Tribal Lands and Environment: A National Forum on Solid Waste, Emergency Response, Contaminated Sites and Underground Storage Tanks

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1 Tribal Lands and Environment: A National Forum on Solid Waste, Emergency Response, Contaminated Sites and Underground Storage Tanks August 20-23, 2012 Mill Casino and Hotel Coquille Indian Tribe 1

2 Where Does Indian Trust Doctrine Come From and Where is it Going? Cross Media/Technology Hazel Room August 22, :30 3:00 p.m. Gregory T. Hixson Short Cressman & Burgess PLLC

3 What is a Trust? Ancient Legal Concept Three Requirements: Trustee Beneficiary Corpus Does it Apply to Natural Resources? 3

4 What is a Public Trust? California Supreme Court: The public trust...is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands. National Audubon Society v. Superior Court (1983) 4

5 Origins of Public Trust Doctrine Roman Emperor Justinian English Common Law (Magna Carta) American Jurisprudence -- Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892): "It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found... 5

6 Origins of Public Trust Doctrine with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) (emphasis added). 6

7 Native Tribes History of Public Trust In all of your deliberations in the Confederate Council, in your efforts at law making, in all your official acts, self interest shall be cast into oblivion. Cast not over your shoulder behind you the warnings of the nephews and nieces should they chide you for any error or wrong you may do, but return to the way of the Great Law which is just and right. Look and listen for the welfare of the whole people and have always in view not only the present but also the coming generations, even those whose faces are yet beneath the surface of the ground the unborn of the future Nation. (Emphasis Added). The Constitution of the Iroquois Nations, The Great Binding Law, Gayanashagowa (1720) 7

8 Indian Trust Doctrine Trust Doctrine Based on Government s Obligation to Its People U.S. Government s Obligation to Native People Sovereign s Obligation to a Sovereign People Historical Context Recognition of Interconnectedness of Environmental Regulation 8

9 U.S. Government Obligation to Indian Tribes The fiduciary relationship has been described as one of the primary cornerstones of Indian law, and has been compared to one existing under a common law trust, with the United States as trustee, the Indian tribes or individuals as beneficiaries, and the property and natural resources managed by the United States as the trust corpus. (Emphasis Added). DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 11 (U.S. 2001) (quoting F. Cohen, Handbook of Federal Indian Law 221 (1982)). 9

10 U.S. Government Obligation to Indian Tribes We recognize that there is a distinctive obligation of trust incumbent upon the Government in its dealings with [Indian tribes]. United States v. Mitchell (Mitchell II), 463 U.S. 206, 225, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). 10

11 Where Does Indian Trust Doctrine Derive? The trust doctrine is a prominent doctrine in Indian law, but it is also perhaps the most amorphous. Its precise origin and content remain unclear after nearly two centuries of jurisprudential interpretation Utah L. Rev. 1471, 1496 (Mary Christina Wood) 11

12 Where Does Indian Trust Doctrine Derive? The vast cessions of land by the native peoples were premised on federal promises that the native peoples could continue their way of life on homelands of smaller size, free from the intrusions of the majority society Utah L. Rev. 1471, 1496 (Mary Christina Wood) 12

13 Where Does Indian Trust Doctrine Derive? Sovereign Trusteeship Trade and Intercourse Acts ( ) Federal protection premised on native sovereignty and separatism Framed as prohibitions and restraints against non- Indians, not as assertions of power over Indians 13

14 Where Does Indian Trust Doctrine Derive? The utmost good faith shall always be observed toward the Indians, their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in justified and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. -- Northwest Ordinance of

15 Where Does Indian Trust Doctrine Derive? The relation [between the Cherokee Nation and the United States] was that of a nation claiming and receiving the protection of one more powerful.... [The Treaty of Hopewell] thus explicitly recognizes the national character of the Cherokee, and their right of self-government; thus guaranteeing their lands; assuming the duty of protection is not in full force. Worchester v. Georgia, 31 U.S. (Pet. 6) 515,560 (1832) 15

16 Where Does Indian Trust Doctrine Derive? The Politics of Andrew Jackson 16

17 Jackson s Indian Removal Policy Indian Removal Bill The Bill for an Exchange of Lands with the Indians Residing in Any of the States or Territories, and for Their Removal West of the Mississippi Passes House, May 26, 1830: 102 to 98 Treaty of New Echota, Implementing Bill, Passes Senate by 1 Vote 17

18 Jackson s Indian Removal Policy Treaty Consideration: Massive Wealth in Land Received, What Was Given? Cherokees Representing 1/16 th of displaced people agreed to Treaty of New Echota; 15/16 th Did Not The Result is the Trail of Tears 1/4 Cherokees Die On Trail 18

19 Trail of Tears 19

20 Where Does Indian Trust Doctrine Derive? United States v. Kagama, 118 U.S. 375 (1886): Duty of Protection as basis for Federal authority over Tribes Resulted in the Plenary Power doctrine Supported policy of assimilation 20

