Post by blackcrowheart on Oct 3, 2005 12:12:04 GMT -5
The Federal - Tribal Relationship in General
The three branches of the federal government have formally acknowledged
tribal sovereignty during two centuries of treaties, executive actions,
legislation and judicial opinions. As a practical matter, however, the
United States has been inconsistent in its recognition of tribal
sovereignty, combining the concepts of international law, unfounded
contentions that Indian affairs fall- under domestic laws of the United
States and the changing social, political and morals of policymakers.
The United States, since its birth, has had a variety of fundamental
policies, or "eras," of Indian policy. Several periods of tribal
"status," as defined and practiced by the dominant society, are as
follows:
?? - 1787 Tribal Independence: The geographic area that is now known as
the United States was inhabited by independent, self-contained Indian
tribes. 1787 - 1828 Trade and Intercourse Acts: In addition to the
federal/tribal treaties that were signed starting in this period, the
federal goal was apparently to permeate the area of Indian affairs with
federal law. 1828 - 1887 Relocation of Indians: The Indian Removal Act
of 1830 forced eastern tribes to move west of the Mississippi; and the
gold rush in the 1840s displaced Indians in the west and forced them to
accept life on reservations often defined by the federal government.
Many Indians at this time became increasingly dependent upon the federal
government. 1887 - 1934 Allotment and Assimilation: With the passage of
the General Allotment Act of 1887, the federal government sought to
abolish tribes and assimilate Indians into the dominant society. The
government established a variety of programs to accomplish this,
including the break up of communally-held tribal lands and the allotment
of parcels to individual tribal members in the hope that they would
become farmers. 1934 - 1953 Indian Reorganization: In a reversal from
the previous era, the Indian Reorganization Act of 1934 prohibited
further allotment of tribal lands to individual Indians, and sought to
restore and increase tribal land holdings. The federal government at
this time attempted to help tribes become independent. 1953 - 1968
Termination: Congress abandoned reorganization goals and terminated many
federal benefits and support services for tribal members. 1968 -
Present Tribal Self-Determination: Then-President Johnson denounced the
termination policy and declared that tribal autonomy would once again be
promoted.
In addition to the current era of Indian policy, the methods used by
each branch of the federal government--the president and his executive
office, the Congress, and the federal courts--to address tribal issues
define the overall relationship that tribes have with the federal
government.
The Executive Branch
For more than 200 years, U.S. presidents and executive agencies have
assumed primary responsibility for establishing relationships between
the federal government and Indian tribes, and for ensuring the
implementation of congressional legislation related to Indian affairs.
Historically, this assumption of responsibility was a result of the
nature of tribes as independent sovereigns. At the time of the
Revolutionary War, the native tribes established relations with the
United States on a government-to-government level through the execution
of treaties. Since the United States Constitution bestows treaty-making
power upon the president, the executive branch historically dominated
Indian affairs. The president's treaty-making power was terminated by
the legislature in 1871, but presidents have since used executive orders
liberally to establish Indian policy.
Today, the executive branch maintains an active role in Indian affairs,
through the immense administrative system that has evolved during this
century. The president's modern role includes three distinct components.
First, a figurehead perception, derived from the historic position of
the president in Indian affairs still exists. Presidential statements
establish the tone for national Indian policy. Former President Richard
M. Nixon, for example, is credited with reversing the decades of
assimilationist and domineering federal policy toward tribes by
announcing a new era of "self-determination" in which tribes would be
treated and supported in their efforts to gain tribal self-sufficiency.
Each succeeding administration has embraced this Indian policy,
including President Bill Clinton, who reaffirmed it on April 29, 1994,
when he issued his directive on dealing with Indian tribes.
President Clinton's 1994 directive sets the tone for his
administration's approach to Indian affairs. The directive calls upon
all federal agencies to assess the effect of their programs on tribes,
and to remove procedural impediments to working with tribes on matters
that affect tribal rights. Although the directive does much to restore
respect and understanding for the sovereignty of tribes, it falls
notably short of establishing any specific policy regarding the
fulfillment of the government's trust obligation toward tribes. Despite
this shortcoming, many agencies currently are seeking to define their
trust responsibility to tribes. Some agencies have issued policy
directives to deal with Indian issues in their programs. These policies
vary in their content and actual implementation.
