribal governments, although in some instances Congress specified particular programs available for TAS delegations. Congress also imposed threshold eligibility criteria for tribal TAS applications: EPA could partner only with Indian tribes that were “federally recognized,” had governing bodies exercising “substantial” governmental powers, with jurisdiction over the area or the activities to which the environmental program would apply, and technical capacity for operating the program consistent with minimum federal requirements and standards.29

The tribal regulatory program roles authorized by the TAS amendments are unique to their respective statutory regimes, but generally they span the spectrum of governmental environmental management from taking initial inventory of environmental quality to setting regulatory standards, and from issuing pollution discharge permits to enforcing environmental law violations. All posit a relative equality between tribal and state governments in both the opportunities and limitations presented by the cooperative federalist model. Several amendments included provisions for resolving tribe-state disputes, underscoring Congress' expectation that adjacent tribes and states might make different but legitimate value judgments for similar environmental media.

Tribal self-determination

The Pueblo of Isleta, a small Indian tribe located on the Rio Grande River in arid, central New Mexico, demonstrated the dramatic legal significance of Congress' expectation in the mid-1990s. Just five miles upstream from Isleta is the City of Albuquerque's sewage treatment plant and its daily discharge of millions of gallons of treated human wastewater into the river. The Clean Water Act (CWA) regulates Albuquerque's discharge by a permit that came up for renewal just after Isleta became the first tribe in the country to have EPA approve its water quality standards (WQS) under the CWA's TAS provision.

Like the State of New Mexico, Isleta exercised the CWA authority to set WQS at levels beyond the minimum federal criteria for preserving “fishable and swimmable” waters. Unlike the State of New Mexico, Isleta had set its WQS based in part on water quality criteria explicitly linked to the goal of preserving tribal members' religious and traditional uses of the river, which involved the incidental ingestion of water. Several of the Pueblo's WQS were thus more stringent than the WQS set by New Mexico for the stretch of river immediately upstream of the Pueblo's northern border. In drafting the City's new permit, EPA took the same approach it uses where two adjacent states set different WQS; EPA imposed permit conditions on the discharger in the upstream jurisdiction designed to ensure compliance with WQS there and in the downstream jurisdiction.

Albuquerque sued EPA, arguing a host of theories all directed at stopping tribes from setting WQS more stringent than the minimum federal criteria. Two federal courts rejected the City's claims, and the Supreme Court declined review.30 As an administrative agency charged by Congress with implementing the federal environmental laws, EPA was entitled to the courts' deference in resolving various ambiguities in the CWA TAS provision. And the Pueblo's sectarian-based WQS did not mean EPA's approval violated the First Amendment because it also served a clear secular goal: protection of human health from exposure to water pollutants. The First Amendment, the court said, bars the federal government from advancing or promoting one religion over another but does not mandate insensitivity to religious groups, and EPA's approval seemed consistent with federal policy for preserving American Indian religious exercises.31

The Isleta case showed two particularly important consequences of TAS and tribal WQS under the CWA. One is the opportunity for making direct connections between indigenous environmental interests and federal environmental law, as defined by the tribe itself. Isleta translated traditional cultural and spiritual values into the rubric of federal environmental quality standards, which then affected the substantive requirements of federal pollution permits issued under the modern federal environmental statutes.Animated by a tribal voice, the federal program is more likely to encompass tribal interests and thus achieve environmental justice.

The other consequence of tribal TAS programs is their potential extraterritorial impact. The City is located in New Mexico outside the Pueblo's jurisdiction so it is subject to federal but not Pueblo law, but EPA used its federal jurisdiction to force changes in the City's operations based on meeting environmental value judgments made by the Pueblo exercising governmental sovereignty over its territory downstream. That effectively created a buffer of sorts between the Pueblo and the source of the environmental risk, which presumably diminished the threat to cultural self-preservation.

These benefits and other reasons have attracted a good deal of tribal interest in program delegation, although the overall number of tribes operating EPA-delegated programs is relatively small. EPA's budget and staff have never been sufficient to provide tribes with the kind of financial and technical assistance EPA gave states at the start of the modern environmental law era. Two hundred years of vacillating Indian policy have also left many tribes with limited or no governmental infrastructure capable of addressing complex regulatory challenges. And both EPA and tribes are confounded by unpredictable Indian law decisions coming out of the Supreme Court.

Recent cases recite the foundation Indian law principles as applicable law, and then come to incongruous results. The Court says Indian tribes' inherent sovereignty includes civil jurisdiction over non-members in Indian country when their activities threaten or directly affect tribal health and welfare, but then denies tribal jurisdiction over non-member activities like hunting, fishing, driving, serving tourists and conducting commercial transactions,32 which are routinely regulated by states' inherent public welfare powers. The Court says Congress must express a “clear and plain” intent to change the boundaries of Indian country, and then determines a particular tribe's territory has diminished or disappeared on the basis of a long-rejected, turn-of-the-century policy that the Court admits took root before Congress even recognized the boundary question was an Indian law issue.33 The only Indian country environmental law case to make it to the Supreme Court to date is one of these so-called diminishment cases; the Court decided a landfill proposed within the official borders of an Indian reservation was nonetheless not in Indian country and thus subject to state authority because an 1894 statute opening some of the reservation lands to non-Indians implicitly shrank the reservation.34