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The implementation of enviromnental policy on Indian lands: A
case study on the Pueblo of Isleta
Ulbricli, Bryan Armaad, M.A.
The University of Arizona, 1993
Copyright ©1993
by Ulbrich, Bryan Armand. All rights reserved.
UMI
SOON.ZeebRd
Ann Aibor,MI48106
THE IMPLEMENTATION OF ENVIRONMENTAL POLICY ON INDIAN LANDS:
A CASE STUDY ON THE PUEBLO OF ISLETA
by
Bryan Annand Ulbrich
Copyright ® Bryan Armand Ulbrich 1993
A Thesis Submitted to the Faculty of the
AMERICAN INDIAN STUDIES PROGRAM
In Partial Fulfillment of the Requirements
For the Degree of
MASTER OF ARTS
In the Graduate College
THE UNIVERSITY OF ARIZONA
19 9 3
2
STATEMENT BY AUTHOR
This thesis has been submitted in partial fulfillment of
requirements for an advanced degree at The University of
Arizona and is deposited in the University Library to be made
available to borrowers under rules of the Library.
Brief quotations from this thesis are allowable without
special permission, provided that accurate acknowledgement of
source is made.
Requests for permission for extended
quotation from or reproduction of this manuscript in whole or
in part may be granted by the copyright holder.
SIGNED:
APPROVAL BY THESIS DIRECTOR
This thesis has been approved on the date shown below:
David E. Wilkins
Professor of Political Science
Date
3
ACKNOWLEDGEMENTS
I would like to express my sincerest gratitude to Dr.
David Wilkins for his patient support and for the time,
energy, and ink he devoted to all of my work during rr^ tenure
at the University of Arizona.
I would also like to thank
Professors Tom Holm and Jay Stauss for their advice and
thoughtful suggestions. Shirley Dickey also deserves special
mention for lighting my way through the institutional maze.
I
owe
deep
thanks
to
Teih-nen
and
Rita
Kirk,
in
particular, for the hospitality and kindness I was given while
visiting their nation.
In addition, I would like to thank
Chairman Hena and Lt. Governor Olguin for their time and
input.
Finally, were it not for the unrelenting support of Norm
and Sue Ulbrich I would not have written a word, except maybe
on a subway wall. And a last salute goes to the Chameleon for
all the unintentional inspiration.
I assume all responsibility
for the contents of this study.
4
DEDICATION
This work is dedicated to Edward R. Colburn whose love for
debate was fueled by an intense desire to understand.
5
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
:
3
DEDICATION
4
ABSTRACT
5
I. INTRODUCTION
Literature Review
II.
THE DEVELOPMENT OF ENVIRONMENTAL PROTECTION
POLICY ON INDIAN LANDS
The Jurisdictional Void, 1969-1977
EPA and Judicial Recognition, 1977-1984
Indian Policy Implementation, 1984-present
III. THE ISLETA APPROACH
The Isleta Community
The Wall Colmonoy Case
The Pueblo of Isleta Water
Quality Standards
The All Indian Pueblo Council
The Monitoring - Educational
Center at Isleta
7
15
23
27
38
51
71
73
79
81
92
97
IV. CONCLUSION
107
LIST OF ABBREVIATIONS
Ill
TABLE OF CASES
112
WORKS CITED
113
5
ABSTRACT
This paper examines the implementation of environmental
policy on Indian land, by conducting a case study of the
Pueblo
of
Isleta.
In
1992
the
EPA
acknowledged
the
jurisdictional authority of the Pueblo to establish water
quality standards for the Rio Grande.
The Pueblo has since
attempted to implement these standards despite opposition from
the city of Albuquerque.
The premise of this paper is that
tribes, in general, have assumed a greater role in regulating
their
environments
although
financial,
technical,
and
statutory impediments continue to thwart complete tribal
control.
By examining the historical process of inclusion of
tribes into the regulatory arena and applying this to the
Pueblo of Isleta, this paper presents a concise analysis of
one tribes response to the intricacies of
regulation.
environmental
7
CHAPTER I
INTRODUCTION
One of the defining purposes of government is to protect
the health and welfare of the people who established that
governing system; in most cases this is not questioned.
However, until 1986 the various Indian tribes of North America
were essentially denied the right to regulate and protect
their environments. When the Environmental Protection Agency
(EPA) adopted the EPA Indian Policy Statement of 1984, it in
theory ended a long standing debate over who was the proper
regulating authority for reservation environments.
now supports tribes in their attempts
to
The EPA
formulate and
establish environmental control standards, but has there been
any substantive change since this policy was enacted?
This study will serve two purposes.
First, it will
examine the historical process of legislative inclusion for
tribal governments in environmental affairs.
While doing so
we will also examine the role of the EPA in interpreting and
implementing these statutes.
Finally, this will also review
the role of the federal courts in defining and affirming
tribal environmental regulatory jurisdiction. Second, we will
test the effectiveness of the legislation, court decisions,
and EPA policy by investigating the problems and successes
that the Pueblo of Isleta has incurred
while trying to
8
implement environmental standards, namely water quality codes,
on their lands.
This study is important for several reasons.
First,
tribal control over environmental regulation is a vital aspect
of tribal sovereignty.
The power to protect the health and
welfare of its people is fundamental to any government. Many
tribal communities have seen the degradation of their land,
water,
and
air
quality
due
to
mineral
extraction,
manufacturing facilities, or the discharge and dumping of
hazardous waste.
In general, this waste and pollution is
generated at the expense of the tribal communities, to benefit
the off-reservation population.
Tribes retain a basic,
inherent right to control the quality of the lands they have
reserved for themselves.
bureaucratic
confusion,
If this power is circumscribed by
general
apathy,
or
legal
manipulations, then the U.S. Government's policy of tribal
self-determination is merely political rhetoric.
Second, as America's population increases waste and
pollution are likely to grow exponentially.
The federal
government and the state governments are making some attempts
to clean up and protect the lands under their jurisdiction.
However, because tribes are inherently sovereign and have
retained many significant aspects of their sovereignty through
treaties with the U.S. government the EPA does not generally
allow state regulation into reservation borders. The Federal
9
Courts have also denied state jurisdiction over environmental
codes
on
Indian
land.
Only
recently
has
the
federal
government begun to include Indian tribes in environmental
legislation.
However,
tribes
are
still
defined
as
municipalities and local governments in some legislation, both
of which fall under the auspices of state control.
Yet,
Congress and the EPA also recognize that tribes have the
authority to regulate their own environments.
A definiative
set of guidelines would greatly reduce the jurisdictional
ambiguity
and
benfit
all
the
parties
involved
in
the
environmental regulatory arena.
Finally, legal scholars have extensively analyzed the
legal questions, for example: 1) How does environmental
legislation fit into the larger framework of federal Indian
law?
2)
What
is
the
role
of
the
states,
the
federal
government, the courts, and most importantly, the tribes in
formulating and implementing environmental policy on Indian
lands?
But what is lacking is an in depth analysis to
determine the effectiveness of the EPA Indian policy, which,
in
theory,
recognizes
tribal
governments
as
the
proper
regulating authority.
After conducting some preliminary research it is evident
that tribes must overcome several different, but tenuously
related obstacles if they are ever to assume regulatory
control over their territories. Tribes have to deal with the
10
federal government, the EPA, the BIA, the various state
governments, surrounding off-reservation coinmunities,
and
their own internal issues. These barriers are interconnected
and form a self-perpetuating cycle as each factor feeds off
the other.
Instead of utilizing their time, energy, and
capital to enact and enforce environmental controls, the
communities have become further entrenched in a battle against
the bureaucratic machine.
However, the advances made by
tribes, like Isleta, demonstrate that these barriers can be
overcome. Isleta offers an example of one tribe that has been
able to work within the limited constraints of the EPA and
still
manage
to
develop
a
program
to
implement
their
jurisdictional authority.
One problem in the history of Indian-white relations is
that scholars, policy makers, and the public have perceived
Indians as one cohesive, identifiable racial and political
group.
This approach ignores differences in the geography,
culture, history, and needs of the various five hundred and
eleven tribes.
A tribal specific approach focuses on only a
few communities, thus allowing the reader to understand the
full implications of a given policy on the people it directly
affects. Common problems definitely exist in Indian country,
but attempting to solve these with one overarching solution
has proven ineffective if not detrimental to Indian tribes.
By approaching Indian policy on a tribal specific basis, this
11
paper accepts the premise that tribes are separate polities
and should be dealt with individually.
Tribal sovereignty presents an interesting conundriim. If
tribes are sovereign, then does the federal government owe
them anything beyond treaty provisions?
Furthermore, the
Pueblo of Isleta never signed a treaty with the U.S.; so on
what grounds should the United States be compelled to finance
Isletan environmental programs?
Early
Congress,
in
the nineteenth century
aided
by
the
Supreme
authority over tribal affairs.
the United
Court,^
assumed
States
plenary
Plenary can be defined as
either "exclusive" or "all-encompassing."
courts have employed both definitions.
Congress and the
In addition, the
Courts have misused Justice John Marshall's notorious analogy
which stated that the federal/tribal relationship resembled
that of a guardian to a ward^ by stating that tribes are
wards.
Thus, the United
States
has assumed
a
trust
responsibility to help protect the interests of tribes.
As
will be discussed later, the Pueblos of New Mexico were
brought into this general framework by the Supreme Court in
^See United States v. Kagama 118 U.S. 375 (1886);
Lonewolf V. Hitchcock 187 U.S. 553 (1903).
^Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1831).
12
1913-^ The U.S. Congress has also enacted
environmental
legislation that tribes are expected to enforce. States were
aided by congressional funds to carry out the provisions of
these federal laws and tribes deserve the same financial
commitment if they are expected to abide by federal standards.
The Pueblo of Isleta seeks only the ability to adequately
enforce not only their own laws, but the laws of Congress.
Moreover, the environmental degradation the Pueblo of
Isleta is attempting to reverse has been generated by the city
of
Albuquerque,
companies.
the
Because
state
this
of
New
pollution
Mexico,
is
and
created
private
off
the
reservation and provides profits to the upstream polluters at
the expense of the Isleta community, the people of the United
States have an obligation to finance, at least in part, the
side effects that their economic pursuits present.
In examining Isleta Pueblo's attempts to enact and
implement water quality standards it will become evident that
they
face
many
of
the
same
problems
as
other
tribal
governments. The tribe enthusiastically sought recognition as
a state, but was not aware what the full implications of such
status were.
which
is
Now they are struggling to implement a plan
presently
beyond
their
financial
capabilities.
Finally, Isleta, like any government, has faced it's share of
^Supra at note 117.
13
internal problems which impede progress.
The focus of this
paper is not to allocate blame, such an approach is simplistic
at best and trivializes the issues by creating an adversarial
mentality.
Communication and cooperation amongst all of the
actors is needed, not finger pointing.
The paper will,
however, examine Albuquerque's arguments against the Pueblo
standards in order to offer a balanced analysis.
By focusing
on one community we can better explore all of the contributing
factors.
A case study on Isleta will not only highlight the
problems that tribes face, but offer some possible solutions
as well.
Pueblo
The Isleta Tribe is a member of the All Indian
Council
(AIPC).
The
AIPC
is
an
intratribal
organization comprised of the nineteen Pueblos in New Mexico.
This organization consolidates federal grants in order to
establish various programs on each Pueblo.
The AIPC then is
able offer technical resources that otherwise may not be
available if the same funds were split amongst all the members
individually. The AIPC is not a governmental entity and holds
no jurisdictional authority over its members.
Thus, the
individual tribal governments retain decision making powers.
Isleta has also proposed to construct an environmental
research center as means to gain the technical expertise
necessary for effective regulation.
This would not only
enhance the technical knowledge of the people, but would help
14
Stimulate short and long term economic development,
create
employment within Pueblo borders, help address the issues
surrounding education in general, and aid the non-Indian
community in the search for understanding of and solutions for
the world's environmental problems.
15
Literature Review
The secondary source material on tribal control of
environmental regulation is largely confined to critical legal
analysis by legal scholars.
This approach focuses on the
language of laws to determine what is allowed and intended by
Congress.
laws."
It also examines how the courts interpret the
This material is best broken down into three historic
periods because the nature of the essays reflect the changing
situations: 1) the jurisdictional debate before 1977; 2)
quasi-recognition following the Clean Air Act Amendments of
1977; 3) and post-EPA policy of 1984.
Prior to 1977, Congress had not included Indian tribes in
environmental legislation and it was unclear if they intended
the states, the tribes, or the EPA to manage reservation
lands.
Scholars attempted to define the legal basis for
tribal control verses state control of environmental quality.
Lynn Petros wrote perhaps the most definitive article^, in
which she examined the legal precedents for both state and
tribal control.
where tribes fit.
She then analyzed the legislation to see
Because the Supreme Court has held that
states do not have jurisdiction over Indian lands unless they
''See attached bibliography.
^Petros, Lynn E. "The Applicability of the Federal
Pollution Acts to Indian Reservations: A Case for Tribal SelfGovernment." University of Colorado Law Review 48(1976-77):
63.
16
are expressly granted those rights by Congress, Petros argues
that tribal governments are the proper authority to regulate
and m.anage the environmental quality of their lands.
Frank Schnidman's article "Indians and the Environment:
An
Examination
of
Jurisdictional
Issues
Relative
to
Environmental Management"® also concluded that tribes are
sovereign in environmental affairs. However, he also proposed
"an
intergovernmental
protection,
mechanism
preservation, and
resources on Indian lands."''
to
deal
enhancement
with
of
the
the
use,
finite
By this he means tribal-state
agreements. Though states have no legal power to infringe on
tribal environmental matters, tribal-state agreements could be
beneficial, so long as the states enter into these agreements
knowing that an "agreement" is between two sovereign entities.
An agreement does not mean that tribes are submitting to state
control.
For example, tribal-state agreements could become
very important when a tribe lacks the resources to implement
its entire environmental program and needs state assistance
until they gain sufficient funds and expertise to manage the
program themselves.
In this manner both the states and the
®Schnidman, Frank.
"Indians and the Environment: An
Examination of Jurisdictional Issues Relative to Environmental
Management."
Columbia Journal of Environmental Law 4(Fall
1977): 1.
'^Ibid., 4.
17
tribes would
be assured against
a jurisdictional
void.®
However, agreements do not hold the weight of law and Congress
would have to authorize each agreement in order for the
agreement to take effect.
Following the Clean Air Act Amendments of 1977® Congress
began to include tribes in environmental legislation.
The
Northern Cheyenne, the Confederated Salish and Kootenai of the
Flathead reservation, and the Assiniboine and Sioux of the
Fort
peck
reservation
all
enacted
tribal
resolutions
petitioning the EPA to redesignate their reservations as
pristine environments equivalent to that of _the national
parks.