The second aspect of the president's role has to do with his duties as
"trustee" of Indian lands and resources. Almost all Indian land is held
in trust by the United States, with the beneficiary interest residing in
the tribe or individual Indian allottee. The trust title gives a land
management role to the executive branch. The primary agency that is
responsible for implementing laws relating to Indians and their lands is
the Bureau of Indian Affairs (BIA), located within the Department of
Interior. Many laws, for example, have provided for substantial BIA
involvement in nearly all phases of timber, mineral, agricultural and
range resource development on Indian lands. In this era of tribal
self-determination, however, the president's role in managing tribal
resources and lands is slowly shrinking as more tribes gain control over
their own resources.
A third aspect of the executive branch role in Indian affairs involves
the administration of executive agency programs of general applicability
that affect native existence. For example, federal programs carried out
under general public land laws or environmental laws affect tribal lands
and resources. A host of activities such as timber, mining, oil and gas
production, hazardous waste disposal, and defense and energy operations
can affect the culture, economy and environment of host or nearby
reservations. The federal agencies themselves, such as the Department of
Energy, have or should have established relationships with the affected
Indian tribes to promote collaboration among all parties affected by
these actions.
The Legislative Branch
Congress has played a major role in the relationship between Indian
nations and the federal government. Indian tribes have been the subject
of more federal legislation than any other single group in the United
States. Some federal statutes represent good faith efforts by Congress
to deal honorably with Indians. Some federal laws, however, are
considered to be thinly disguised measures designed to appropriate
Indian lands and destroy tribal governments. Many acts have effectively
limited- directly or indirectly- the power of Indian tribes to exercise
their sovereign rights.
According to United States Supreme Court decisions, three provisions of
the United States Constitution- the Treaty Clause, the Indian Commerce
Clause and the Supremacy Clause--are the basis of Congress' power to
legislate Indian affairs. In the early years of the United States,
Congress relied on these provisions to justify treaty making, to
regulate trade with Indian tribes, and to maintain peace and protect
Indians and settlers. Later, Congress used the provisions to support
federal legislation that interfered with the internal affairs of tribes.
Tribal sovereign powers, therefore, have been subject to limitation by
treaties and by express congressional legislation.
Many tribes have challenged the right of Congress to intrude into tribal
governmental affairs, but the federal courts have upheld the right on
the basis of one of three rationales: (1) the political question
doctrine; (2) the guardian-ward relationship; or (3) the plenary power
of Congress. Political questions are those decided by the legislative or
executive branches of government rather than by the courts. Indian
issues are arguably political questions and therefore subject to
congressional action. The guardian-ward- or trust- relationship between
the federal government and the tribes is established in many federal
acts and treaties. The courts have interpreted this relationship as
imposing a duty on the United States to protect Indian tribes in certain
respects, as well as to regulate Indians "for their own protection."
Lastly, early court decisions held that Congress had plenary--full or
complete--power over Indian affairs. The U.S. Supreme Court, however,
has rejected the claim that congressional power in Indian affairs is
absolute and not reviewable. To the contrary, the Court has expressly
held that the exercise of federal power in Indian affairs is subject to
review under the Due Process and Just Compensation clauses of the
Constitution. To be valid, the congressional enactment also must be
rationally related to the trust responsibility. There remains, however,
a prevailing perception of absolute and plenary congressional power over
Indian affairs, both inside and outside of Congress.
The Judicial Branch
An immense body of Indian law has developed through the litigation of
particular disputes. Although the federal courts have interpreted both
Congress and the executive branch to have broad latitude in their powers
to deal with Indian tribes, they also have recognized the inherent
sovereignty of tribes and, therefore, the limitations on congressional
power. The main principle that has emerged from such cases is that
Indian tribes may exercise all their inherent powers unless Congress has
restricted the use of those powers.
