Progress in Strengthening Our Government-to-Government Relationship with Tribal Nations

By: JoAnn Chase and Ethan Shenkman

EPA has long honored tribal rights to sovereignty, self-governance and self-determination. These principles are enshrined in EPA’s Indian Policy, signed by Administrator Ruckelshaus in 1984 and reaffirmed by every EPA Administrator since. Thanks to the unique partnership between our offices — EPA’s American Indian Environmental Office (AIEO) and EPA’s Indian law team in the Office of General Counsel — we have made great strides in bringing these principles to life and weaving them into the very fabric of this agency.

One important example is our work to ensure tribal nations have the tools they need to protect waters on Indian lands. Under the Clean Water Act, tribes may apply to EPA for the ability to administer certain regulatory programs on their reservations, just as states do. To date, over 50 tribes have used this special status to issue their own water quality standards under the Act. We worked closely with the Office of Water to streamline and simplify the process for tribes wishing to apply for this status, so that more tribes can take advantage of these opportunities. In addition, we worked together to expand the scope of authorities that tribes can assume by providing a new pathway for tribes to engage in water quality restoration. Tribes who take advantage of these new authorities will be able to issue lists of impaired waters and develop “total maximum daily loads” (TMDLs) for those waters – critical regulatory tools for ensuring the protection of their waters, and the ecosystems and communities who depend on them.

EPA has also made tremendous strides under this Administration in living up to the ideals of true government-to-government consultation with tribal nations. In 2009, President Obama issued a Memorandum directing federal agencies to develop a plan for implementing the tribal consultation obligation in Executive Order 13175. In 2011, we issued the Policy on Consultation and Coordination with Indian Tribes, which sets a very high bar for ensuring meaningful, government-to-government consultation on EPA actions that affect tribal interests.

When we consulted with tribal leaders across the country, we listened, and we learned. It became clear that we needed to do more to ensure that we consistently consider tribal treaty rights when making decisions that may affect tribal natural resources. We recognize that treaties between the United States and tribal nations are the Supreme Law of the land, and that we have a solemn obligation to ensure that our decisions do not compromise those commitments. As a result, with terrific input from tribal nations, in February 2016, we issued a groundbreaking Treaty Rights Guidance as a supplement to our tribal consultation policy.

The new guidance ensures that EPA staff will engage in a critical inquiry with tribes about treaty rights (and similar federally-protected reserved rights) when the agency is making decisions focused on specific geographic areas where tribal hunting, fishing and gathering rights may exist. Under the guidance, EPA will “consider all relevant information obtained to help ensure that EPA’s actions do not conflict with treaty rights, and to help ensure that EPA is fully informed when it seeks to implement its programs and to further protect treaty rights and resources when it has discretion to do so.”

EPA’s treaty rights guidance was well received by our tribal partners. The White House Council on Native American Affairs was then asked by tribes to consider embracing the concept more broadly. As a result of conversations that we at EPA had with our federal partners, in September 2016 we signed an interagency Memorandum of Understanding (MOU) to improve coordination and collaboration in the protection of treaty rights and similar tribal rights. We are delighted that nine agencies have thus far signed on to the MOU, most at the Secretarial level, and EPA and the Department of Agriculture are co-chairing a working group to implement this commitment moving forward.

These are but a few examples of the tremendous progress we have made in strengthening EPA’s government-to-government relationship with tribal nations – progress that is owed to the outstanding dedication and talents of the employees of our respective offices, and to the steadfast support of EPA’s Administrator and senior leadership. Nor could this progress have occurred without the close collaboration and partnership of our tribal counterparts. We are grateful for the opportunity to have served our shared mission of protecting human health and the environment for the benefit of future generations.