Patrick Smith and Jerry Guenther wrote an article
looking at
the Northern Cheyenne case specifically, who
redesignated their airshed prior to the congressional consent
granted through the Clean Air Amendments. The main questions
were: Did the tribe have the authority to redesignate their
air quality? What was the role of the state? From where does
this power derive? And, how have tribes (the Northern Cheyenne
specifically) utilized this aspect of their sovereignty?
Again their approach is based
on critical legal theory and
they conclude that tribes posses the inherent right to protect
®See also, Ausherman, Larry P. "Characteristics of An
Effective Tribal Environmental Regulatory Program; The
Perspective of the Regulated Community." Rocky Mountain Law
Foundation: Mineral Law Series 1989(Jan, 1989): 18.1-18.27.
®91 Stat., 685.
18
their lands from degradation.
Following the EPA policy statement of 1984 the status of
tribes in environmental policy was more clear.
Writers
however, still focused on the legal questions and not the
policy itself. Catherine Pope examined State of Washington,
Department of Ecology v. U.S.E.P.A.(1985)^°, a 9th circuit
court decision that ruled in favor of tribal over state
regulatory authority.She examined the facts of the case,
the history of federal Indian law, and briefly the recent
changes in environmental law as they pertain to Indian tribes.
Her discussion of the EPA policy, however, was limited to a
re-statement of its goals and is void of any analysis. Because
the EPA policy was initiated during the case, she concluded
that the policy was an affirmation of the court's ruling but
went no further.
In January of
1989
the Rocky
Mountain
Mineral Law
Foundation held a conference on Mineral law issues relevant to
Indian tribes.
delivered.
written
Six papers on environmental regulation were
B. Kevin Cover and Jana L. Walker, who have both
extensively
on
Indian
environmental
regulation.
State of Washington, Dept. of Ecology v. U.S.E.P.A., 752
F 2nd 1465{9th Cir 1985).
^^Pope, Catherine. "Environmental Law-Federal Indian LawRecent Developments. State of Washington. Department of
Ecology V. United States Environmental Protection Agency, 752
F.2nd 1465 (9th Cir. 1985)."
Natural Resource Journal
27(Summer 1987): 739.
19
collaborated to write "Tribal Civil Regulatory Jurisdiction to
Enforce
Environinental
Laws".^^
This
legal
analysis
concentrates on the applicability of environmental laws to
Indian country, tribal authority over non-Indians, and states
rights in Indian country. They discussed the EPA policy, but
offered no analysis of its effectiveness.
Eric D. Eberhard later submitted a copy of his paper to
the Senate Select Committee on Indian Affairs hearing on the
administration of EPA policy on reservations."'
Eberhard
focused on legislation passed after the enactment of the EPA
policy. By examining the details of each act as they pertain
to Indian tribes, he reprinted full sections of the laws and
examined how they include or exclude Indian tribes.
He did
not offer much in the way of analysis, but stated that this
was not his intent in a letter accompanying the paper.
The
paper is useful in that it coordinates all the legislation
following the EPA policy statement and serves as a good
reference.
^^Walker, Jana L. and B. Kevin Cover.
"Tribal Civil
Regulatory Jurisdiction to Enforce Environmental Laws." RockyMountain Mineral Law Foundation: Mineral Law Series 1989(Jan
1989):14.1-14.45. Later reprinted in S. Hrg. 101-412.
^^Eberhard, Eric D.
"Environmental Protection Agency
Indian Policy and Recent Developments." Mineral Law Series:
Rocky Mountain Law Foundation 1989(Jan 1989): 15-1. Later
reprinted in S. Hrg 101-412: 468-491.
"Ibid., 504.
20
Another
relevant
paper
Ausherman who proposed
was
delivered
by
Larry
P.
"five suggestions for shaping an
effective program for tribal environmental r e g u l a t i o n . H e
focused on the effects of tribal regulation on the regulated
community, particularly industry. Ausherman suggested that a
reduction in jurisdictional overlap amongst states, tribes,
and the EPA was necessary so industry knows whose rules are in
effect.
He also believed that tribes need to focus on
immediate problems and stay within their means instead of
passing comprehensive legislation, which is both too costly
and
too
complicated
for
them
to
adequately
implement.
Ausherman believed that tribes should allow industry to help
formulate policy on the reservation.
While tribes should
encourage industry to share their technical expertise and
suggestions, granting industries voting power, which Ausherman
advocates, may not be in the environment's best interest.
It
is
in
unlikely
that
industry
shares
the
same
interest
protecting the environment, an environment they do not live
in, especially when strict environmental codes have the
potential to limit profits.^®
and
uncertainty
are
foremost
Ausherman posited that delay
in
preventing
effectively regulating their environments.
^^Ausherman (1989), 18-1.
^®See infra at p. 87.
tribes
from
His suggestions
21
are
designed
to
expedite
the
process
developing
and
implementing environmental regulations on reservations.
Steven Christiansen's article "Regulatory Jurisdiction
Over
Non-Indian
Hazardous Waste in
Indian Country"" is
unique because it examined the role of non-Indian activity on
reservations.
Because much of the waste is produced by non-
Indian companies leasing tribal lands and resources, it is
important to address who is empowered to enforce environmental
laws
on
non-Indians within
the
reservation.
Like
his
colleagues, Christiansen relied on critical legal theory and
meticulously cited every case dealing with tribal sovereignty.
He reasoned that tribes have the authority to enforce their
regulations over non-members because violations represent a
direct infringement on the welfare of the tribe. This in turn
would erode tribal sovereignty.
There
has
been,
however,
effectiveness of the EPA policy.
no
inquiry
into
the
Scholars have concentrated
on the legal questions and their arguments are confined to the
theoretical situation, which, while vital to understanding the
complexities of environmental law, do not reveal the real
dilemmas facing tribes in implementing their own environmental
regulations. Therefore, a tribal specific policy analysis is
"Christiansen, Steven M. "Regulatory Jurisdiction Over
Non-Indian Hazardous Waste in Indian Country."
Iowa Law
Review 72(1987): 1093.
22
needed to determine what barriers inhibit the implementation
of the policy and any successes that highlight its potential.
23
CHAPTER II
THE DEVELOPMENT OF ENVIRONMENTAL PROTECTION POLICY ON INDIAN
LANDS
The development of federal environmental policy has been
a relatively recent endeavor.
Until 1977 Indian tribes were
not even considered in the drafting of such legislation.
Thus, a jurisdictional vacuum was created out of Congress's
negligence and tribal lands were left unprotected. As will be
seen, the EPA often interpreted these statutes in favor of
tribal authority, but the lack of statutory inclusion meant
that
funding
provided
to
states
for
training
and
for
implementation of programs was not accessible to tribes.
Environmental policy was an ad hoc process in 1910 when
the
first
Federal
Insecticide Act^®
was
passed.
Later
Congress began to formulate a more comprehensive protection
policy and passed the Federal Water Pollution Control Act of
1948.^®
This legislation addressed the growing need for
regulation of the nation's water sources by assigning to
states the power to enforce water quality standards. Congress
was adamant about state's rights and federal monies could only
be
used
to
support
research
efforts,
projects
in
new
technology, and for limited loans to help finance treatment
^®This act was repealed by 62 Stat. 1155.
^®70 Stat., 4988.
24
plants.
Congress reasoned that since the state governments
managed and regulated matters within their boundaries, they
alone were responsible for the quality of the their water.
The act was not very comprehensive in scope because the
problems of water pollution were just beginning to surface and
even the most knowledgeable scientist were working with a
limited understanding of the complexity of pollution issues.
Unfortunately, in drafting this legislation Congress neglected
to address jurisdictional issues on tribal lands. In general,
states are precluded from enforcing their laws on Indian
land^° and a jurisdictional void was subsequently created.
During the 1950s Congress began to diverge from their
original
intentions of
federal
non-involvement. Congress
authorized grants to assist states in preparing plans for
water pollution control and to help localities build treatment
facilities.
In addition. Congress tightened their control
over interstate waters. Most prominent in this decade was the
establishment
Administration,
of
the
located
Federal
in
the
Water
Pollution
Department
of
Control
Health,
^°See Worcester v. Georgia 31 U.S.(6 Pet.) 515 (1832); The
Kansas Indians 72 U.S. 737 (1866); Williams v. Lee 358 U.S.
217 (1959); Warren Trading Post v. Arizona Tax Commission 380
U.S. 685 (1965); McClanahan v. Arizona Tax Coimission 411 U.S.
164 (1973); New Mexico v. Mescalero Apache Tribe 462 U.S. 324
(1983).
25
Education, and Welfare.^^
In an eight year period Congress
had significantly increased the role of the federal government
in environmental affairs.
By the late sixties environmental degradation was a
prominent issue in the American public.
industrialization
had
finally
The side effects of
become
apparent
and
conservation/protection groups were projecting their concerns
throughout
America.
In this political climate Congress
responded by passing the National Environmental Protection Act
(NEPA) of 1969.^^
The purpose of this act was to establish
and maintain a national policy of environmental protection.
The act required that any federal action must first consider
the effects to the environment through an Environmental Impact
Statement (EIS).
The NEPA also challenged the states to
establish similar guidelines for state agencies. Through the
EIS process, Congress hoped to keep environmental degradation
at a minimum by forcing the public to make informed decisions
on land use.
^^In 1966 this agency was transferred to the Department
of the Interior (80 Stat., 1608) and in 1970 it was
transferred to the Environmental Protection Agency (84 Stat.,
113).
^^National Environmental Protection Act of 1970, P.L. 91190, 83 Stat. 852. For an in depth look at the NEPA and the
use of Environmental Impact statements for projects on Indian
lands see Dean Suagee, "The Application of the National
Environmental Protection Act to 'Development' in Indian
Country." American Indian Law Review 16(Summer 1991): 377.
26
The NEPA also created the Environmental Protection Agency
(EPA) as a federal watchdog over the environmental quality of
the nation.
This agency was charged with the responsibility
of setting national minimum standards for water and air
quality. Once again, the federal government strengthened its
control over environmental regulation.
The inclusion of tribes as regulating authorities in
environmental
legislation
was
first
seen
in
significant inclusion did not begin until 1986.
1977,
but
To achieve a
complete understanding of this process of gradual inclusion it
is best to examine the
actions
that
occurred
judicial, legislative, and agency
in
three historical
periods:
The
Jurisdictional Void, 1969-1977; EPA and Judicial Recognition
of
Tribal
Autonon^/
1977-1984;
Implementation, 1984-present.
EPA
Indian
Policy
27
The Jurisdictional Void, 1969-1977
Judicial Interpretation
The question of whether the NEPA applied to Indian lands
was decided by the U.S. Court of Appeals in Davis v. Morton
(1972)On April 17, 1970 the Pueblo of Tesuque signed a
ninety-nine year lease with Sangre de Cristo Development
Company, Inc.
The land was going to be developed into a
residential community.
The lease was approved by the B.I.A.
through the authority of Secreta2:y of the Interior Rogers C.
B. Morton. On October 22, 1971 two landowners near the leased
property
and
two
non-profit
environmental
protection
corporations filed suit to halt construction claiming the
lease was invalid because no environmental impact study was
conducted prior to approval by the B.I.A.
Prior to this hearing the District Court ruled that the
land was owned by the Pueblo and that the U.S. was acting in
advisory capacity, therefore no major federal action occurred
so
an
EIS
was
not
necessary.-^
The
Court
of
Appeals
overturned this decision by concluding that "approving leases
on federal lands constitutes major federal action and thus
^^Davis V.
Morton 469 F.2d 593 (1971).
2^335 F.Supp 1258.
28
must be approved by NEPA mandates.
Thus, any action on
Indian land is required to conform with the regulations
prescribed in NEPA.
This was the only court case that dealt
with environmental statutes and Indian lands during this
period.
The Davis ruling is significant because it established
the precedent that federal environmental laws are applicable
on Indian lands.
No one has subsequently challenged the
applicability of federal environmental statutes to Indian
lands.
This precedent created some perplexing dilemmas in
subsequent legislation which did not expressly include Indian
lands in the statutory language. While Davis established that
tribal lands were required to meet minimum federal standards,
no mechanism for implementation was authorized by Congress.
Hence, tribes were incorporated into a series of laws which
they were not allowed to enforce.
Lecrislative Developments
Following the creation of the EPA, several environmental
protection acts were passed. The Clean Water Act was amended
yet again with the passage of the Federal Water Pollution
Control Act (FWPCA) of 1972.^®
^^Davis, 597.
Stat., 816.
This substantial piece of
29
legislation established the lofty goal of ending all pollutant
discharge in the nation's water sources by 1985. To do so the
EPA was granted the power to establish new standards for
pollutant levels in water sources.
The EPA's authority was
greatly increased because they were essentially given the
power to regulate state laws. Every water source had to meet
the minimum standards established by the EPA.
States could
enact legislation in excess of these laws, but all standards
were subject to the approval of the EPA. Although tribes were
not mentioned in the legislation, because of Davis, their
water sources would also be included for the purposes of this
act. Yet Congress did not acknowledge who was to regulate and
monitor these water sources.
In 1974 Congress addressed the need for clean drinking
water with the passage of the Safe Drinking Water Act (SDWA)
of 1974.^^
This act was similar to the FWPCA in that states
were given primary regulatory responsibility, as long as their
standards
met
or
exceeded
national
levels.
The
EPA
established standards for twenty two different contaminants in
public water systems.
This act stressed the need for state
and municipal control because, in general, drinking systems
are owned and operated at the local level.
However, tribal
drinking systems were located on federal trust land and
"88 Stat., 1660.
30
therefore were not subject to state monitoring.
Tribal
drinking water was left unregulated until 1986.
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) of 1975^® amended the Federal Pesticide Control Act
of
1972.^®
FIFRA of 1975 was
designed
to
control
and
regulate the widespread use of pesticides throughout the
nation.
Like the FWPCA and SWDA, FIFRA empowered the EPA to
establish standards for pesticide use and states were given
licensing authority. Tribes were once again left out of this
legislation and there were no standards for the use of
pesticides on reservation land. This congressional negligence
was potentially devastating considering the vast amount of
leased
farmland throughout Indian country.
Tribes were
powerless to control the spread of dangerous toxins within
their borders, and farmers, while accountable to unenforced
federal standards, did not need to obtain state permits which
were the only safeguard against the wanton use of pesticides.
The Resource Conservation and Recovery Act {RCRA)''° 1976
was enacted to create guidelines for the disposal solid waste
and management of open diomps.
It was determined to apply to
2®89 Stat., 751.
^'86 Stat., 973 (1972).
Which amended 68 Stat., 511
(1954) and 61 Stat.,163 (1947). The Federal Insecticide Act
of 1910 was repealed by FIFRA of 1947.
^°90 Stat., 2795.
31
Indian tribes but did not delegate authority to Indian tribes
to develop and monitor programs for solid waste disposal. The
term "municipality" was defined to include Indian tribes,
but it failed to distinguish the role of the state government
from that of the tribal government.
Including tribes as
municipalities meant that tribal requests for funding had to
be incorporated into state proposals.