The courts also have developed rules or canons for interpreting Indian
treaties and federal Indian laws. The courts have held, for instance,
that if ambiguities exist in treaty language, the treaties must be
resolved in favor of the Indians. Second, Indian treaties must be
interpreted as the Indians themselves would have understood them.
Finally, Indian treaties must be liberally construed in favor of the
Indians. This is certainly not an exclusive list of the judicial
precedents affecting Indians. Despite the volume of opinions, the
federal courts have interpreted Indian sovereignty more consistently
than either Congress or the executive branch.
Department of Energy-Tribal Relationship
In 1991, the Department of Energy (DOE) issued an American Indian policy
for the purpose of formalizing government-to-government relationships
between the DOE and the tribes. The establishment and maintenance of
such relationships are necessary to ensure that tribal rights and
concerns are considered before any DOE action is undertaken. The first
point in the policy states that the department shall "[r]ecognize and
commit to a government-to-government relationship with American Indian
Tribal governments." The third point further requires the department to
"[c]onsult with Tribal governments to assure that Tribal rights and
concerns are considered prior to DOE taking actions, making decisions,
or implementing programs that may affect Tribes."
Recognition of and commitment to a government-to-government relationship
is realized as a practical matter through shared decision-making
responsibility. Similarly, tribal sovereignty includes the inherent
authority of tribes to deal with environmental issues that affect
reservations. In the context of tribal rights and concerns regarding the
cleanup of nuclear weapons facilities, this means that tribes are,
effectively, partners with other governments in making any decisions
that affect reservation property, off-reservation rights, or other
tribal values. This partnership goes beyond the right of comment and
consultation--it compels inclusion of the tribes as sovereign
governments in making decisions that affect tribal sovereignty.
An understanding of tribal sovereignty and the importance of
government-to-government relationship is crucial to an effective
partnership between the tribes and the Department of Energy. We
recommend that DOE commit to maintaining communicative relationships
with all affected Indian tribes for these purposes.
Appendix A
U.S. Department of Energy American Indian Policy (Reprinted with DOE
explanations added)
Purpose
This policy outlines the principles to be followed by the Department of
Energy (DOE) in its interactions with federally-recognized American
Indian tribes. It is based on federal policy, treaties, federal law and
the DOE's responsibilities as a federal agency to ensure that tribal
rights and interests are identified and considered in pertinent
decision-making. The policy provides general guidance to DOE personnel
for management actions affecting American Indians and emphasizes
implementation of such activities in a knowledgeable and sensitive
manner. This policy does not affect DOE interactions with
state-recognized tribes with respect to matters provided for by statute
or regulation.
Background
American Indian tribal governments have a special and unique legal and
political relationship with the government of the United States, defined
by history, treaties, statutes, court decisions, and the U.S.
Constitution. The United States has entered into more than 600 treaties
and agreements with American Indian tribes. These treaties and
agreements create a variety of legal responsibilities by the United
States toward American Indian tribes and provide the basis for a
government-to-government relationship. Other responsibilities toward
American Indians are created by Congress through statutory enactments.
Although the Department of Interior, through the Bureau of Indian
Affairs, has the principal responsibility for upholding obligations of
the federal government to American Indians, this responsibility extends
to all federal agencies.
Policy
1. The Department recognizes and commits to a government-to-government
relationship with American Indian tribal governments.
DOE recognizes tribal governments as sovereign entities with, in most
cases, primary responsibility for Indian country. In keeping with the
principle of American Indian self-government, the Department will view
tribal governments as the appropriate non-federal parties for making
decisions affecting Indian country, its energy resources and
environments, and the health and welfare of its populace. The Department
will recognize the right of each tribe to set its own priorities and
goals in developing and managing its energy resources. The Department
recognizes that some tribes have treaty-protected interests in resources
outside reservation boundaries.
2. DOE recognizes that a trust relationship derives from the historical
relationship between the federal government and American Indian tribes
as expressed in certain treaties and federal Indian law.