21 Where Are We 150 Years Later? 21

22 Gros Ventre Tribe v. United States Gros Ventre Tribe, located on the Fort Belknap Indian Reservation in Montana 1970s: Cyanide heap-leach technology leads to open pit mining adjacent to Reservation Pollutes Water Supply for Tribe Tribe Sues 22

23 Gros Ventre Tribe v. United States The Tribes filed suit claiming that: The federal government breached its trust responsibility to the Tribes by approving, permitting, and failing to reclaim the mines, resulting in diminished water resources available to the Tribes. The federal government failed to consult with the Tribes, and consider their spiritual, cultural, and religious interests in the Little Rocky Mountains. 23

24 Gros Ventre Tribe v. United States The Tribes urge a theory of liability based on both the general trust law principles and a claim of agency inaction under the Administrative Procedure Act. Court found that none of the treaties cited by the Tribes impose a specific duty on the United States to regulate third parties or non-tribal resources for the benefit of the Tribes. Because the government's general trust obligations must be analyzed within the confines of generally applicable statutes and regulations, the Ninth Circuit rejected the Tribes claim that the Court could act on the Tribes claim when no treaty or statute supported it. 24

25 The Trust Doctrine as a Sword 1982 : Vigil v. Andrus, 667 F.2d 931, 934 (10th Cir. 1982) ("[T]he federal government generally is not obligated to provide particular services or benefits in the absence of a specific provision in a treaty, agreement, executive order, or statute.") 1995: Shoshone-Bannock Tribes v. Reno, 312 U.S. App. D.C. 406, 56 F.3d 1476, 1482 (D.C. Cir. 1995) ("[A]n Indian tribe cannot force the government to take a specific action unless a treaty, statute or agreement imposes, expressly or by implication, that duty.") 25

26 The Trust Doctrine as a Sword 1997: Miccosukee Tribe of Indians of Fla. v. United States, 980 F. Supp. 448, 461 (S.D. Fla. 1997) ("[T]he government assumes no specific duties to Indian tribes beyond those found in applicable statutes, regulations, treaties or other agreements.") 1998: Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998) ( [U]nless there is a specific duty that has been placed on the government with respect to Indians, [the government's general trust obligation] is discharged by [the government's] compliance with general regulations and statutes not specifically aimed at protecting Indian tribes. ) 26

27 The Trust Doctrine as a Shield Trust Doctrine Protects Agency Decisions Exceeding Standards for Protection of Tribal Resources Any federal government action is subject to the United States fiduciary responsibility to a Tribe. Nance v. EPA, 645 F.2d at 711 (9th Cir. 1981) EPA "bears a special trust obligation to protect the interests of Indian tribes, including protecting tribal property and jurisdiction. HRI, Inc. v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000) 27

28 Nw. Sea Farms v. U.S. Army Corps of Eng'rs NW Sea Farms sought a permit to construct a fish farm in the Rosario Strait of the Puget Sound. The U.S. Corps of Engineers denied the permit request as against the public interest because it would conflict with the Lummi Nation's fishing rights at one of its usual and accustomed fishing places. 28

29 Nw. Sea Farms v. U.S. Army Corps of Eng'rs NW Sea Farms argued that the Corp s regulations did not authorize consideration of Tribal fishing right in its permitting decision. The Court held that it is undisputed that a general trust obligation exists between the United States and the Indian People, and that this obligation imposes a fiduciary duty on any Federal government action. 29

30 Nw. Sea Farms v. U.S. Army Corps of Eng'rs In carrying out its fiduciary duty, it is the government's, and subsequently the Corps', responsibility to ensure that Indian treaty rights are given full effect. It is this fiduciary duty, rather than any express regulatory provision, which mandates that the Corps take treaty rights into consideration. 30

31 The Trust Doctrine as a Shield Parravano v. Babbitt, 70 F.3d 539 (9th Cir. 1995): Upheld regulations under Magnuson Act to protect tribal fisheries. Muckleshoot Indian Tribe v. Hall, 698 F. Supp (W.D. Wash 1988): Court issued injunctive order enjoining construction of a marina that infringed on the usual and accustomed fishing areas of the Tribe. 31

32 Battleground: Influence Legislation and Agencies If trust obligations are met by adhering to statute, or other specific agreements, engagement of political process critical Trust doctrine is powerful shield to protect those victories from judicial review But judicial review likely will not be a sword against legislative and agency defeats 32

33 Why Fight? Regulations Serving the United States May Not Serve Tribal Interests Problem of Whose Standard? Example: Water Quality Standards: Premised on Non-Tribal Fish Consumption 1991 Columbia River Inter-Tribal Fish Commission: Majority of Tribes eat 389 grams of fish per day EPA estimate 6.5 grams per day 33

34 Trust Doctrine Full Circle Failure of U.S. Trust obligation Pollution, global warming, threats to future generations Tribal influence of legislation and policy is self preservation, but also benefits public trust role inadequately fulfilled by U.S. Government Irony of trust relationship by forcing U.S. Government to honor Indian trust obligations, the U.S. Government honors public trust obligations 34

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