This places tribes
under state control and does not accurately reflect the
jurisdictional status of both tribal governments and states.
The FWPCA, SDWA, FIFRA, and RCRA recognized the interests
of state local municipalities by allowing them to establish
environmental codes and programs that met or exceeded the
federal requirements.
However, Congress failed to include
Indian tribes in this legislation.
This presented many
problems. First, because of Davis there was no question that
the courts would hold Indian tribes accountable to federal
standards. However, the EPA merely established the standards,
they did not enforce them.
The general policies called for
state monitoring of pollution levels and civil and criminal
jurisdiction was left to the auspices of the state.
Without
tribal provisions, tribes were powerless to enact and thus
enforce
standards.
While the federal
government
could
theoretically exercise their jurisdiction, they did not have
^^42 U.S.C. 6403.
32
the mechanisms in place to monitor and enforce EPA standards
on tribal land.
Second, because the state laws are generally void in
Indian country the states did not have any legal authority to
impose their standards on tribal water sources.
Congress
never explicitly granted that authority to the states, so
tribal lands were only accountable to federal standards. The
combination of federal largess and the preclusion of state law
left tribal lands unprotected.
Finally, in theory, tribes then could have enacted their
own standards. However, in reality this was an impossibility
because most tribal governments had neither the financial nor
the technical resources to begin to address the problems of
water pollution.
Congress created no avenue for tribes to
obtain funding as was available to the states. Throughout the
twentieth century states had received massive funding to
establish the infrastructure needed to implement an effective
environmental regulation program; tribes had received nothing.
Without legislative provisions enabling Indian tribes to
access federal funding,
tribal governments could not obtain
the technical expertise needed to understand the complexity of
their problems. In essence, the option for tribal regulation
did not exist.
33
EPA Interpretations
Following the passage of FIFRA, EPA officials recognized
the danger in this jurisdictional void and chose to interpret
Congressional intent on the role of tribal governments under
FIFRA. Congress never explicitly granted states the right to
regulate pesticide use on Indian lands so EPA Administrator
Russel E. Train stated that, "[the] Indian Governing Body may
choose to utilize the state certification program. . . or
develop its own plan for certifying private and commercial
applicators to use or supervise the use of restricted use
pesticides.Moreover, non-Indians applying for permits on
Indian lands could either be certified by a tribally approved
state certification plan or by the tribal requirements.
If
tribes chose the state plan they would have to enter into
cooperative agreements with the state.The promulgation of
these regulations by EPA officials was a strong statement in
favor of Indian sovereignty.
Although
tribes were not
included in the legislation they still retained veto power
over state intrusion into tribal affairs. This allowed tribes
to force non-Indians to comply with tribal standards.
In the same year the EPA published a set of guidelines
to be followed if states or local communities wanted to
^^40 Federal Register 171.10.
^^Ibid.
34
redesignate
announced
Governing
their
that
air
quality.
Administrator
"the regulations provide that
Body
may
propose
redesignation
Train
the Indian
to
the
Administrator...This is consistent with the independent status
of Indian lands not subject to state laws."^^
Throughout the
regulations "Indian Governing Body" is used in conjunction
with "state" in delineating the process and requirements for
redesignation. Once again the EPA exercised its interpretive
power to recognize the autonon^ of Indian tribes in regulating
their environments.
In 1976 the Northern Cheyenne petitioned the EPA to
implement a plan designed to improve their air quality and
protect it from further degradation. Air sheds are classified
into three categories: Class I is a pristine environment with
little or no allowance for pollutants; Class II is typical for
most cities and communities and allows for certain pollutants
to be emitted into the air; Class III is reserved for heavy
production areas and is the least restrictive in its control
measures.
EPA Administrator Douglas M. Costle approved the tribal
request for reclassification despite the lack of legislative
^^39 Federal Register, 42510 (December 5, 1974).
^^Ibid., 42513.
35
consent.^®
He
reasoned
that
since
Congress
had
never
explicitly empowered the states to regulate tribal lands,
tribes retained this sovereign power.
became
the
first
non-Federal,
The Northern Cheyenne
governmental
entity
to
effectively redesignate their airshed from Class II to Class
I. This meant that their air quality would become comparable
to that of a national forest. This was an unprecedented move
by the Cheyenne because no tribe had ever attempted to
establish their own environmental standards.
Moreover, this
redesignation had implications for the surrounding non-Indian
, communities.
The Northern Cheyenne reservation is located within the
one of the largest coal deposits in the world - the Fort Union
Coal Formation.
Seven major strip mining facilities are
within forty miles of the Cheyenne reservation and a 2,100
megawatt electrical power plant lies fifteen miles to the
north.Because airborne pollutants have the propensity to
drift many miles across the reservation borders, the power
plant and possibly the strip mines^® were required to monitor
^®42 Federal Register 40695 (1977).
"See Smith and Guenther. "Environmental Law: Protecting
Clean Air: The Authority of Indian Governments to Regulate
Reservation Airsheds." American Indian Law Review 9(1981):
86.
^®The Clean Air Act of 1972 were unclear on the inclusion
of strip mines as a generating source. Inclusion of these
(continued...)
36
and control the amount of pollutant discharge to conform with
tribal standards.
Two
days after the
EPA
Administrator
approved
the
Cheyenne redesignation. Congress enacted the Clean Air Act
Amendments
of
1977.^®
A
significant
aspect
of
these
amendments was the inclusion of Indian tribes as regulating
authorities. In addition, any Class I area would retain that
status.
In essence Congress merely formalized the existing
EPA policy into law, but the action is nonetheless significant
because after a century of environmental legislation. Congress
finally acknowledged the authority of Indian tribes.
This period in environmental legislation was flawed for
many reasons.
First, Congress was not fully aware of the
magnitude of the nation's environmental problems. As will be
seen, all of the environmental acts passed in this era would
have to be amended to properly deal with the problems they
intended to address. Second, Congress ignored jurisdictional
issues on tribal lands.
Considering the level of Indian
activism during the early seventies, it seems absurd to
{...continued)
facilities was determined by the amount in tons of pollution
they generated. Furthermore, following the 1977 amendments,
EPA regulations excluded strip mines that generated less than
250 tons of sulphur dioxide per year. Thus, the mines in the
Fort Union Coal Strip were excluded from regulation. See 39
Federal Register 40695.
^®91 Stat., 685.
This amended 77 Stat., 392 (1963).
37
suggest that Congress could have forgotten about tribes.
Quite possibly they naively assumed that tribes would be
protected by federal standards and that the EPA could, in
addition to their other duties, effectively manage programs
for tribal lands.
Unfortunately, questions of applicability
of environmental statutes to Indian lands was never broached
in committee hearings or throughout any of the Congressional
debates preceding enactment.
Finally, the EPA on a few occasions attempted to address
the
jurisdictional
void
by
recognizing
authority of Indian governments.
the
regulatory
This was a good example of
tribal theoretical sovereignty that was not witnessed in
reality. Tribes still lacked the technical knowledge and the
financial
supported
needed
to
address
and
implement
environmental programs. The EPA proclaimed its willingness to
work with tribal governments, but could go no further to
actualize these inclinations. In the next section we will see
that
Congress
continued
to
neglect
tribal
environmental
sovereignty, while the EPA and now the courts continued to
support tribal rights.
38
EPA and Judicial Recognition, 1977-1984
Judicial Interpretations
The Northern Cheyenne redesignation went into effect on
August 5, 1977. Immediately the EPA was sued by several local
mining companies and the Crow tribe who shared a border with
the Northern Cheyenne.
finally
handed
down
By 1981 the 9th Circuit court case
their
decision
for
Nance
v.
the
Environmental Protection AgencyThe Crow, like the strip
mining companies, were fearful that the redesignation would
limit their economic development potential.
several questions.
The court faced
First they decided that the EPA and the
Northern Cheyenne had followed all the necessary procedures in
establishing and approving the petition; ample notice was
made, public hearings were held, and the EPA and the Cheyenne
adequately considered the potential effects on the local
econorty and environment.
The court held that the process and
ultimate action was neither "arbitrary" nor "capricious".''^
Second, the court determined that strip mining interests
were not sufficient to delay or negate the redesignation
because it was unclear if strip mining was included as a
source of pollution under the Clean Air Act Amendments. Strip
mining emits fugative pollutants.
^°Nance v. Environmental
701(1981).
"'Ibid., 705.
These are generated from
Protection Agency
645
F.2d
39
when the earth is mined and entrapped fumes are released.
Only in certain voliames were fugative emissions included in
the Clean Air Act Amendments."^
Finally, the petitioners argued that the EPA violated the
CAA by approving a tribal redesignation because Congress had
not explicitly included tribes as regulating authorities. The
court
disagreed:
The conclusion can be drawn...that within the present
context of reciprocal impact of air quality standards on
land use, the states and Indian tribes occupying Federal
reservations stand on equal footing. The effect of the
recognition was to grant the Indian tribes the same
degree of autonomy to determine the quality of their air
as was granted to the states. We cannot find compelling
indications that the EPA's interpretation of the Clean
Air Act was wrong. Nor can we say that the Clean Air Act
constitutes a clear expression of Congressional intent to
subordinate the tribes to state decision making."
This ruling supported EPA interpretation of unclear
statutes.
As long as EPA interpretations are consistent with
federal policy and are not in clear violation of Congressional
intent, the EPA has the power to recognize the authority of
Indian tribes.
The court concluded with this analogy: "Just
as a tribe has the authority to prevent the entrance of nonmembers onto the reservation [citation omitted], a tribe may
exercise control, in conjunction with the EPA, over the
""Ibid.
See also 42 Federal Register 40695 (1977).
"ibid., 714.
40
entrance of pollutants onto the reservation."''''
The Northern Cheyenne
example and
the
subsequent
judicial support are significant in the development of tribal
inclusion into the regulatory arena. During the 1970s tribes
were omitted from environmental legislation. This appeared to
mean
that
tribes
were
environmental quality.
not
authorized
to
control
their
In each instance the EPA enacted
regulations which expressly recognized the inherent rights of
tribes
to
formulate
their
own
environmental
standards.
However, because tribes were not included in the legislation
they still were ineligible to receive funding through the same
channels as the states. This left the tribes in a precarious
position: they were the primary regulating authority, but had
no access to the funds provide to states to establish the
technical
expertise
or
to
implement
any
environmental
programs. The Cheyenne redesignation was the first attempt by
an Indian nation to exercise its regulating authority; this
started a ripple effect throughout Indian country.
Following the Northern Cheyenne precedent and the amended
Clean Air Act the Assiniboine and Sioux governing council of
the Fort Peck reservation on Montana petitioned the EPA for
redesignation of their air shed to Class I in 1978.
In the
same year the Confederate Salish and Kootenai also petitioned
"'Ibid.
41
for Class I status/^
Both petitions were approved by the
EPA."®
These examples of tribal self-determination ignited a
debate amongst legal scholars.
If tribes held powers to
regulate their air, did they then have similar inherent rights
to other aspects of environmental regulation? In the previous
decade it had been well established that 1) tribes were
accountable to federal standards; and that 2) states held no
jurisdiction to enforce their standards on Indian land.
However, excepting for the Clean Air Act amendments, Congress
had never explicitly stated who was to monitor environmental
quality,
who was responsible for developing and enacting
programs for regulation on tribal lands, and who was legally
entitled to enforce codes and prosecute violators.
In 1982 the federal courts handed down another decision
which supported tribal regulatory jurisdiction, over nonIndians on fee land.
In Confederated Salish and Kootenai
Tribes of the Flathead Reservation, Montana v. Namen'^'' the
court had to decide whether the Namens, non-Indians on fee
land,
could build and maintain docks and breakwaters in
violation of a protection ordinance enacted by the tribe in
"^Tribal Resolution No. 385-78-4.
Smith and Guenther, p. 90.
^'^Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana v. Namen 665 F.2d 951(1982).
42
1977."'®
support
The court relied on Montana v. U.S. (1981)''® to
their decision that
the tribal regulations were
necessary to protect the economy, welfare, and health of the
tribe.
"[Docks and breakwaters], if
unregulated, could
increase water pollution, damage the ecology of the lake,
interfere with treaty fishing rights, or otherwise harm the
lake, which is one of the most important tribal resources."^®
This case affirmed tribal regulatory authority over non-Indian
activity
that
threatens
tribal interest.
This case is
monxamental because it recognizes tribal authority over the
entire land base and not just those people with Indian
parents.
This is a vital tribal power because pollution
generated on non-Indian fee land will not confine itself to
those lands. Instead it will drift throughout the reservation
and affect the entire land base of the tribe.
In the same year another case was manifesting.
In 1982
the State of Washington petitioned the EPA to establish solid
waste management facilities under section 3006 (c) of RCRA.
Their proposal included regulations for the entire state and
the state attorney general concluded that RCRA authorized
state jurisdiction in Indian country.
The petition was
^®Shoreline Protection Ordinance 64A, 1977.
^^Montana v. United States, 450 U.S. 544 (1981).
^°Namen, 964.
43
approved by the Administrator "except as to Indian lands
The Administrator held that RCRA did not allow state intrusion
and tribal lands were thus exempt form state regulations. The
state sued
the EPA for injunctive relief claiming
that
"[s]ince tribal regulatory powers are not expressly preserved,
... RCRA has eliminated such tribal powers, and that only the
Federal
government
and
the
individual
states
have
the
authority to implement the RCRA regulatory program."^"
In 1985 the court decided Washington Department of
Ecology
V.
EPA^^ in favor of the EPA.
The court ruled when
a statute is silent on an issue the courts must defer to the
agency responsible for carrying out its provisions. "Applying
this deferential standard of review, [the court held] that the
EPA reasonably has interpreted RCRA not
jurisdiction
country."^''
over
Once
the
activities
again
the
of
courts
to
Indians
grant
state
in
Indian
supported
Indian
sovereignty and the EPA interpretation of a nebulous statute.
It became clear that 1) the EPA had the power to interpret
federal statutes; 2)the EPA supported tribal autonomy; and 3)
^^48 Federal Register 34954 (1983).
^^Washington Department of Ecology v. United States
Environmental Protection Agency 752 F.2d 1465(1985): 1467.
See Pope (1985), 739.
"Ibid.
"Ibid., 1469.
44
the courts would support these interpretations.
Legislative Developments
In 1980 Congress passed the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of 1980.^^
This act recognized 400 hazardous waste sites throughout
America that were to be cleaned up by 1985.
It was believed
that this process would be expedient and inexpensive. At the
time, hazardous waste was not considered a major threat to
America because the knowledge of the number of waste sites,
the amount of environmental damage occurring around these
sites, and the potential and real dangers to human life was
limited.
This naivete led to a piecemeal approach.
Tribal
lands were not considered in the drafting of CERCLA, and
subsequently tribes were once again left out as regulating
authorities.
EPA Interpretation
In 1980 the EPA Administrator released an Agency Indian
policy.^®
This stated that the Agency would
follow the
^^94 Stat., 2767.