In keeping with the trust relationship, the DOE will consult with tribal
governments regarding the impact of DOE activities on the energy,
environmental and natural resources of American Indian tribes when
carrying out its responsibilities.
3. The Department will consult with tribal governments to assure that
tribal rights and concerns are considered prior to DOE taking actions,
making decisions or implementing programs that may affect tribes.
The DOE will take a proactive approach to solicit input from tribal
governments on departmental policies and issues. The Department will
encourage tribal governments and their members to participate fully in
the national and regional dialogues concerning departmental programs and
issues.
4. Consistent with federal cultural resource laws and the American
Indian Religious Freedom Act (P.L. 95-341), each field office or DOE
installation with areas of cultural or religious concern to American
Indians will consult with them about the potential impacts of proposed
DOE actions on those resources and will avoid unnecessary interference
with traditional religious practices.
DOE will comply with all cultural resource legislation and implementing
regulations in the management and operation of its programs and
facilities. Consultation with appropriate American Indian tribal
governments is part of the compliance process involving federal cultural
resource laws and the American Indian Religious Freedom Act.
Consultation may include, but is not limited to (1) the exchange of
information concerning the location and management of cultural
resources, (2) repatriation or other disposition of objects and human
remains, (3) access to sacred areas and traditional resources located on
DOE lands in accordance with safety, health and national security
considerations, and (4) assessment of potential community impacts.
5. The Department will identify and seek to remove impediments to
working directly and effectively with tribal governments on DOE
programs.
DOE recognizes that there may be regulatory, statutory and/or procedural
impediments which limit or restrict our ability to work effectively and
consistently with tribes. In keeping with this policy, we will seek to
remove any such impediments. Additionally, we will, to the maximum
extent permitted by law, apply existing statutory, regulatory and
procedural requirements in a manner that furthers the goals of this
policy.
6. The Department will work with other federal and state agencies that
have related responsibilities to clarify the roles, responsibilities and
relationships of our respective organizations as they relate to tribal
matters.
DOE will seek and promote cooperation with other agencies that have
related responsibilities. In many areas of concern to DOE, cooperation
and mutual consideration among neighboring governments (federal, state,
tribal and local) is essential. Accordingly, DOE will encourage early
communication and cooperation among all governmental parties. This
recognizes that the principle of comity among equals and neighbors often
serves the best interests of all parties.
7. The Department will incorporate this policy into its ongoing and
long-term planning and management processes.
It is key to this effort to ensure that the principles of this policy
are effectively institutionalized by incorporating them into the
Department's ongoing and long-term planning and management processes.
Department managers will include specific programmatic actions in
Departmental program planning and activities.
Appendix B
Definitions
American Indian/Native American: Whether a person is considered an
"Indian" for purposes of relating to the federal government depends upon
what context or under what law the person is being considered by the
government. Generally, determining whether a person is an Indian for
legal purposes will depend on (1) the degree of Indian blood, and (2)
tribal or governmental recognition as an Indian. The ethnological
(racial) definition of an Indian is a person with at least 50 percent
Indian blood. Some people that fit in neither category still may
consider themselves an American Indian.
Indian Country: Federal statute defines Indian country as, except as
otherwise provided, (a) all land within the limits of any Indian
reservation under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation; (b) all dependent Indian communities
within the borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state; and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same (18 U.S.C. section 1151). In other words, Indian
country is all the land under the supervision of the United States
government that has been set aside for the use of Indians--reservations,
Indian trust land and dependent Indian communities.
Indian Tribe/Nation: The federal government has "recognized" less than
300 of the more than 400 tribes that claim to exist. Federal recognition
generally means that Congress or the president has created a reservation
for the tribe, and the United States has some continuing political
relationship with the tribe. Federal courts have held, however, that
federal recognition is not dispositive as to whether a tribe exists, and
have adopted various definitions dependent both upon internal aspects of
the group in question, and upon relationships and perceptions of the
group in the dominant society. The ethnological definition of a tribe is
simply a group of Indians that share a common heritage and speak a
distinct language.
Indian Reservation: Land that has been set aside by the federal
government--usually through a treaty, presidential order, or act of
Congress--for the use, possession, and benefit of an Indian tribe.
