🌲Indigenous Peoples and Environmental Change Unit 10 – Tribal Sovereignty in Environmental Policy

Historical Context

• Indigenous peoples have inhabited North America for thousands of years, developing diverse cultures, languages, and ways of life
• European colonization and westward expansion led to the displacement, forced relocation, and decimation of many Indigenous communities
• Treaties between Indigenous nations and the U.S. government established a nation-to-nation relationship and recognized tribal sovereignty
  • Early treaties (1778-1871) focused on trade, peace, and land cessions (Treaty of Greenville, 1795)
  • Later treaties (1871-1914) addressed land allotment and assimilation policies (Dawes Act, 1887)
• Federal policies shifted from assimilation to self-determination in the mid-20th century (Indian Reorganization Act, 1934)
• Environmental degradation and resource exploitation on tribal lands have been ongoing challenges for Indigenous communities
  • Examples include uranium mining on Navajo Nation lands and the construction of hydroelectric dams (Garrison Dam, 1953)

Defining Tribal Sovereignty

• Tribal sovereignty refers to the inherent right of Indigenous nations to govern themselves and manage their internal affairs
• Sovereignty is not granted by the U.S. government but is an inherent right of Indigenous peoples as the original inhabitants of the land
• The U.S. Constitution recognizes tribal nations as distinct political entities (Commerce Clause, Article I, Section 8)
• Tribal sovereignty includes the authority to establish laws, govern citizens, and manage resources within tribal territories
  • This authority extends to environmental protection and natural resource management
• The federal trust responsibility obligates the U.S. government to protect tribal resources and act in the best interests of Indigenous nations
• Tribal sovereignty is not absolute and can be limited by federal law or treaty provisions
  • The U.S. Congress has plenary power over Indigenous affairs (Lone Wolf v. Hitchcock, 1903)

Key Environmental Policies

• The National Environmental Policy Act (NEPA) of 1969 requires federal agencies to assess the environmental impacts of proposed actions
  • NEPA mandates consultation with affected tribal governments and consideration of cultural resources
• The Clean Water Act (CWA) of 1972 regulates water pollution and allows tribes to assume regulatory authority over water quality standards
  • Tribes can apply for "treatment as a state" (TAS) status under the CWA to manage water resources within their territories
• The Clean Air Act (CAA) of 1970 regulates air pollution and allows tribes to assume regulatory authority over air quality standards
• The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 addresses the cleanup of hazardous waste sites
  • CERCLA includes provisions for tribal involvement in the Superfund cleanup process
• The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 requires federal agencies and institutions to return Native American cultural items and human remains to their respective tribes
• Executive Order 12898 (1994) directs federal agencies to address environmental justice issues and ensure the fair treatment of minority and low-income populations, including Indigenous communities

Tribal Rights in Environmental Decision-Making

• Tribal governments have the right to participate in environmental decision-making processes that affect their lands, resources, and communities
• Federal agencies are required to consult with tribal governments on a government-to-government basis regarding environmental issues (Executive Order 13175, 2000)
  • Consultation should be meaningful, timely, and respectful of tribal sovereignty
• Tribes have the right to free, prior, and informed consent (FPIC) regarding projects or actions that may impact their territories or resources
  • FPIC is a principle recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007)
• Tribes can develop their own environmental laws, regulations, and standards that are at least as stringent as federal standards
  • The Navajo Nation has its own Environmental Protection Agency (Navajo EPA) that oversees environmental programs on Navajo lands
• Tribal ecological knowledge (TEK) and traditional practices should be respected and incorporated into environmental decision-making processes
• Tribes have the right to access and protect sacred sites, cultural resources, and traditional use areas within their ancestral territories (American Indian Religious Freedom Act, 1978)