^^EPA Policy for Program Implementation on Indian Lands,
December 19, 1980.
See U.S.E.P.A., Office of Federal
Activities.
Administration of Environmental Programs on
Indian Lands: EPA Indian Work Group Discussion Paper. July,
1983: 8.
45
policy directives set forth in the Self-Determination and
Education Assistance Act of 1975."
To accomplish this the
Administrator would consult with tribes before any Agency
action that directly affected tribal interests. In addition,
the Agency would support tribal initiatives to regulate their
environments.
However, the EPA could not allocate funds to
tribes without Congressional consent.
This policy statement
did little to bring about substantive advances to tribal
governments.
In fact, a paper published by the EPA's Indian Work Group
(IWG) in 1983 recommended to the Administrator that a more
definitive policy needed to be established.
The IWG noted
that "[w]hile [the 1980 policy] set forth a general principle
of
Indian
self-determination,
it
was
not
followed
with
detailed guidance and did not serve to exert significant
influence on Agency behavior."^®
This paper also suggested
three possible avenues for EPA Indian policy.
One was to
treat tribes as states and provide significant funds to
develop adequate tribal infrastructures.
While substantial
initial investment was needed, the costs would gradually
decline as tribes gained the expertise to manage their own
affairs.
"P.L. 93-538.
^^Administration of Environmental Programs, 1983: 8.
46
The second option was for the EPA to manage and monitor
environmental programs on Indian land.
The EPA would work
with
primary
tribal
governments,
responsibility.
but
assume
regulatory
The final plan called for state control.
This policy, however, required Congressional action allowing
states to assume jurisdiction.
This paper was the precursor
to the later 1984 policy.
While the court was deciding Washington the Administrator
Ruckleshaus announced the second EPA Indian Policy statement.
The EPA Indian Policy Statement of 1984^® was much more
formal than the 1980 policy.
It has also received more
attention from scholars, legislators, and the Indian tribes.
The policy was formulated in response to IWG work paper and
President Reagan's Indian Policy statement of 1983.®°
stated
that
the
Reagan
government-to-government
administration
relationship
States and the various Indian tribes.
would
between
This
support
the
a
United
This policy was to
pervade throughout the government and was to be adopted by all
agencies working with tribes.
The EPA policy was a nine point declaration of the
Agency's support for tribal self-determination.
The nine
points were:
^^EPA Indian Policy Statement of 1984, November 8, 1984.
^°Weekly Compilation of Presidential Documents 98(January
24, 1983).
1) The Agency stands ready to work directly with
Indian tribal governments on a one-to-one basis,
rather than as subdivisions of other governments.
2) The Agency will recognize tribal governments as
the primary parties for setting standards, making
environmental
policy
decisions
and
managing
programs for reservations, consistent with agency
standards and regulations.
3) The Agency will take affirmative steps to
encourage and assist tribes in assuming regulatory
and
program
management
responsibilities
for
reservation lands.
4) The Agency will take appropriate steps to remove
existing legal and procedural impediments to
working directly and effectively with tribal
governments on reservation programs.
5) The Agency, in keeping with the federal trust
responsibility, will assure that tribal concerns
and interests are considered whenever EPA's actions
and/or
decisions
may
effect
reservation
environments.
6) The Agency will encourage cooperation between
tribal, state and local governments to resolve
environmental problems of mutual concern.
7) The Agency will work with other federal agencies
which have related responsibilities on Indian
reservations to enlist their interest and support
in cooperative efforts to help tribes assume
environmental
program
responsibilities
for
reservations.
8) The Agency will strive to assure compliance with
environmental statutes and regulations on Indian
reservations.
9) The Agency will incorporate these Indian policy
goals into its planning and management activities,
including
its
budget,
operating
guidance,
legislative initiatives, management accountability
system
and
ongoing
policy
and
regulation
48
development processes.®^
The 1984 EPA policy statement was an amalgamation of
previous policy statements, regulations, and agency treatment
of tribal issues.
Prior to this encompassing doc\ament the
agency relied on a piecemeal approach to tribal environmental
concerns.
Administrator
implementation
would
not
be
Ruckleshaus
stressed
instantaneous.
that
"Effective
implementation will take careful and conscientious work by
EPA, the Tribes and many others.""
It is important to note
the role of the IWG work paper because the Administrator looks
to the IWG for policy suggestions on Indian Affairs. The IWG
is the nucleus for research on Indian concerns and works
directly with top EPA officials to determine the direction the
Agency will take.
From 1977 to 1984 Indian regulatory powers were not
altogether strengthened.
Congress made no steps to clear up
the jurisdictional ambiguity; in fact
they continued
to
confuse matters by adding tribes as "municipalities"
or
"persons".
Obviously tribes posses more sovereignty than a
municipality, which is created subsequent to state law and
under state jurisdiction. This definitional status does more
to confuse matters than benefit tribes. Conversely the courts
"EPA Indian Policy Statement of 1984, November 8, 1984.
"Ibid., 1.
49
helped to define and affrim Indian regulatory jurisdiction.
In three cases the courts denied state jurisdiction over
tribal lands, upheld tribal standards even as they pertained
to off-reservation communities, confirmed the EPA's authority
to interpret statutes, and affirmed the tribal right to
regulate
non-Indian
resource.
activity
that
threatened
a
tribal
The EPA also solidified their support for tribal
autononty. They continued to enact regulations that respected
tribal regulatory rights despite lack of legislative consent
from Congress.
statements
to
Moreover, they announced two Indian policy
guide
the
agency
in
its
decision
making
processes.
However,
the
lack
of
clear
legislative
inclusion
continued to hold tribes back. Tribes were still not eligible
for funding provided in the different environmental statutes.
They had to either go through Indian Health Service (IHS), the
Bureau of Indian Affairs (BIA)....._-Administration for Native
Americans (ANA), or through their own funds to fund training
and implement programs. Most tribes were not in the financial
position to finance an environmental campaign; their limited
resources were used for health and education. By enacting an
Indian Policy Statement, the EPA was committing itself to
improve environmental quality on reservations. Moreover, they
promised to do this by empowering tribal governments, both
legally and financially, and by providing training to tribal
50
members so that they could gain the technical knov;ledge needed
to manage effectively. The next section will examine how well
EPA has attempted to meet its own goals.
51
EPA Indian Policy Implementation, 1984-present
Following the Indian Policy Statement of 1984, EPA Deputy
Administrator Aim published the Indian Policy Implementation
Guidance
statement/^
implementation
envisioned
a
would
Aim
not
be
emphasized
realized
that
full
immediately.
gradual process by which the
Agency
He
could
effectively address the needs of the several separate Tribal
governments.
External
Aim
Affairs
matters.""
Group (IWG).
assigned the Assistant administrator for
to
"coordinator
for
Indian
policy
He also formalized the role of the Indian Work
The IWG would be staffed by representatives of
the various regional offices, the General Council, and the
Assistant Administrators. The IWG's responsibilities include:
identify the specific legal, policy, and procedural
impediments
to working directly with Tribes on
reservation problems; help develop appropriate
guidance for overcoming such impediments; recommend
opportunities for implementation of appropriate
programs or pilot projects; and perform other
services in support of Agency managers in
implementing the Indian Policy."^
Aim also recognized the need for adequate funding to
tribal programs. However, because the budget for fiscal years
Indian Policy Implementation Guidance"
November 8, 1984.
®^Ibid., 3.
"Ibid.
Memorandum of
52
1985 and 1986 had already been established, Aim ordered funds
to be taken out of resources already planned for state
programs.
In this manner he hoped to begin to address the
problems on Indian lands until Indian programs could be
written into the 1987 budget.
This section will examine four areas of implementation:
legislative amendments, funding, tribal jurisdiction, and
"treatment as state" status.
Legislative Amendments
One of the EPA's policy goals was to remove the statutory
ambiguities that had excluded tribes from participating in the
federal
funding
programs
environmental statutes.
established
in
the
various
Administrator Ruckleshaus stated
that, " A number of serious constraints and uncertainties in
the language of our statutes and regulations have limited our
ability
to
work
directly
with
Tribal
Governments
of
reservation problems. . . we will seek to remove those
impediments.""
From 1986 to 1990 several amendments were
made to existing environmental statutes. Among other changes
were provisions for tribal regulatory participation.
However, it is unlikely that tribal inclusion in these
amendments was the sole result of EPA pressure on Congress.
^^EPA Indian Policy Statement of 1984, p. 3.
53
First, tribal governments and National Indian organizations"
began
to
lobby
environmental
Congress
statutes
conferences.
for
were
Second,
Indian
being
ignoring
inclusion
amended
previous
in
when
committee
EPA
policy
statements, the 1984 EPA policy statement was erroneously
heralded as the first Agency Indian Policy. Legislators, such
as Morris K. Udall and Senator John McCain®®, were likely to
have headed this as a call to end the ambiguity of previous
statutes.
because
Finally, the EPA should be given some credit
they
had
long
supported
tribal
authority
in
environmental matters and they made their support known in
consultation with congressional committees in the formative
stages of the amending process.
Congress passed the Safe Drinking Water Act Amendments of
1986 in June of that year.®®
Section 14 defines "Indian
Tribal Organization" and requires the Administrator to conduct
a survey of drinking water conditions throughout Indian land.
Subsection (c) allows the Administrator to treat tribes as
states.
Treatment as a state (TAS) status for tribes has the
"These include the National Congress of American
Indians(NCAI), The Council of Energy Resource Tribes (CERT),
Arizona Inter-tribal Council (AITC). See S. Hrg. 101-412.
®®These two legislators introduced a majority of the
amendments that included tribes as regulators in environmental
legislation.
®®100 Stat. 642.
54
potential to help tribes, but also can work to keep tribal
participation at bay. TAS will be discussed in detail later.
In the Congressional debates preceding enactment no member
from either the House or the Senate voiced any objection to
the Indian provisions of the amendments.''®
In 1986 Congress amended CERCLA by enacting the Superfund
Amendments Reauthorization Act (SARA) of 1986."'^
By 1985
(incidentally this is the year in which all discharge of
pollutants was to have ceased according to the original FWPCA
of 1972) it was clear that Congress's perception of hazardous
waste problems had been too simplistic when CERCLA was first
enacted.
CERCLA identified 400 waste sites which were to be
cleaned by 1985. The EPA had begun cleaning less than ten per
cent of those and had actually cleaned a total of six."'^
1984 800 new sites had been reported to the EPA.
By
CERCLA was
too limited in scope to deal effectively with the problems of
hazardous waste sites.
SARA provided $10 billion in additional
funding to
address the needs of the EPA in funding clean up operations.
States were eligible to establish programs as were localities.
^°See Congressional Record, 131(May 16, 1985): S6391; and
131(June 17, 1985).
^^100 Stat., 1613.
"'^Statement of Hon. James H. Scheuer. United States Code
Congressional and Administrative News, 1986: 255.
55
In addition, new regulations for liability were enacted.
Section 208 stated that states were not responsible for clean
up on Indian lands. "[T]he Federal Government, instead of the
state, shall assure that the availability
of
acceptable
facilities to manage any hazardous substance removed from the
site."'^^
The same section
authorized tribes to recover
damages to natural resources incurred from the illegal dumping
of hazardous wastes. It also amended CERCLA to provide tribes
with the same treatment as states for funding and monitoring
purposes.
The FWPCA was similarly amended with the Water Quality
Act of 1987.''^
During the Congressional debates preceding
enactment, some concern was voiced that granting state status
to tribes might
"expand the substance of existing water
rights" and/or"expand the mechanism available to tribes to
enforce those rights both within and without their reservation
boundaries.The House was rteminded that tribes retain
significant aspects of their sovereignty.
"In exercise of
that power, Indian tribes have the right to regulate lands and
other natural resources within the reservation, including non-
^'100 Stat., 1615.
•'^lOO Stat. 7.
''^Congressional Record 133{January 8, 1987): H184.
56
Indian owned fee lands."''®
If problems should arise between
states and tribes who share water with differing standards,
then
the
two
parties
must
enter
into
negotiations
or
litigation as the only means to a solution.
Funding
On June 23, 1989 the Senate Select Committee on Indian
Affairs conducted a hearing focusing on the implementation of
the EPA Indian Policy.The committee heard testimony from
tribal officials, tribal lawyers, EPA personal, IHS personal,
and representatives from NCAI and CERT. These witnesses cited
confusing and repetitious procedures to limited funding for
environmental
programs
as
the
main
obstacle
hindering
effective implementation.
During the Senate hearing Senator McCain questioned EPA
Deputy
Administrator F. Henry Habicht
III on
the EPA's
financial commitment to Indian matters. McCain noted "that in
the past 15 years EPA has spent approximately $42 billion
carrying out its responsibilities in the United States.
Of
that amount, $25 million was spent in Indian country, which is
about one twelfth of 1 per cent.
I don't think anyone can
•'^Ibid., H184.
'''^Administration of Indian Programs by the Environmental
Protection Agency. S. Hrg. 101-412.
57
suggest that that is a fair distribution."''® Earlier Habicht
testified
that
in FY
1988
the
EPA
spent
$6.9
million
addressing Indian environmental problems out of a total budget
of $5.5 billion, which is approximately one tenth of one per
cent
Considering that Indian lands comprise two per cent of
the total land base on the United States, it seems absurd that
tribes should be allocated less than one percent of the EPA's
budget.
State governments have already received substantial
funding throughout this century to establish a foundation on
which to operate their programs, yet they continued to draw a
disproportionate share of EPA funds. Furthermore, states have
a large tax base off of which they can sustain existing
environmental programs.
States still need federal aid, but
tribal governments deserve the same resources that were
invested
into
the
states
to
build
their
environmental
regulatory infrastructure.
The EPA allocates its budget according to a "risk based
analysis".®®
This approach attempts "to protect the greatest
''®Ibid., 6.
•'^Ibid., 7.
®°Statement of Richard E. Sanderson, Director, Office of
Federal Activities, EPA., S.Hrg. 101-412.
58
niimber of people with the available resources."®^
the
EPA
prioritizes
environmental
problems
This means
according
to
population density - small land masses with large populations
receive more attention.
Generally, problems that affect a
large number of people obtain a higher priority.
Indian
country comprises a large land mass with a low population
density. The risk based analysis approach places tribes at a
disadvantage because they are continually low on the EPA
priority list, regardless of the length of time a problem has
persisted and have little mobility in EPA priority.
The breakdown of the EPA budget does not offer much hope
to tribes. From 1985 to 1990 funding increased in most areas,
but so did environmental problems that warrant attention. As
was mentioned earlier, funding from 1985 to 1985 had to come
from the limited budgets already allocated to the states. In
1988
the
EPA
spent
$6.9
million
on
Indian
lands.
Approximately $3.76 million was granted directly to tribal
governments to construct facilities and to manage existing
programs.®^
small
As will be seen this is the amount Isleta, one
tribe,
is
seeking
to
implement
one
environmental
®^Statement of F. Henry Habicht III, Deputy Administrator
U.S.E.P.A. S.Hrg. 101-412: 40.