The three branches of the federal government have formally acknowledged
tribal sovereignty during two centuries of treaties, executive actions,
legislation and judicial opinions. As a practical matter, however, the
United States has been inconsistent in its recognition of tribal
sovereignty, combining the concepts of international law, unfounded
contentions that Indian affairs fall- under domestic laws of the United
States and the changing social, political and morals of policymakers.
The United States, since its birth, has had a variety of fundamental
policies, or "eras," of Indian policy. Several periods of tribal
"status," as defined and practiced by the dominant society, are as
follows:
?? - 1787 Tribal Independence: The geographic area that is now known as
the United States was inhabited by independent, self-contained Indian
tribes. 1787 - 1828 Trade and Intercourse Acts: In addition to the
federal/tribal treaties that were signed starting in this period, the
federal goal was apparently to permeate the area of Indian affairs with
federal law. 1828 - 1887 Relocation of Indians: The Indian Removal Act
of 1830 forced eastern tribes to move west of the Mississippi; and the
gold rush in the 1840s displaced Indians in the west and forced them to
accept life on reservations often defined by the federal government.
Many Indians at this time became increasingly dependent upon the federal
government. 1887 - 1934 Allotment and Assimilation: With the passage of
the General Allotment Act of 1887, the federal government sought to
abolish tribes and assimilate Indians into the dominant society. The
government established a variety of programs to accomplish this,
including the break up of communally-held tribal lands and the allotment
of parcels to individual tribal members in the hope that they would
become farmers. 1934 - 1953 Indian Reorganization: In a reversal from
the previous era, the Indian Reorganization Act of 1934 prohibited
further allotment of tribal lands to individual Indians, and sought to
restore and increase tribal land holdings. The federal government at
this time attempted to help tribes become independent. 1953 - 1968
Termination: Congress abandoned reorganization goals and terminated many
federal benefits and support services for tribal members. 1968 -
Present Tribal Self-Determination: Then-President Johnson denounced the
termination policy and declared that tribal autonomy would once again be
promoted.
In addition to the current era of Indian policy, the methods used by
each branch of the federal government--the president and his executive
office, the Congress, and the federal courts--to address tribal issues
define the overall relationship that tribes have with the federal
government.
The Executive Branch
For more than 200 years, U.S. presidents and executive agencies have
assumed primary responsibility for establishing relationships between
the federal government and Indian tribes, and for ensuring the
implementation of congressional legislation related to Indian affairs.
Historically, this assumption of responsibility was a result of the
nature of tribes as independent sovereigns. At the time of the
Revolutionary War, the native tribes established relations with the
United States on a government-to-government level through the execution
of treaties. Since the United States Constitution bestows treaty-making
power upon the president, the executive branch historically dominated
Indian affairs. The president's treaty-making power was terminated by
the legislature in 1871, but presidents have since used executive orders
liberally to establish Indian policy.
Today, the executive branch maintains an active role in Indian affairs,
through the immense administrative system that has evolved during this
century. The president's modern role includes three distinct components.
First, a figurehead perception, derived from the historic position of
the president in Indian affairs still exists. Presidential statements
establish the tone for national Indian policy. Former President Richard
M. Nixon, for example, is credited with reversing the decades of
assimilationist and domineering federal policy toward tribes by
announcing a new era of "self-determination" in which tribes would be
treated and supported in their efforts to gain tribal self-sufficiency.
Each succeeding administration has embraced this Indian policy,
including President Bill Clinton, who reaffirmed it on April 29, 1994,
when he issued his directive on dealing with Indian tribes.
President Clinton's 1994 directive sets the tone for his
administration's approach to Indian affairs. The directive calls upon
all federal agencies to assess the effect of their programs on tribes,
and to remove procedural impediments to working with tribes on matters
that affect tribal rights. Although the directive does much to restore
respect and understanding for the sovereignty of tribes, it falls
notably short of establishing any specific policy regarding the
fulfillment of the government's trust obligation toward tribes. Despite
this shortcoming, many agencies currently are seeking to define their
trust responsibility to tribes. Some agencies have issued policy
directives to deal with Indian issues in their programs. These policies
vary in their content and actual implementation.