Case Studies and Precedents

• The Dakota Access Pipeline (DAPL) controversy highlighted the importance of tribal consultation and the protection of cultural resources
  • The Standing Rock Sioux Tribe opposed the pipeline's construction near their reservation due to concerns over water contamination and the destruction of sacred sites
  • The tribe's legal challenges and protests garnered international attention and raised awareness about Indigenous rights and environmental justice
• The Boldt Decision (United States v. Washington, 1974) affirmed the treaty rights of Pacific Northwest tribes to harvest salmon and manage fisheries in their traditional territories
  • The decision recognized the tribes as co-managers of the fisheries alongside the state of Washington
• The Klamath Basin water conflict involved competing claims to water resources among Indigenous tribes, farmers, and wildlife in Oregon and California
  • The Klamath Tribes hold senior water rights and have worked to restore the basin's ecosystem and salmon populations
• The Gold King Mine spill (2015) released toxic wastewater into the Animas and San Juan Rivers, affecting the Navajo Nation and other downstream communities
  • The spill highlighted the legacy of mining pollution on tribal lands and the need for improved environmental safeguards and remediation efforts

Current Challenges and Conflicts

• Climate change disproportionately impacts Indigenous communities, exacerbating existing environmental, economic, and social vulnerabilities
  • Rising sea levels, coastal erosion, and permafrost thaw threaten the livelihoods and cultural heritage of Alaska Native villages
  • Changing weather patterns, drought, and wildfires affect the availability of traditional foods and medicines for many Indigenous communities
• Resource extraction and development projects (mining, oil and gas, pipelines) continue to pose risks to tribal lands, waters, and cultural resources
  • The proposed Pebble Mine in Alaska threatens the world's largest sockeye salmon fishery and the subsistence way of life of the Bristol Bay tribes
• Inadequate funding and capacity for tribal environmental programs hinder the ability of tribes to effectively manage their resources and enforce environmental laws
• Conflicts between tribal sovereignty and state or federal jurisdiction can complicate environmental regulation and enforcement on tribal lands
  • The U.S. Supreme Court's decision in Oklahoma v. Castro-Huerta (2022) expanded state criminal jurisdiction on tribal lands, potentially impacting tribal authority over environmental matters

Collaborative Approaches and Solutions

• Government-to-government consultation and collaboration between federal agencies and tribal governments can lead to more effective and equitable environmental decision-making
  • The Bears Ears Inter-Tribal Coalition successfully advocated for the designation of Bears Ears National Monument in Utah to protect cultural and natural resources
• Co-management agreements and partnerships between tribes and federal or state agencies can promote shared stewardship of resources and incorporate traditional ecological knowledge
  • The Nez Perce Tribe and the U.S. Forest Service have a co-management agreement for the protection and restoration of salmon habitat in the Columbia River Basin
• Tribal-led conservation initiatives and Indigenous Protected and Conserved Areas (IPCAs) recognize the role of Indigenous peoples in preserving biodiversity and cultural heritage
  • The Heiltsuk Nation in British Columbia, Canada, established the Gwaii Haanas National Park Reserve and Haida Heritage Site to protect their ancestral lands and waters
• Collaborative research and monitoring projects that involve tribal communities, scientists, and agencies can generate valuable data and inform environmental decision-making
  • The Swinomish Indian Tribal Community in Washington has partnered with universities and agencies to assess the impacts of ocean acidification on shellfish and develop adaptation strategies

Future Directions and Implications

• Strengthening tribal sovereignty and self-determination in environmental matters is crucial for the well-being of Indigenous communities and the protection of their lands and resources
• Incorporating Indigenous knowledge systems and values into environmental policy and practice can lead to more holistic, resilient, and culturally appropriate solutions
  • The Indigenous Guardians program in Canada supports Indigenous-led stewardship and monitoring of traditional territories
• Addressing environmental justice and the disproportionate impacts of environmental degradation on Indigenous communities is an ongoing challenge that requires systemic change and meaningful action
• Investing in tribal capacity building, education, and workforce development can empower Indigenous peoples to take the lead in managing their resources and shaping their environmental futures
• Recognizing and upholding the rights of Indigenous peoples, as outlined in UNDRIP and other international instruments, is essential for achieving sustainable and equitable environmental outcomes
• Collaborative, cross-jurisdictional approaches that respect tribal sovereignty and foster partnerships among Indigenous nations, governments, NGOs, and other stakeholders will be key to tackling complex environmental challenges in the 21st century