®2lbid., 68-
59
program.
The 1989 expenditures rose to $7.3 million®^ and in
1990 the EPA expended approximately $22 million.®''
The 1990
figure includes a one time grant of $10.7 million to be used
exclusively for wastewater treatment facilities.
Thus, the
EPA has increased its spending, but it is unknown if the
spending increases are consistent with increases in the number
of environmental problems. Moreover, the percentage of funds
appropriated to tribes remains less than one per cent of the
total EPA budget.
An
increase
in
funding
is
definitely
needed,
but
efficient access to those funds must also be available.
Currently tribes must run through a complicated, and largely
unnecessary, obstacle course in order to receive the money
Congress appropriates. In 1991 the Senate Select Committee on
Indian
Affairs
held
a
hearing
on
S.
Environmental Consolidated Grant Program.
668,
The
Indian
The bill would
remove restrictions on use of funds and allow tribes to apply
for a single grant which could be used for a variety of
environmental
programs.
Previously
tribes
had
to
file
separately for each type of program or media (i.e. hazardous
waste removal. Air quality program, water quality program,
etc.). This system is ripe for unnecessary delays because the
®^Statement of Raymond B. Ludwiszewski, Acting Assistant
Administrator, EPA. S. Hrg. 102-143: 31.
®^Ibid.
60
tribes have to repeatedly complete the same forms and wait for
approval, while problems areas degrade further.
This act
would work to remove some of the stagnation that has become
synonymous with bureaucracies.
Congress has responded to this need for better funding
mechanisms by enacting the Indian Environmental Regulatory
Enhancement Act of 1990.®^
This act amended the Native
American Programs Act of 19742®® in several ways.
First, it
specifies that a certain proportion of ANA funds must be used
to
train
and
educate
tribal
employees
in
environmental
matters, to help tribes develop environmental legislation, and
to aid in the enforcement and monitoring of tribal codes.
Second, the act requires that tribes match twenty per cent of
ANA funding, which can be paid through cash or through the
provision of property or services. The tribal share can come
from any source including another federal funding source.
Finally, and most prominent, the act adds $8 million to the
existing ANA budget for each fiscal year 1991 through 1996.
It is interesting to note that the ANA opposed this act.
The Department of Health and Human Services Secretary, Louis
®^104 Stat. 883.
®®Title VIII of The Headstart, Economic Opportunity, and
Community Partnership Act of 1974. 88 Stat. 2291. This Act
created the Administration for Native Americans to allocate
funding to improve the social and economin welfare of tribal
communities.
W. Sullivan, issued a report to Representative Udall opposing
the bill because "the activities specified in S. 2 075 can be
carried out under the [original ANA Act of 1974] as currently
drafted."®'
That
ANA would
turn down an additional
million per year for five years is peculiar.
$8
The only
justification given for their opposition was that ANA already
funded tribes for environmental matters.®®
Commissioner for
ANA, Tim Wapato, noted how ANA had spent $1 million over five
years to help twenty tribes. That amount is relatively little
compared to the exorbitant costs of hiring and training
personal, conducting field studies, and erecting facilities to
monitor and prevent environmental degradation. Apparently he,
and
the
entire administration,
felt
this
was
adequate.
Despite ANA'S stance, the act was pushed through Congress and
Indian tribes now have and additional forty million dollars to
work with.
Adequate funding is the cornerstone for any governmental
activity - tribal governments are certainly no exception.
Tribal environmental departments are notoriously understaffed,
often
one
person
is
responsible
to
coordinate
several
unrelated and severely complicated environmental programs.
®''Letter from Louis W. Sullivan, M.D. to Morris K. Udall,
July 31, 1990.
®®See Statement of Tim Wapato S. Hrg. 101-774: 74-77, 161167.
62
Without proper staffing, tribal environmental coordinators are
also responsible for filling out the endless paper trail just
to get their programs considered by the EPA.
Consolidated
grants, proportionate distribution of the EPA budget, and
reduction in the bureaucratic obstacle course would increase
the efficiency of the tribal/EPA relationship.
In times of
general budget cuts suggestions for investment are not well
received, but tribes deserve the same commitment that was
invested in the state governments in the formative years of
environmental regulation.
Jurisdiction
Another area that warrants investigation is the role of
tribes in enforcing their environmental codes.
Regulations
are
regulators.
worthless
if
unenforceable
by
the
Unfortunately this is the case on reservations across the
country. During the 1970s the Supreme Court whittled away at
tribal criminal jurisdiction over non-members.®'
V.
Suquamish (1978)®°
In Oliphant
the Supreme Court decided that tribal
criminal jurisdiction was "inconsistent" with tribal trust
status.
Hence, the same court that once ruled only Congress
®®See David H. Getches, et. al. Cases and Materials on
Federal Indian Law Third Edition. West Publishing Company:
St. Paul, 1993: 551.
^°Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
63
had the authority to abrogate tribal rights, took away an
inherent tribal right.
In Duro v. Reina (1990)'^
the
Supreme Court, without explicit congressional support, decided
that Indian tribes could no longer prosecute non-member
Indians for crimes committed within the reservation borders.
This was another major blow to tribal sovereignty.
The Court has also worked to deprive tribes of their
civil jurisdiction.
In Montana v. U.S. (1981)-- the Court
upheld tribal civil jurisdiction only when non-Indian actions
threatened the health, welfare, or political or economic
security of the tribe. It has been determined, however, that
because
environmental
destruction
affects
all
of
the
aforementioned criteria, non-Indians are accountable to tribal
environmental
regulation.®^ In 1987
the Federal
District
Court in South Dakota upheld this principle in Blue Legs v.
U.S.E.P.A.^'^
In Blue Legs suit was brought against the EPA, the BIA,
the IHS, and the Oglala Sioux tribe for operating
and
utilizing an open dump in violation of RCRA provisions.
First, the court ruled that the Oglala Sioux are accountable
^^Duro
V .
Reina 495 U>S> 676 (1990).
^^Montana v. United States, 450 U.S. 544 (1981).
Supra at note 44.
^^Blue Legs v. United States Environmental Protection
Agency, 668 F. Supp. 1329 (D.S.D. 1987).
64
to RCRA standards.
Moreover, the court held that the tribe
has the right and power to "regulate, operate, and maintain
dumps on the reservation. This right stems from the inherent
sovereignty which Indian tribes possess."®^ Second, the court
denied the Oglala request that the case be heard in tribal
court because RCRA preempted that aspect of their sovereignty.
Finally, the BIA and the IHS were found guilty of violating
the RCRA provisions that prohibits federal agencies from
utilizing open dumps.®®
Somewhat paradoxically, this case
determined that because tribes were sovereign, they were
responsible for carrying out the provisions of an act that
preempted their sovereignty. Blue Legs did, however, reaffirm
the principle that tribal governments held civil jurisdiction
over their territories.
Some concern has been raised that the 1989 Supreme Court
decision in Brendale v. Confederated Tribes and Bands of the
Yakima i\7ation" will be applied to environmental regulation
\,
and limit tribal authority to Indian land.
In Brendale the
court determined that tribal zoning laws only apply to lands
held by the tribe. Non-Indian owned fee land was placed under
state jurisdiction even though it was within the borders of
®^Ibid., 1337.
®®See RCRA sections 1632 and 1634.
^''Brendale v. Confederated Tribes and Bands of the Yakima
Nation 492 U.S. 408 (1989).
65
the reservation.
The Court held that tribal interests were
not significantly threatened as required by Montana to preempt
state jurisdiction.®®
The EPA has continued to support tribal jurisdiction over
all land within the reservation because environmental matters
affect the health and welfare of the Indian tribes and
therefore Montana was not diminished by Brendale. The Agency
operates under the rule that tribal environmental codes that
protect the health and welfare of the community are applicable
to all land regardless of who holds the title.
In 1991 the
EPA announcd that
The Agency believes that the activities regulated
under the various environmental statutes generally
have serious and subtantial [sic] impacts on human
health and welfare.
As a result, the Agency
believes that tribes will usually be able to meet
the Agency's operating rule, and that use of such
rule by the Agency should not create an improper
burden of proof
on tribes or create the
administratively
undesirable
result
of
checkerboarding reservations.'®
The situation in Brendale regarded land zoning which is
far different than environmental statutes. Pollution does not
remain in one place.
land
within
reservation
the
and
Pollution generated on non-Indian fee
reservation
effect
the
will
entire
®®Ibid., 432.
®®56 Federal Register 64878.
drift
throughout
community.
The
the
EPA
66
recognizes this and "does not read the holding in Brendale as
preventing EPA from recognizing Tribes as States for purposes
of
regulating
water
quality
on
fee
lands
within
the
reservation.
But one must question the effectiveness of a government
that is circumscribed from enforcing their civil powers.
Currently, non-Indians and non-member Indians who violate
tribal environmental laws are prosecuted through the federal
courts.
that
Violations of tribal standards are crimes against
particular
community,
not
the
Federal
government.
Moreover, in both Oliphant and Duro the Supreme Court created
a legal fiction.
There is no legal or constitutional basis
for the judicial abrogation of tribal criminal jurisdiction.
Only Congress can dissolve a tribal right, and even that is
questionable under the Constitution and the tenants of common
sense.
Treatment As A State Status
Beginning with the Clean Water Act Amendments of 1986
Congress began,to allow the EPA to treat tribes as states for
the purpose of approving tribal regulatory schemes and for the
purposes of directing funds to support implementation. While
this
status
firmly
^°°Ibid., 64877.
supports
the
idea
of
tribal
self-
67
determination, it has some drawbacks that need to be addressed
and overcome.
Treatment as a state status basically opens the door for
tribes to assiime primacy over regulation of environmental
matters.
states;
However, it must be remembered that tribes are not
they
have neither the
resources,
financial
and
technical, nor the staff to deal with the EPA as states do.
First, the process of obtaining state status is lengthy and
for the most part unnecessary.
Tribes must apply for TAS
under each different provision of a given act.
According to
Gene Joseph, Chairman of the Coville Environmental Quality
Commission, the application process to assume TAS under the
CWA consumed over 150 hours of staff and attorney time to
qualify for section 106.^°^
Furthermore, the EPA required
the Coville Tribes to also submit the same applications to
qualify for section 401 and yet again for section 406.
This
is redundant, unnecessary, and is an excellent example of
bureaucratic busywork.
Joseph and the Tribes "strongly
objected to EPA's decision to require separate TAS's for each
program . . . EPA ignored our comments and Indian tribes are
now saddled with an overly burdensome and costly requirement
that has little, if any, practical value.
Joseph offered
^°^See Statement of Gene Joseph, S.Hrg.102-143: 170.
^°2lbid.
68
a more efficient and practical alternative. He suggests that
Congress should direct EPA to adopt a system
whereby an Indian tribe could qualify for TAS under
the relevant statute once by making a showing of
general tribal jurisdiction and authority. Then,
for each program delegation under a particular
section of the Act, the tribe could provide
specific supplemental information in order to
qualify for primacy.
The EPA responded
to these criticisms
in
1991 and
continues to utilize the same application procedures for TAS.
EPA officials feel that the problems noted by tribal leaders
are a result of the new relationship and not the process
itself.
EPA officials expect, "that as [the EPA and Tribal
governments]
gain
more
experience,
minimal."^®''
They
also argued
such
that
delays
will
be
the process is not
repetitive stating that, "If a tribe has already submited an
application for Treatment as a State for another program, very
little
if
any
consideration
new
in
information
the
standards
beyond
the
program
request
needs
to
for
be
provided.
TAS status can be beneficial to tribal governments if
they are prepared for the full implications of such status.
Implementation is costly and requires a knowledgeable staff to
'"Ibid.
'°^USEPA., Amendments to the Water Quality Standards
Regulations that Pertain to Standards on Indian Lands. 56
Federal Register 64883.
'°^Ibid.
69
monitor a program. This status should not be pursued lightly.
Some tribes complain of unnecessary delays yet others like
Isleta experience no such problems.
It is possible that the
different regions require more or less of the tribes within
their region.
The EPA needs to clarify this policy and
coordinate it amongst the different regions.
The inclusion of tribes into the environmental regulatory
arena is an ongoing process.
The major statutes have been
amended to include tribes, but reality presents a different
picture.
Congress still
priorities
in
conjunction
needs
with
to analyze
the
needs
its
funding
of
tribal
governments. The EPA also needs to reassess their approach to
tribal governments and realize that tribes are not states.
In general tribal infrastructures are not as developed and
therefore not equipped to immediately enact and implement
environmental codes.
By recognizing this, EPA can glean a
better understanding of tribal needs and more effectively
allocate their limited resources.
Opportunities now exist
for tribes to obtain primacy through TAS status and the EPA
has proven that they will recognize and support
petitions for such status.
tribal
However, Treatment as a State
means that tribes have the same regulatory jurisdiction as
states, not that tribes should necessarily be dealt with on
the same level that the EPA currently deals with state
governments.
70
The next Chapter will specifically focus on the issues
that the Pueblo of Isleta has faced regarding environmental
protection.
It will be demonstrated that Isleta faces many,
if not all, of the same obstacles already mentioned.
The
Isleta experience is common to many tribes and possibly by
examining their history and their approaches to these issues,
we can obtain a general framework for approaching tribal
regulatory issues.
71
CHAPTER III
THE ISLETA APPROACH
Nestled along the Rio Grande lies the Pueblo of Isleta,
one of the longest settled communities in the North American
continent.
After centuries of relative isolation, Isleta is
geographically
encompassed
by
the state
of
New
Mexico.
Throughout the years of interaction with the Spanish, the
Mexican, and then the American governments, Isleta has managed
to reserve 211,000 acres for their exclusive use.
With this
reservation of land they also reserved many aspects of their
inherent sovereignty. In 1992 the community decided to assert
one aspect of this reserved autonomy by enacting the Pueblo of
Isleta Water Quality Standards.
This act declared that
the Rio Grande must meet the specifications of the tribe by
the time it reaches Isleta. The EPA supported this act and to
ensure compliance now requires all upstream users consult with
the Isleta government before discharging any foreign substance
into the river.
This includes the State of New Mexico,
private companies, the city of Sante Fe, and the city of
Albuquerque.
This action was the first time a tribe sought out and
received Treatment as a State status under the Clean Water Act
^°®Pueblo of Isleta Water Quality Standards, December 24,
1992.
72
of 1987.
However, the implementation of these standards has
been impeded by a number of factors.
First, the city of
Albuquerque in January of 1992 sued the EPA in an attempt to
have the tribes standards invalidated.
At the time of this
writing the case is still under consideration by the District
Court in New Mexico.
Second, the tribe is not financially
prepared to take on the burden of monitoring the river so they
can effectively enforce their standards.
Finally, lack of
financial resources inevitably limits the tribe's ability to
attain the technical expertise needed to implement such a
plan.