The second aspect of the president's role has to do with his duties as
"trustee" of Indian lands and resources. Almost all Indian land is held
in trust by the United States, with the beneficiary interest residing in
the tribe or individual Indian allottee. The trust title gives a land
management role to the executive branch. The primary agency that is
responsible for implementing laws relating to Indians and their lands is
the Bureau of Indian Affairs (BIA), located within the Department of
Interior. Many laws, for example, have provided for substantial BIA
involvement in nearly all phases of timber, mineral, agricultural and
range resource development on Indian lands. In this era of tribal
self-determination, however, the president's role in managing tribal
resources and lands is slowly shrinking as more tribes gain control over
their own resources.
A third aspect of the executive branch role in Indian affairs involves
the administration of executive agency programs of general applicability
that affect native existence. For example, federal programs carried out
under general public land laws or environmental laws affect tribal lands
and resources. A host of activities such as timber, mining, oil and gas
production, hazardous waste disposal, and defense and energy operations
can affect the culture, economy and environment of host or nearby
reservations. The federal agencies themselves, such as the Department of
Energy, have or should have established relationships with the affected
Indian tribes to promote collaboration among all parties affected by
these actions.
The Legislative Branch
Congress has played a major role in the relationship between Indian
nations and the federal government. Indian tribes have been the subject
of more federal legislation than any other single group in the United
States. Some federal statutes represent good faith efforts by Congress
to deal honorably with Indians. Some federal laws, however, are
considered to be thinly disguised measures designed to appropriate
Indian lands and destroy tribal governments. Many acts have effectively
limited- directly or indirectly- the power of Indian tribes to exercise
their sovereign rights.
According to United States Supreme Court decisions, three provisions of
the United States Constitution- the Treaty Clause, the Indian Commerce
Clause and the Supremacy Clause--are the basis of Congress' power to
legislate Indian affairs. In the early years of the United States,
Congress relied on these provisions to justify treaty making, to
regulate trade with Indian tribes, and to maintain peace and protect
Indians and settlers. Later, Congress used the provisions to support
federal legislation that interfered with the internal affairs of tribes.
Tribal sovereign powers, therefore, have been subject to limitation by
treaties and by express congressional legislation.
Many tribes have challenged the right of Congress to intrude into tribal
governmental affairs, but the federal courts have upheld the right on
the basis of one of three rationales: (1) the political question
doctrine; (2) the guardian-ward relationship; or (3) the plenary power
of Congress. Political questions are those decided by the legislative or
executive branches of government rather than by the courts. Indian
issues are arguably political questions and therefore subject to
congressional action. The guardian-ward- or trust- relationship between
the federal government and the tribes is established in many federal
acts and treaties. The courts have interpreted this relationship as
imposing a duty on the United States to protect Indian tribes in certain
respects, as well as to regulate Indians "for their own protection."
Lastly, early court decisions held that Congress had plenary--full or
complete--power over Indian affairs. The U.S. Supreme Court, however,
has rejected the claim that congressional power in Indian affairs is
absolute and not reviewable. To the contrary, the Court has expressly
held that the exercise of federal power in Indian affairs is subject to
review under the Due Process and Just Compensation clauses of the
Constitution. To be valid, the congressional enactment also must be
rationally related to the trust responsibility. There remains, however,
a prevailing perception of absolute and plenary congressional power over
Indian affairs, both inside and outside of Congress.
The Judicial Branch
An immense body of Indian law has developed through the litigation of
particular disputes. Although the federal courts have interpreted both
Congress and the executive branch to have broad latitude in their powers
to deal with Indian tribes, they also have recognized the inherent
sovereignty of tribes and, therefore, the limitations on congressional
power. The main principle that has emerged from such cases is that
Indian tribes may exercise all their inherent powers unless Congress has
restricted the use of those powers.