However, Isleta is managing to forge ahead with their
goals and has formulated a plan to remove the aforementioned
barriers to implementation.
This
chapter
will
examine
how
the
current
Isleta
administration has asserted primacy over the cleanup of a
hazardous waste site which was identified over five years ago.
It will also analyze Isleta's experience with attaining and
implementing
their
Treatment
as
a
State status.
This
examination will reveal the manner in which they have chosen
to confront the obstacles in their path and the successes that
have already manifested.
The Isleta experience represents a
model by which other small tribal communities can approach
their environmental problems and actualize their regulatory
authority over their land.
73
The Isleta Community
Teih-nen, the people, discovered the existence of Western
civilization when they found a group of Spanish explorers led
by
Coronado
wandering
through their
territory
in
1540.
Coronado and his men were led to the Pueblo and given food and
shelter.
This discovery of another world with values and
perceptions quite different than those of Teih-nen, was the
beginning of a 533 year dialogue between the nation of Isleta
and the western world. Yet, the discovery of Coronado did not
significantly alter the way of life for the Pueblo.
They
continued to follow the spiritual cycle that ensured bountiful
harvests and thus the existence of the people.
However, by the early 1600s the Spanish became more
aggressive
in
Christianity.
was
their
pursuit
of
gold
and
to
In 1613 the Mission of San Antonio de Isleta
established within the Pueblo and the
Christian
converts
missionaries
began
in
earnest.
onslaught
of
The Isletans
received the missionaries peacefully and incorporated some of
their ideas and words into the traditional life. They had no
interest in fighting because the presence of the Spaniards
presented little threat to the community's autonomy.
As will
be seen, Isleta has history of opening its doors to outsiders
without question, the Spaniards were no exception.
In 1675 Isleta received migrations of Pueblos east of the
Marzano Mountains who were fleeing the raids of various Plains
74
tribes.^®''
They also avoided participation in the Pueblo
Revolt of 1680 and even took in desperate Spaniards who
escaped the attacks.
ignored.
around
A year later this generosity was
In 1681 General Otermin burned Isleta and took
400
prisoners
to
El
protection from Pueblo attack.
Paso,
claiming
they
needed
The rest of the population
fled to Hopi and did not return until 1709.^°®
The Spanish later recognized the autonomy of Isleta by
issuing a decree stating that Isleta was independent and
granted the governor a silver-headed cane with an inscription
of a cross upon the head. To the Spanish the cane represented
a grant of approval from the crown invested with the authority
of God itself. To Tieh-nen, the cane symbolized nothing more
than Spanish recognition of their sovereignty. With the cane
came a land grant title which stated that the Pueblos were the
sole owners of their land.^°®
The grant must have seemed
peculiar, if not humorous, to the Isletans who had owned and
governed their land for centuries.
Following the Mexican revolution, the Pueblos were once
again given permission to live and own the very land they had
^"'^Confederation
of
American
Indians.
Reservations: A State and Federal Handbook. 166-7.
Indian
^°®Ibid.
^°®See Joe S. Sando. The Pueblo Indians.
The Indian Historian Press, 1976: 54-66.
San Fransisco:
75
owned and occupied for hundreds of years.
The Mexican
government issued another land grant to the various Pueblo
governments.
However,
like
the
Spanish
grant
irrelevant to the pueblo vision of autonorr^.
it
was
When the
territory surrounding the Pueblos was ceded to the U.S. in
1848^^° the U.S. government took the liberty of including the
Pueblos within their domain.
The U.S. offered all residents
of nelwy acquired territory the choice of Mexican or U.S.
citizenship and gave them one year to declare.
The Pueblos
never voiced an opinion and therfore were considered U.S.
citizens.
In 1858 Congress confirmed the Pueblo's land
titles.
Then
acknowledged
Pueblo
in
1863
ownership
President
by
Lincoln
presenting
each
further
Pueblo
Governor with a silver headed cane as symbol that the U.S.,
like the Spanish, respected Pueblo sovereignty.^^"
The relationship between the United States and the
Pueblos
is
unique
and
deserves
some
mention.
Federal
officials believed the Pueblos were superior to other Indian
tribes because they lived in fixed locations and relied on
farming instead of hunting. They also credited the Pueblos as
ii°The U.S. claimed exclusive jurisdiction over all
territory ceded through the Treaty of Guadalupe Hidalgo in
1848. 9 Stat. 922. The treaty was signed February 2, 1848,
ratified on May 30, 1848, and proclaimed July 4, 1848.
^^^11 Stat., 374.
''^Sando, 1976: 70-73.
76
being moral, honest, sober, and industrious. Because of these
"civilized" attributes, federal policy towards the Pueblos was
less restrictive than the general Indian policy, which viewed
tribes as an inferior, dependent people.
Pueblo lands were, and still are, owned if fee by the
individual Pueblo governments. These lands were unencumbered
by federal laws and the Pueblos themselves could dispose of
their lands as they wished without federal approval.
In
addition, federal prohibition laws were not applicable on
Pueblo territory because federal officials believed the Pueblo
people were developed enough socially to control the use of
alcohol by their people.
In 1876 the Supreme Court ruled in U.S. v Joseph?-'^'^ that
because the Pubelo Indians were "peaceable, industrious,
intelligent, honest, and virtuous people" they were not like
other Indians and therefore not Indians as defined by the
Nonintercourse Act of 1834."^
Thus, the federal government
could not prevent non-Indians from taking Pueblo lands. This
"^See United States v. Lucero 1 N.M. 422 (1969).
V.
Joseph 94 U.S. 614 (1876).
^^^4 Stat., 729. This was the last in a series of Trade
and Intercourse Acts.
The purpose of the Acts were to
regulate non-Indian activity so that treaty rights were not
discriminately violated. It was the intent of Congress to
control and conduct an orderly westward expansion. The Trade
and Intercourse Act of 1834 established exclusive federal
control over Indian-White relations and required Congressional
consent to the taking of Indian lands.
77
case affirmed the view that the Pueblos were not under the
jurisdiction of the United States. The Pueblos retained this
sovereign status until 1913 when they were included in the
general framework of federal Indian law by the Supreme Court.
Absent any treaty or congressional mandate relinquishing
Pueblo authority, the Supreme Court reversed their previous
opinions on the Pueblo status when they handed down U.S. v.
Sandoval in 1913."®
In this case the Court overturned a
federal court decision which held general laws prohibiting the
introduction of liquor onto Pueblo lands inapplicable because
of the unique status of Pueblo lands.
Justice Vandevanter
relied on reports form the Indian Service which stated that
the Pueblos were ethnically Indians and practiced "heathen"
customs to decide that the Pueblos needed protection from the
vices of unscrupulous white traders.
The Court also implied
that the Pueblo people may not be full U.S. citizens by
leaving the question open.^^"^
Despite years of independence
from federal laws the Pueblos were uniformly brought into the
fabric of general federal Indian law.^^®
V .
Sandoval 231 U.S. 28 (1913).
"^In U.S. V . Nice 241 U.S. 591 (1916) the Court
determined that U.S. citizenship was not inconsistent with the
tribal status and did not diminish the federal responsibility
to protect the interests of individual tribal members.
"®See Felix S. Cohen, Handbook of Federal Indian Law
Albuquerque: University of New Mexico Press, 1942, for a
(continued...)
78
Under the Indian Reorganization Act of 1934^^® tribes
could reorganize their governments under a constitutional
system.
The Pueblo of Isleta reorganized and drafted a
constitution in 1947 which now governs the community.
The
people elect a Governor, the council president, and two
runners up.
The governor then appoints the first and second
lieutenant governors, the sheriff, the secretary, and the
treasurer.
The other three elected officials appoint twelve
council members.
(...continued)
detailed account of the relationship between the Pueblos and
the United States government.
^^®48 Stat., 984.
^^°See Vine Deloria Jr. and Clifford Lytle, The Nations
Within: The Past and Future of American Indian Sovereignty.
New York: Panthenon Books, 1984 for an in depth analysis of
the IRA and its implications.
79
The Wall-Colmonov Case
The Pueblo of Isleta negotiated a twenty year lease with
Wall Colmonoy, a steel plating plant, in 1972.
During the
late 1980s residents of Isleta began to report green dust
clouds during windstorms around the exterior boundaries of the
plant.
The green dust was analyzed and determined to be
chromium oxide, a chemical known to cause bronchitis and lung
cancer.The area surrounding the plant contains several
residences, a teen center, and a few businesses.
Once
reported to the tribal council, the EPA was called in to
investigate.
The EPA conducted preliminary tests in July of 1992 and
discovered hexavalent chromium and unoxidized chromium.
The
levels of the former exceeded 172 parts per million (ppm) and
the later exceeded 14,000 ppm; the levels considered to be
safe
for humans is 35 ppm.^^^
problem.
Thus, Isleta has a
big
Though the site was identified as highly toxic in
1992 by August of 1993 the dust was still being removed.
According to Rita Kirk, Environmental Specialist for the
Pueblo of Isleta, in Februai^ of 1993 the Tribal Council
ordered the company to clean up the site. Wall Colmonoy hired
^^^See Steve Fox. "Taking Us Down the River:
Pueblo Challenges Upstream Polluters."
The
17(Winter 1992): 146.
^22ibid., 151.
An Indian
Workbook.
80
environmental consultants to analyze the site and develop a
strategy for removal.
By April they presented a plan to the
tribe which projected a ten day removal period. However, the
extent of the site was not fully recognized.
Throughout the
past seven months massive quantities of chromium dust have
been discovered and the project is still i n c o m p l e t e . T h e
EPA has acted only in an advisory capacity and the company
must report directly to the tribe.
Originally the Isleta Tribal Council was going to apply
for
a
Superfund
grant
to
fund
the
removal
project.^'^
However, the Tribe realized that this would take more time,
money, and personel than they could afford.
Moreover, the
site was a result of the negligence of the company.
So they
decided to forgo the applicatioon process and order the
company to clean the site.
tribe
has
maintained
Unfortunately,
the
extent
Wall-Colmonoy cooperated and the
its
of
jurisdictional
the site was
authority.
larger
than
previously thought so more time is needed before the lands is
safe again.
Needless to say, Isleta did not renegotiate
another lease with Wall-Colmonoy.
i23personal Correspondence with Rita Kirk: October 12,
1993.
^-'^Ibid.: August 27, 1993.
'"Fox (1992), 149.
81
The Pueblo of Isleta Water Quality Standards
In 1987 Congress amended the Clean Water Act and included
a provision that allowed the EPA to treat tribes as states for
the purposes of establishing and enforcing water qualitystandards.
In 1991 the EPA informed Isleta of their rights
under this provision and declared that the Agency would
support a tribal initiative to gain Treatment as a State
status.
The Pueblo issued a proposal on January 24, 1992.^-®
The Pueblo of Isleta Water Quality Standards stated four
defining purposes to the proposed standards.
designated the uses for the Rio Grande waters.
First they
The uses
include ceremonial ingestion and immersion, agricultural water
supply, fish propagation throughout the reservation,
and
industrial water supply.Second, the standards were needed
"to sustain the designated uses."^^®
Third, the standards
will "assure that degradation of existing water quality does
not occur.
Finally, the Pueblo hoped the water standards
would work to promote the social and economic welfare of the
community
The proposal was forwarded to the EPA, Region
^^®Pueblo of Isleta Water Quality Standards: January 24,
1992.
^^'^Ibid., Section I, subsection (C).
^^®Ibid. Section I, (A), number 2.
^^®Ibid. at number 3.
"°Ibid., at number 4.
82
Six, and the process began.
The EPA conducted their investigation and held hearings
to determine the possible economic and environmental side
effects of the proposed standards.
The EPA found Isleta's
proposal reasonable and in October of 1992, Isleta received
TAS status from the EPA. Dave Barry, spokesman for the Region
Six of EPA in Dallas, addressing the implications of this
status stated that, "if a state, or in this case a Pueblo,
would wish to propose more strict standards, the Agency does
not have the any authority to overrule and lower these
standards.
On December 24, 1992 Myron Knudson, Director
of the EPA's Water Management Division in Dallas announced
that the Pueblo of Isleta Water Quality Standards "were fully
approved in accordance with the provisions of the Clean Water
Act."^^^
Isleta
was
fortunate
in
that
the
process
of
recognition by the EPA was relatively quick and without
incident.
The Pueblo standards established a general plan of
implementation. The Tribal Council authorized the creation of
a new position, the Tribal Water Quality Control Officer, who
is responsible for monitoring water quality, for determining
^^^EPA.
1685.
Environmental Reporter.
23(October 30, 1992):
^^^EPA.
Environmental Reporter.
23(January 8, 1993):
2266.
83
the environmental impact of effluent on receiving waters, for
advising upstream dischargers of Pueblo
law
and water
requirements, for coordinating Tribal activities with those of
other
interested
agencies,
for
developing
enforcement
programs, and for coordinating funding with technical training
for personnel
This position is severely complicated and
requires a staff through which the Officer can direct and
coordinate the responsibilities of the office. Other than the
creation of this office, no specific guidelines or plans were
promulgated by the Tribal Council.
This position has yet to
be filled.
The
first
problems
of
implementation
manifested
in
January of 1993 when a new administration lead by Governor
Lucero took over at
Isleta.
Upon leaving
office,
the
Williamson administration took with them all records and
documents obtained during their tenure in office. The Lucero
Administration was forced to start with little, if any,
documentation. Second Lt. Governor Olguin stated that he knew
nothing of what transpired prior to January 1, 1993 .^"''
This
is an inefficient way to run a government at any level.
An
incoming administration must have the ability to research the
events that preceded their inauguration if they are expected
^"Water Quality Standards, Section II (B).
^^^Personal Correspondence with 2nd Lt. Governor Olguin:
October 5, 1993.
84
to govern effectively. According to Environmental Specialist
Kirk, the Lucero Administration is presently attempting to
obtain these documents from either the tribal lawyer or from
the Williamson administration.
The
Lucero
Administration
met
with
the
Mayor
of
Albuquerque in January of 1993 to determine the city's stance
on compliance with the Pueblo Standards.^"®
According to
Olguin the Mayor's office indicated that they had no problems
with the standards and were willing to work with the Pueblo in
enforcing these standards. However, on January 25 the Public
Works Department of the City of Albuquerque filed suit against
Region six of the EPA in an attempt to invalidate the EPA's
approval of the Pueblo's Standards.^"
Olguin stated, "We
thought everything was going smoothly until we read the papers
and
found out
that
EPA was
being sued
because of
our
standards.
Isleta has since met with the City Council twice, once in
April and once in late June, in an attempt to open up a
^^^Personal Correspondence with Rita Kirk: August 27,
1993.
''''Albuquerque v. EPA District Court of New Mexico, CV
93-82, 1/25/93.
See also EPA. Environmental Reporter
23{Feburary 12, 1993): 2691.
^^®Personal Correspondence with 2nd Lt. Governor Olguin,
October 7, 1993.
85
dialogue with the Albuquerque. The administration hoped that
through open discussion they could resolve any differences and
work together to achieve compliance with the standards.
However, according to Lt. Governor Olguin Albuquerque has "two
voices."
The City Council is in favor of working with the
Tribal Council while the Mayor's Office and the Public Works
Department
is
entirely.
Furthermore, the New Mexico State Environmental
against
compliance
with
tribal
standards
Office appears to also support the tribal standards.
Region six of the EPA is fully supporting Isleta and is
fighting the lawsuit.
Moreover, on July 6, 1993 Region six
issued a public notice of their intent to issue a discharge
permit to the city of
Albuquerque.^^®
This permit
sets
levels of allowable discharge in accordance with the Tribal
Standards.
In effect, the EPA is requiring the City of
Albuquerque to comply with Isleta law. Apparently the Pueblo
of
Isleta was never consulted
in the drafting
of
this
permit.A month later Isleta had still not seen the
proposed permit, yet they were expected to comment on it at a
^^®Ibid.
^^°National Pollutant Discharge Elimination System (NPDES)
permit No. NM0022250; July 6, 1993 Fact Sheet.
^^^The fact sheet on NPDES MM0022250 stated that the EPA
"has made a tentative determination to issue a permit, after
consultation with the State of New Mexico and the Pueblo of
Isleta. . ." Ibid.
86
public hearing set for August 25.
"We hope to receive a copy
of the application and an opportunity to determine whether the
application will violate water quality requirements of Isleta
and,
if
so,
to
objection.
object
and
request
a
hearing
on
such
The permit was in compliance with Tribal
standards so no major problems resulted, but this example
demonstrates how the EPA may sometimes act for a tribe without
actually consulting the tribe.
The main concern of Teih-nen is the primary contact
ceremonial use.
During the ceremonial cycle some rituals
require tribal members to drink and immerse themselves in the
Rio Grande.
Under current conditions this is extremely
hazardous to human health. According to Lt. Governor Olguin,
the tribe is seeking basic assurance that they can continue to
practice their religion.
He argues that, "our freedom of
religion is being jeopardized because of the poor quality of
the Rio Grande.
We want to protect these rights."^"
Second, because the Rio Grande is the principle water
source for irrigation and stock,
the Tribal Council is
concerned that polluted waters will affect the entire food
chain on Isleta lands.
The Tribal Standards require that
"^Letter from Governor Lucero to Ellen Caldwell, USEPA
Region 6, August 6, 1993.
^''^Personal correspondence with Second Lieutenant Governor
Joseph Olguin: October 5, 1993.
87
"Toxic substances shall not be present in receiving waters in
quantities that are toxic to human, animal, plant, or aquatic
life,
or
in
quantities
that
interfere with
the
normal
propagation, growth, and survival of the sensitive indigenous
aquatic biota.""''
The standards regulate one hundred and
fifteen toxic substances.
Finally, the tribe is unwilling to compromise their
standards to placate Albuquerque. They view this as a natural
right extending from their inherent sovereignty.
The Pueblo
has never entered into a treaty with the United States and has
never relinquished their right to regulate the quality of
their waters.
The Pueblo Standards are an extension of this
sovereignty; that Albuquerque must follow tribal law is a
result of congressional legislation, namely the Clean Water
Act.
As Lt. Governor Olguin said, "All we are doing is
cooperating with Congress and helping them enforce their Clean
Water Act.""^
The Tribal Water Standards are actually an
agreement between the Federal Government, represented by the
EPA, and the government of Isleta to protect a mutually vital
resource - the Rio Grande.
Albuquerque has enlisted the support of many interest
groups throughout the state and the country to support their
"%ater Quality Standards, Section III (N).
"^Interview with Lt. Governor Olguin.
88
claim that the standards are unreasonable and should be
revoked. Their primary argument is that the standards are not
economically
feasible
Albuquerque's economy.
and
will
put
too
much
strain
on
One boisterous group is the Silver
Coalition who fear that the standards will hurt the silver
industry in and around Albuquerque.
Dr. Robert Kappel, an
environmental scientist and Doctor of Toxicology representing
the
Silver
Coalition
and
the
New
Mexico
Silver
Users
Association, argues that the silver restrictions imposed by
Isleta are too conservative and should be deleted, "because of
the potential severe economic hardships on the local community
and the adverse economic consequences that could result from
these limits."^''®
Bob Hogrete, of the Public Works Department for the City
of Albuquerque, also thinks the Pueblo Standards are too
strict and expensive to necessitate compliance by Albuquerque.
He estimates the cost of compliance at $248 million. The City
is attempting to exert their financial clout and attack the
standards on the grounds that the local economy will be
adversely affected. This argument is redundant because it is
the nature of environmental programs to be expensive.
The
reversal of decades of pollution can not be expected to come
^"•^Statement of Dr. Kappel at "NPDES Permit for City of
Albuquerque Hearing," August 25, 1993. (Recording Provided
by EPA Region Six).
89
cheaply.
For years the Rio Grande has served the silver
industry as an inexpensive dump site.
Now the industry is
being forced to seek out other methods for disposing their
toxic waste and the potential cost of such mechanisms has
created intense opposition to alternative measures.
A second argument raised against the Pueblo Standards is
that by approving the standards EPA violated the establishment
clause of the Constitution.
Greg Smith, Assistant City
Attorney for the City of Albuquerque, argues that
the establishment clause prohibits the Federal
government, at least, from having, among other
things,
excessive
entanglement
between
the
government and any religious entiuy. Although, to
the best of itiy knowledge the tribe is not precluded
from fostering a tribal religion, where the tribe
here has designated the primary contact ceremonial
use and expressly stated in the definition of that
designated use that it is for religious purposes,
the concominent adoption by EPA is fostering that
religious purpose for the tribe."'
This argument is severely flawed.
created to enforce federal law.
First, the EPA was
Under such law. Tribal
governments are to be aided, by the EPA, in establishing
environmental codes.
treat
tribes
Furthermore, the EPA is required to
as states
reservation environments.
for
the
purposes
of
regulating
This means that if a tribe wishes
to enact environmental standards the EPA must recognize this
authority
and
require that
surrounding
governing
bodies
"''statement of Greg Smith. "NPDES Permit for the City of
Albuquerque." August 25, 1993.
90
conform with the applicable codes. By approving the Pueblo of
Isleta's Water Quality Standards, the EPA was merely enforcing
the laws of Congress.
The distinction between purpose is
irrelevant to the EPA's decision.
As noted earlier, the EPA
is not empowered to lessen the standards of a recognized
tribe, or state, regardless of their motives for enacting such
standards.
Second, the EPA is not fostering a tribal religion.
Instead they are fostering the rights of a sovereign people
who wish to be able to drink the water that enters their
reservation. Tribal communities generally regard all of their
natural resources as sacred. There is no delineation between
the spiritual and the secular, as all are interwoven into a
cycle
of
interconnectedness.
If
this
reading
of
the
Constitution is valid then the Federal government must end all
relations with the state of Israel, a Jewish state which
utilizes federal dollars to protect, amongst other things, the
Judaic religion.
Similarity the U.S. must cease to exempt
churches and religious organizations from paying taxes.
A
final
argument
presented
by
Albuquerque
and
its
supporters is that the data used to draft the Pueblo standards
may be flawed. It is not the nature of this paper to analyze
the data used to femulate complex environmental standards, so
^'^^Supra at note 131.
91
this argument will be left to the courts. After meeting with
several tribal employees all refused to comment on the source
of their data because of the pending lawsuit.
This is one
area where the court may question the Isleta standards, if
they find that Albuquerque has a valid claim.
The City of Albuquerque has not attempted to argue
Isleta's jurisdictional authority. The Clean Air Act is very
clear in recognizing tribal autonomy
have consistently
upheld
tribal
and the federal courts
environmental
regulatory
authority. Because they have little legal footing on which to
stand, Albuquerque has chosen to argue that the Standards are
impractical and not good for the econorrr^. These arguments are
weak because at some point metropolises like Albuquerque will
be forced to address their destructive trends and it will
never be inexpensive.
but when.
The question is not if they will pay,
92
The All Indian Pueblo Council
Isleta is one of nineteen Pueblo members of the All
Indian Pueblo Council (AIPC).
shared
a
close
relationship
The Pueblos have historicallywith
each
other
organization has existed for hundreds of years.
1920s Commissioner of
and
this
During the
Indian Affairs Burke attempted to
dissolve
the AIPC
Council.
This body was supervised by the BIA and could only
meet once a year.
by creating
the United
States Pueblo
The Pueblos ignored the USPC and instead
adopted a constitution and by-laws of their own. Burke's USPC
proved
to
be
useless
and
eventually
was
disbanded
altogether.
The AIPC has since grown in significance.
They now act
as a liaison between the Federal government and the nineteen
Pueblos that constitute its membership.
The AIPC has become
an inteirmediary which utilizes federal funds to implement
programs on the Pueblos. They serve the tribes in instigating
health, education, environmental, economic development, and
other programs which the Pueblos can not finance or operate on
their own individually. It is important to note that the AIPC
does not preempt any governmental powers from the various
Pueblos.
Instead the AIPC responds to tribal requests.
Decision making and prioritizing is left to the individual
^''^Sando, 1976: 79-80.
93
tribal councils.
One problem the EPA faces is adequately representing all
the individual tribal governments. Prior to the 1984 Policy
Statement
they only dealt with fifty states.
With the
inclusion of tribes as regulating authorities they are now
accountable to five hundred and eleven more governmental
entities.
EPA Deputy Administrator F. Henry Habicht II noted
that
The sheer number of tribes. . .presents a
challenge, but not in our view an insurmountable
one.
Over the years we have developed what we
believe is a successful partnership with the fifty
state governments.
VJe are now committed to
developing the same sort of partnership with tribal
governments. . . This is a formidable challenge,
although I do believe that we can successfully meet
it.^^°
It is evident that establishing relationships with so many
entities is going to require ingenuity, experimentation, and
cooperation from both the tribes and the EPA.
Especially
considering the diversity in geography, culture, organization,
and needs throughout Indian country.
A model like the AIPC
could prove effective for other tribal organizations.
The AIPC coordinates federal programs for the nineteen
Pueblos.
In 1991 the AIPC established the Pueblo Office of
Environmental Protection (POEP).
This office works with the
various pueblo governments to provide technical support.
^^°Statement of F. Henry Habicht II, S.Hrg 101-412: 46.
94
Isleta is one example of how this type of organization
benefits small tribes.
When Isleta was informed that the EPA would support an
initiative to regulate the water quality of the Rio Grande,
they had neither the technical background nor the financial
resources to write an informed proposal.
had recently established the POEP
personnel.
However, the AIPC
which employed competent
POEP was trained and staffed through federal
dollars allocated from the EPA to the AIPC. The Isleta Tribal
Council appealed to the POEP for help in formulating a water
quality policy.
POEP sent out their technical advisors who conducted
field tests to determine the overall quality of the river.
POEP's technical staff, with help from the EPA, then advised
the Tribal Council on the conditions and some possible
solutions.
Together the Council, the POEP, and the EPA
ascertained
the
designated
uses
which
formulate standards based on those needs.
allowed
them
to
Thus Isleta was
able to draft a proposal despite their lack of technical
expertise.
The All Indian Pueblo Council works directly with the EPA
to access federal funding. In 1991 the AIPC signed a contract
with the EPA to fund the POEP for one year.
In that year the
POEP set up a network with the nineteen Pueblos and identified
one hundred hazardous waste sites throughout the various
95
Pueblos.
Each
specialist
Pueblo
was
assigned
an
environmental
if they did not already have an established
environmental office within the tribe. In this manner the EPA
can allocate one block grant which then can be applied to
benefit all nineteen tribes. This eliminates the unnecessary
paper work required for grant applications, it concentrates
the federal dollar in one office which has the capacity to
work with several tribes, and it allows small tribes who lack
the financial base to support a comprehensive environmental
program
to
have
access
to
technical
advisors
without
sacrificing already limited resources.
The AIPC was refunded by the EPA in 1992 and will be
refunded for a third year. With this grant the POEP hopes to
establish a mobile lab which can facilitate all the Pueblos
with out
establishing
reservation.
Indians.
expensive
infrastructures
on
each
They also hope to use the EPA funds to train
Currently Indian students are not well represented
in university degree programs specializing in environmental
science.
The AIPC had drafted a pilot program with the
University of New Mexico to coordinate programs for training
Indians, but it never materialized. The POEP has had problems
finding Indians who are qualified.
In an effort to boost
Indian representation they now hire Indian students who may
^^^Personal correspondence with James Hena, Chairman of
the All Indian Pueblo Council: October 7, 1993.
96
not be fully qualified but have the potential and enough
background to adequately contribute to their staff.
This
works like an apprentice program where Indian students learn
through experience.^"
Regional consolidation under an umbrella organization
like the AIPC can serve as a model for other small tribes who
also find themselves inadequately funded and staffed.
This
type of organization can effectively serve many small tribes
by utilizing funds to establish one large infrastructure that
serves an entire region.
As Chairman Hena noted "the All
Indian Pueblo Council gives each tribe the same federal dollar
instead of splitting it nineteen ways."^^^
In addition, this
does nothing to limit the independence of each tribe.
The
tribes can still be funded individually if their needs are in
excess of what the AIPC can provide.
In no way would
participation in a consolidated organization limit tribal
rights, it only serves to enhance tribal regulatory authority.
'"Ibid.
'"Ibid.
97
The Monitoring-Educational Center at Isleta
Lack of technical expertise is continually cited as one
of the major obstacles to effective implementation of tribal
environmental programs. Isleta is no exception. The current
environmental staff at Isleta consists of one environmental
specialist who is employed through the POEP.
Implementation
of the water quality standards is going to require a much
larger staff if Isleta expects to enforce their regulations.
However, very few tribal members pursue a college education so
the tribe might be forced to rely on outsiders to manage their
programs. Finding qualified personnel is further complicated
because the pay scale is considerably lower than that which
private companies or state and local agencies can offer.
Attracting a dedicated, qualified person willing to work in an
understaffed office with minimal facilities is proving to be
difficult.
The
AIPC
and
POEP
continue
to
lend
their
technological support, but Isleta is ultimately seeking to
eliminate their dependence upon outsiders to implement tribal
programs.
The Pueblo of Isleta recognizes that if they are to truly
assume
primacy
over internal
affairs
they
must
address
several underlying issues. The primary concern is education.
The BIA operates an elementary school within the Pueblo.
After grade six Isleta children are required to attend offreservation schools in Albuquerque. Teih-nen want to keep the
98
children on the reservation so they can develop within the
context of the community. The People fear that bussing leads
to alienation from community involvement.
Furthermore, few
Isletans go on to college and fewer still graduate.
children
are
generally
not
prepared
for
higher
Isleta
skilled
positions.