The courts also have developed rules or canons for interpreting Indian
treaties and federal Indian laws. The courts have held, for instance,
that if ambiguities exist in treaty language, the treaties must be
resolved in favor of the Indians. Second, Indian treaties must be
interpreted as the Indians themselves would have understood them.
Finally, Indian treaties must be liberally construed in favor of the
Indians. This is certainly not an exclusive list of the judicial
precedents affecting Indians. Despite the volume of opinions, the
federal courts have interpreted Indian sovereignty more consistently
than either Congress or the executive branch.
Department of Energy-Tribal Relationship
In 1991, the Department of Energy (DOE) issued an American Indian policy
for the purpose of formalizing government-to-government relationships
between the DOE and the tribes. The establishment and maintenance of
such relationships are necessary to ensure that tribal rights and
concerns are considered before any DOE action is undertaken. The first
point in the policy states that the department shall "[r]ecognize and
commit to a government-to-government relationship with American Indian
Tribal governments." The third point further requires the department to
"[c]onsult with Tribal governments to assure that Tribal rights and
concerns are considered prior to DOE taking actions, making decisions,
or implementing programs that may affect Tribes."
Recognition of and commitment to a government-to-government relationship
is realized as a practical matter through shared decision-making
responsibility. Similarly, tribal sovereignty includes the inherent
authority of tribes to deal with environmental issues that affect
reservations. In the context of tribal rights and concerns regarding the
cleanup of nuclear weapons facilities, this means that tribes are,
effectively, partners with other governments in making any decisions
that affect reservation property, off-reservation rights, or other
tribal values. This partnership goes beyond the right of comment and
consultation--it compels inclusion of the tribes as sovereign
governments in making decisions that affect tribal sovereignty.
An understanding of tribal sovereignty and the importance of
government-to-government relationship is crucial to an effective
partnership between the tribes and the Department of Energy. We
recommend that DOE commit to maintaining communicative relationships
with all affected Indian tribes for these purposes.
Appendix A
U.S. Department of Energy American Indian Policy (Reprinted with DOE
explanations added)
Purpose
This policy outlines the principles to be followed by the Department of
Energy (DOE) in its interactions with federally-recognized American
Indian tribes. It is based on federal policy, treaties, federal law and
the DOE's responsibilities as a federal agency to ensure that tribal
rights and interests are identified and considered in pertinent
decision-making. The policy provides general guidance to DOE personnel
for management actions affecting American Indians and emphasizes
implementation of such activities in a knowledgeable and sensitive
manner. This policy does not affect DOE interactions with
state-recognized tribes with respect to matters provided for by statute
or regulation.
Background
American Indian tribal governments have a special and unique legal and
political relationship with the government of the United States, defined
by history, treaties, statutes, court decisions, and the U.S.
Constitution. The United States has entered into more than 600 treaties
and agreements with American Indian tribes. These treaties and
agreements create a variety of legal responsibilities by the United
States toward American Indian tribes and provide the basis for a
government-to-government relationship. Other responsibilities toward
American Indians are created by Congress through statutory enactments.
Although the Department of Interior, through the Bureau of Indian
Affairs, has the principal responsibility for upholding obligations of
the federal government to American Indians, this responsibility extends
to all federal agencies.
Policy
1. The Department recognizes and commits to a government-to-government
relationship with American Indian tribal governments.
DOE recognizes tribal governments as sovereign entities with, in most
cases, primary responsibility for Indian country. In keeping with the
principle of American Indian self-government, the Department will view
tribal governments as the appropriate non-federal parties for making
decisions affecting Indian country, its energy resources and
environments, and the health and welfare of its populace. The Department
will recognize the right of each tribe to set its own priorities and
goals in developing and managing its energy resources. The Department
recognizes that some tribes have treaty-protected interests in resources
outside reservation boundaries.
2. DOE recognizes that a trust relationship derives from the historical
relationship between the federal government and American Indian tribes
as expressed in certain treaties and federal Indian law.
In keeping with the trust relationship, the DOE will consult with tribal
governments regarding the impact of DOE activities on the energy,
environmental and natural resources of American Indian tribes when
carrying out its responsibilities.