The second area of concern is economic development. The
tribe
operates
a
bingo
casino,
a
camping
recreation area, and a few small Tribal
and
and
fishing
commercial
enterprises. Additional employment is provided by some small
Indian owned contracting firms and through individual arts and
craft endeavors.
exist
in
The only other employment opportunities
the surrounding
off-reservation
communities
of
Albuquerque, Los Lunas, Belen and Socorro. Manual labor jobs
provide temporary income occasionally and currently is one of
the major sources of
employment.
The
Tribe wishes
to
establish a more secure employment base within the reservation
boundaries. However, they do not want to sacrifice their land
or community values to obtain wealth.
Finally, Isleta wants to preserve and enhance their
cultural identity.
religious practices.
The core of this centers around their
Because the Rio Grande serves as the
foundation to many rituals it is vital that they protect the
waters. According to Lieutenant Governor Olguin the river is
analogous to an alter
in other religions.
He stated.
99
"Catholics go to their alters and receive communion; they are
communicating with God.
The Rio Grande is our alter.
However,- unless Isleta can effectively implement their water
standards the river will remain toxic and this will severely
disrupt the cultural continuity that has maintained Teih-nen
for centuries.
To address the aforementioned issues the Pueblo of Isleta
has
drafted
a
proposal
for
environmental research center.
the
construction
of
an
Through the research center
and the addition of a Tribally controlled K-12 school system,
the Tribe "proposes to integrate school programs and resources
with
the
current
Tribe.
water
quality
issues
confronting
The research consortium would
be staffed
the
by
representatives from business, industries, universities, and
other community agencies with interest in fostering technical
research into environmental issues.
Isleta hopes the
research center could become a nucleus for scholars to conduct
research and engage in enlightened debate. This in turn would
1) PROVIDE decision makers a comprehensive and
scientific data site to address water quality
^^''2nd Lt. Governor Olguin: October 7, 1993.
^^^Pueblo of Isleta, Office of the Governor.
Native
America 2000: A Cooperative Venture for Long Term Planning:
at 4.
^"Ibid.
100
issues from a factual standpoint.
2) UTILIZE scientific data for specific research
directions that will lead to tangible legislative
action to preserve water quality.
3) PROVIDE scientific data for all diverse interest
groups to address water quality issues under a
meaningful and constructive agenda.^"
The
Isleta
cooperation
addressing
government
and
informed
water
quality
also
stresses
discourse
issues.
the
between
"Most
of
need
parties
the
for
in
public
awareness about such matters has been brought out as a result
of differences and conflicts, not interests.
This may
help to resolve disputes between the tribe and upstream users
over the quality of the data used to determine policy at
Isleta.
An integral aspect of the proposal is the creation of a
K-12 school system.
The goal is long term and intended to
begin the process of educating the reservation population to
prepare them for technical position both within the tribe and
in the non-Tribal society. The Tribal government argues that
integrating "water quality issues into the school provides
students with opportunities to become involved in studying
along with professionals who are addressing these issues.
These experiences will be readily
^"ibid., 6.
'^®Ibid., 5.
incorporated into the
101
school's core programs of math, sciences, English, history,
etc..
The
goals
and
ideals
of
such
a
project
are
only-
attainable through financial and technical support.
To
achieve this Isleta has been working with the Waste-management
Education and Research Consortium (WERC). WERC was formed in
1989 "for the purpose of expanding the national capability to
address problems in both the public and
private sector
associated with the management of radioactive, hazardous and
solid wastes by providing a national resource of education and
research
programsWERC
membership
consists
of
New
Mexico State University, the University of New Mexico, the New
Mexico Institute of Mining and Technology, Navajo Community
College at Shiprock, Sandia National Laboratories, and Los
Alamos National Laboratory/®^
WERC and the Pueblo of Isleta submitted a proposal to the
Department
of
Energy
in
April,
1993.^"
WERC
requested
funding to establish the Monitoring-Educational Center at
Isleta (MECI) which would operate for the purposes discussed
'"Ibid., 6.
'®°Waste-management Education and Research Consortium.
The Monitoring-Educational Center at Isleta Proposal.
Submitted to the Department of Energy, April, 1993: 3.
Hereinafter cited as WERC, 1993.
'"Ibid., 4.
'"Ibid.
102
above.
The MECI proposal requests a total of $3,447,000 to
construct, staff, and equip the proposed research center for
the first five years, after which the Pueblo and WERC would
assume all responsibility.
A two phased program of implementation was also proposed.
The first phase would operate from August 1, 1993 to the end
of fiscal year 1994.
This would include hiring of the
Director
construction
and
staff,
of
facilities,
and
acquisition of monitoring equipment. Interim testing would be
conducted at one of the existing WERC laboratories.
The
second Phase would begin in 1995 and continue through FY98.
During this phase the construction would be completed, the
center would be filly staffed, program guidelines established,
and educational activities and policies enacted.
The main object of this joint endeavor is two-fold.
First,
the MECI will monitor
the
Rio
Grande.
Through
monitoring a data base will be collected and serve as a
resource for research and policy decisions. MECI will work in
conjunction with other research facilities through New Mexico.
Already
NMSU,
UNM,
and
various
community
colleges
have
established programs with laboratories where students can
study and gain college credit.
In addition, professors are
encourage to conduct research at these facilities. MECI would
^"Ibid., 4.
103
be an addition to the existing network of Institutions and
laboratories.
Second, MECI will create a training program for tribal
members.
This will
provide both
education as well
employment opportunities within the reservation.
as
"Education
will not only address the theoretical aspects of environmental
science but also the spiritual and rich cultural practices" of
the people of Isleta.^"
This program will address the cultural, educational,
environmental, and economic interests of the Pueblo of Isleta.
Approaches such as this are new in scope but offer numerous
benefits.
Through the establishment of the MECI, Isletans
could educate their children according to the policies and
directives of the community within the geographic boundaries
of the Pueblo.
short
term
Construction of the facility will provide
employment
and
bring
reservation in the next five years.
$3.4
million
onto
the
It will also provide an
educational base which will later provide long term employment
and a constant source of revenue to the reservation.
In
addition, this source of revenue will coincide with the
traditional interests of the people and bring no adverse
ecological or societal effects. Finally, the research center
will
provide a mechanism
^"Ibid., 11.
by which
the Isleta
Tribe to
104
implement their environmental standards in an informed and
effective manner.
Finally,
the
MECI
will
ease
communication
between
Albuquerque and Isleta. Dialogue between the two entities is
necessary to implement any programs in either community.
Albuquerque have become inextricably bound through their
mutual interests in the Rio Grande and they will both be
served if the MECI can bolster this relationship.
Only
through dialouge can their be understanding.
Additional funding may be available to the tribe through
the
National
Environmental
Education
Act
of
1990.'-®^
Congress declared in section 2 of this act that, "it is the
policy of the United States to establish and support a program
of education on the environment, for students and personnel
working with students, through activities, and to encourage
postsecondary students to pursue careers related to the
environment."^®®
Tribal education agencies are included in
the definitional language as eligible institutions as long
they are not already administered by the BIA.^"''
The Act appropriates $12 million for FY92 and FY93, $13
million for FY94, and up to $14 million for FY95 an FY96.
^"104 Stat., 3325 (P.L. 101-619).
^®®Ibid., Section 2 (b).
^®^Ibid., Section 3 a (8).
105
Section six states that "the Administrator [of the EPA] may
enter into a cooperative agreement or contract, or provide
financial assistance in the form of a grant, to support
projects to design, demonstrate, or disseminate practices,
methods, or techniques related to environmental education
training."^®®
provisions.
Clearly
the
MECI
qualifies
under
these
Whether the funds are accessible is not known,
but the possibility should be explored.
In general, Isleta has witnessed significant increase in
their regulatory authority since 1984. So much in fact, that
Albuquerque may soon be required to comply with tribal law.
The EPA has engaged the tribe in decision making and has
supported the tribe's desire to assume primacy over water
regulation.
In addition,
the EPA
has a
solid working
relationship with the AIPC and the other eighteen Pueblos that
operate within this network.
Peter Balleau, a hydrologist
assisting the Pueblo with the collection of data, speaking for
the tribe in favor of the NPDES permit issued to the city of
Albuquerque stated:
We recognize the EPA has been very responsive
in addressing the Pueblo Standards in this proposed
permit. We think the approach you have taken. . .
is new, we think its very suitable, and we're
pleased to see the Pueblo's effort in establishing
^®®Ibid.
106
standards being recognized in this permit."^
"'statement of Peter Balleau, August 25, 1993.
107
CHAPTER IV
CONCLUSION
This paper set out to determine the effectivenes of the
EPA's Indian Policy Statement
of
1984 by
examining
the
experience of the Isleta Pueblo. While the scope of a tribal
specific study such as this is necesarily limited to one
Region of the EPA, one tribe, and one scenario, much can be
learned.
First, the general situation for tribes in the
environmental regulating arena has improved.
Prior to 1984
tribal regulatory programs were non-existent.
Since the
proclamation of the Indian Policy Statement in 1984, tribes
have witnessed a substantial increase in their regulatory
powers.
While
many
tribes
still
face
impediments
to
actualizing their rights, the EPA has openly engaged in
communication
with
tribal
leaders
and
environmental
specialists to determine their shortcommings as an agency. It
can not be stated that the EPA has neglected tribal input in
policy
decisions.
On
the
contrary
the
EPA
has
often
approached tribes, as they did with Isleta, to inform them of
their rights as sovereign entities.
Since the adoption of the EPA Indian Policy all of the
environmental statutes have been amended to include tribes as
regulating authorities except RCRA.
This has opened the
avenues of funding to tribes and they are beginning to utilize
these funds to establish programs on the reservations.
In
108
addition, the EPA has supported tribal proposals to instigate
environmental programs.
While the EPA still allocates a
disproportionate share of their budget to states. Congress,
through the Environmental Regulatory and Enhancement Act of
1990 and the National Environmental Education Act of 1990, has
created new funding mechanisms for tribal programs. Yet manytribes still harbor valid complaints against the EPA.
The early portion of this paper presented many complaints
against the EPA.
Inadequate funding, unnecessary delays in
approving tribal proposals, lack of communication between the
Agency and tribes were most notable.
However, in examining
the Isleta experience it was demonstrated that
not all is
bleak in the EPA's relationship with tribes.
The major
problem Isleta faces is lack of funding.
This however is a
problem in all areas of the government.
What accounts for
Isleta's relatively smooth acquisition of primacy and the
effective manner in which the EPA is supporting the tribe?
First, Isleta only deals with one region of the EPA.
Region Six has worked closely with the Isleta government and
with
the
Pueblo
Office
of
Environmental
Protection
establish the Pueblo's water qualty standards.
to
EPA's close
relationship with the AIPC and POEP also benefits the other
eighteen Pueblos in New Mexico. However, the Pueblo of Isleta
has been left to implement these standards on their own.
Instead of griping about EPA's lack of financial and technical
109
support, Isleta has sought out other mechanisms to achieve
their goals. Both the tribe and the POEP feel confident that
the EPA will win the lawsuit with Albuquerque and the Pueblo
standards will take effect.
The proposal to the DOE for MECI
is also expected to be approved.
Second, it must be remembered that no one is completelysatisfied with the EPA.
States complain of limited funding,
industry argues that standards are too strict and limit
profits, and conservation groups insist that the EPA is more
concerned
with
environment.
comes
protecting
the
bureaucracy
than
the
Environmental degradation occurs quickly, it
cheaply
to
polluters,
and
requires
no
expertise.
Conversely, the nature of environmental policy is inherently
slow, expensive, and complicated. Some of the problems noted
by
tribes
are
experience.
problems
that
all
regulating
authorities
Tribes and the EPA must recognize this and
attempt to work together to develop unique programs which suit
tribal needs.
The EPA is accustomed to working with well
established state agencies with large, competent staff. They
will have to reasses their approach when dealing with the
small, relatively inexperienced tribal staffs.
Tribes are
empowered to regulate their environents legally, however the
implementation of these rights is going to take patience,
communication, and unfortunately time.
Finally, intratribal mechanisms like the AIPC offer an
110
additional option for other tribal communities.
The AIPC is
part of the traditional framework of the Pueblo life and is
continually adapted to address current issues that the tribes
face. This sort of organization has proven beneficial to the
nineteen Pueblos in several ways and can be utilized by other
tribes.
As is demonstrated
by the AIPC, consolidating
resources in regional offices does not necessarily require any
sacrifice of individual autonoiry. In fact, it can be employed
to increase the independence and effectiveness of many small
tribal governments.
By choosing to focus on the education of tribal members,
Isleta has embarked on long term plan to improve the quality
of life for the community.
In addition, the plan will bring
immediate short term economic results.
This also conforms
with general federal policies that encourage environmental
education
programs,
that
bolster
Indian
educational
opportunities, and that support tribal economic development
projects. The Monitoring and Educational Center at Isleta is
an innovative approach to many intertwined issues.
It
addresses the immediate needs of the tribal government in
regards to their environmental codes while also creating
several opportunities for the Pueblo of Isleta to enhance and
preserve
the
health,
education,
conditions of the Teih-nen.
culture,
and
economic
Ill
LIST OF ABREVIATIONS
AIPC
ANA
BIA
CAA
CAAA
CERCLA
EIS
EPA
FIFRA
FWPCA
IWG
MECI
NEPA
NPDES
PIWQS
POEP
RCRA
SARA
SDWA
TAS
USPC
WERC
All Indian Pueblo Council
Administration for Native Americans
Bureau of Indian Affairs
Clean Air Act (1972)
Clean Air Act Amendments (1977)
Comprehensive
Environmental
Response,
Compensation, and Liability Act (1980)
Environmental Impact Statement
Environmental Protection Agency
Federal Insecticide and Rodenticide Act (1975)
Federal Water Pollution Control Act (1972)
Indian Work Group
Monitoring and Education Center at Isleta
National Environmental Protection Act (1969)
National Pollutant Discharge Elimination System
Pueblo of Isleta Water Quality Standards
Pueblo Office of Environmental Protection
Resource Conservation and Recovery Act (1976)
Superfund Amendments and Reauthorization Act
(1986)
Safe Drinking Water Act (1974)
Treatment as a State
United States Pueblo Council
Waste-management Education and Research Consortium
112
TABLE OF CASES
United States v. Joseph 94 U.S. 614 (1876)
United States v. Sandoval 231 U.S. 28 (1913)
Davis
V .
Morton
469 F.2d
593 (1971)
Oliphant v. Suguamish 435 U.S. 191 (1978)
Montana v. U.S. 450 U.S. 544 (1981)
Nance v. EPA 695 F.2d 701 (1981)
Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana v. Namen 665 F.2d 951 (1982)
Washington Department of Ecology v. EPA 752 F.2d 1465 (1985)
Blue Legs v. EPA 668 F. Supp. 1729 (1987)
Brendale v. Confederated Tribes and Bands of the Yakima
Nation 492 U.S. 408 (1989)
Duro
V .
Reina 495 U.S. 676 (1990)
113
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