3. The Department will consult with tribal governments to assure that
tribal rights and concerns are considered prior to DOE taking actions,
making decisions or implementing programs that may affect tribes.
The DOE will take a proactive approach to solicit input from tribal
governments on departmental policies and issues. The Department will
encourage tribal governments and their members to participate fully in
the national and regional dialogues concerning departmental programs and
issues.
4. Consistent with federal cultural resource laws and the American
Indian Religious Freedom Act (P.L. 95-341), each field office or DOE
installation with areas of cultural or religious concern to American
Indians will consult with them about the potential impacts of proposed
DOE actions on those resources and will avoid unnecessary interference
with traditional religious practices.
DOE will comply with all cultural resource legislation and implementing
regulations in the management and operation of its programs and
facilities. Consultation with appropriate American Indian tribal
governments is part of the compliance process involving federal cultural
resource laws and the American Indian Religious Freedom Act.
Consultation may include, but is not limited to (1) the exchange of
information concerning the location and management of cultural
resources, (2) repatriation or other disposition of objects and human
remains, (3) access to sacred areas and traditional resources located on
DOE lands in accordance with safety, health and national security
considerations, and (4) assessment of potential community impacts.
5. The Department will identify and seek to remove impediments to
working directly and effectively with tribal governments on DOE
programs.
DOE recognizes that there may be regulatory, statutory and/or procedural
impediments which limit or restrict our ability to work effectively and
consistently with tribes. In keeping with this policy, we will seek to
remove any such impediments. Additionally, we will, to the maximum
extent permitted by law, apply existing statutory, regulatory and
procedural requirements in a manner that furthers the goals of this
policy.
6. The Department will work with other federal and state agencies that
have related responsibilities to clarify the roles, responsibilities and
relationships of our respective organizations as they relate to tribal
matters.
DOE will seek and promote cooperation with other agencies that have
related responsibilities. In many areas of concern to DOE, cooperation
and mutual consideration among neighboring governments (federal, state,
tribal and local) is essential. Accordingly, DOE will encourage early
communication and cooperation among all governmental parties. This
recognizes that the principle of comity among equals and neighbors often
serves the best interests of all parties.
7. The Department will incorporate this policy into its ongoing and
long-term planning and management processes.
It is key to this effort to ensure that the principles of this policy
are effectively institutionalized by incorporating them into the
Department's ongoing and long-term planning and management processes.
Department managers will include specific programmatic actions in
Departmental program planning and activities.
Appendix B
Definitions
American Indian/Native American: Whether a person is considered an
"Indian" for purposes of relating to the federal government depends upon
what context or under what law the person is being considered by the
government. Generally, determining whether a person is an Indian for
legal purposes will depend on (1) the degree of Indian blood, and (2)
tribal or governmental recognition as an Indian. The ethnological
(racial) definition of an Indian is a person with at least 50 percent
Indian blood. Some people that fit in neither category still may
consider themselves an American Indian.
Indian Country: Federal statute defines Indian country as, except as
otherwise provided, (a) all land within the limits of any Indian
reservation under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation; (b) all dependent Indian communities
within the borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state; and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same (18 U.S.C. section 1151). In other words, Indian
country is all the land under the supervision of the United States
government that has been set aside for the use of Indians--reservations,
Indian trust land and dependent Indian communities.
Indian Tribe/Nation: The federal government has "recognized" less than
300 of the more than 400 tribes that claim to exist. Federal recognition
generally means that Congress or the president has created a reservation
for the tribe, and the United States has some continuing political
relationship with the tribe. Federal courts have held, however, that
federal recognition is not dispositive as to whether a tribe exists, and
have adopted various definitions dependent both upon internal aspects of
the group in question, and upon relationships and perceptions of the
group in the dominant society. The ethnological definition of a tribe is
simply a group of Indians that share a common heritage and speak a
distinct language.
Indian Reservation: Land that has been set aside by the federal
government--usually through a treaty, presidential order, or act of
Congress--for the use, possession, and benefit of an Indian tribe.