Welcome to the Native American Resources Committee homepage. The Committee serves as the Section’s primary forum for discussing issues affecting federally recognized tribes, Native Americans, and other indigenous peoples related to the environment, resources, energy, and their lands. While our members engage in the full gamut of issues affecting Indian nations, the environment, and resource development, from tribal environmental programs to how such development affects sacred places and religious freedom, our 2010-2011 Action Plan focuses on the following current and emerging issues:

            1.         Global Warming and Climate Change. Such issues include, but are not limited to renewable and alternative energy projects on and near Indian country and Alaska Native villages; energy efficiency; adaptive actions to minimize the impacts of actual or expected climate change; the need to reduce fossil fuel utilization and increase the development and use of renewable resources; cap and trade; carbon sequestration; impacts on endangered species; and environmental justice issues including the relocation of Alaska Native villages, erosion, and impacts on cultural and subsistence practices and treaty rights.

Climate change is an issue of global concern and a strategic emphasis for the Section as a whole. Dealing with global warming effectively and justly requires collaborative action by all levels of government—federal, tribal, state, and local. The Committee will promote discussions regarding inclusion of tribal governments in federal, state, and local government initiatives. In addition to the kinds of concerns that other levels of government have, climate change raises environmental justice issues as it has the potential to affect disproportionately tribal communities, particularly Alaska Native villages, as well as other indigenous peoples including Native Hawaiians. Tribes and other indigenous peoples often depend on natural resources for the exercise of cultural, traditional, and subsistence rights and economic well being. Tribal lands also present unique opportunities and challenges for the development of renewable energy, cap and trade, and carbon sequestration. The exigency and structure of economic stimulus energy funding presents potential issues regarding proprietary, commercial, and regulatory control of such energy projects within Indian country.

      2.         Environmental Protection and Federal Regulatory and Permitting Programs in Indian Country. Such issues include, but are not limited to the treatment of federally recognized tribes as states under federal environmental programs; direct implementation of federal environmental programs; EPA Indian policies and executive orders; tribal environmental regulatory programs; tribal programs in the framework of the National Historic Preservation Act; Endangered Species Act; brownfields revitalization; development of tribal environmental policy acts; and potential changes in Clean Water Act and Clean Air Act regulatory requirements affecting Indian country. Issues also include the sometimes adverse and inequitable effect of federal regulatory and permitting programs on tribal economic development and tensions with the federal trust responsibility.

There are some 565 federally recognized tribes in the United States, including 229 Alaska native villages and entities. Indian country, which includes reservations, dependent Indian communities, and Indian allotments, comprises about 53 million acres of land, and contains much of the Nation’s renewable and remaining non-renewable resources. Ongoing development of tribal environmental protection programs as well as the engagement of tribes in direct implementation by the USEPA of federal environmental laws in Indian country is therefore a growing and unique area of law for section members. Many tribes are becoming part of the development of alternative energy technologies in order to better serve their reservations and as part of their economic development strategies. Past legislation such as the “Indian Energy” title of the 2005 Energy Policy Act, has offered tribes and industry opportunities to develop tribal natural resources and to engage in national energy policy. The 111th Congress is considering a number of clean energy bills that could help equalize tax treatment for tribal projects and provide further opportunities for tribes and Indian country. Tribes also are exerting more tribal control over regulating reservation resource development, including environmental review pursuant to tribal law rather than NEPA.

      3.         Environmental Justice in Indian Country. Such issues include, but are not limited to economic paternalism arising from insufficient funding to support sustainable and environmentally safe forms of economic development; the effect of federal policies and practices promoting natural resource development on Indian lands that are significant sources of pollution in tribal communities; lack of effective environmental regulation and protection in Indian country due to gaps in the federal environmental regulatory scheme, statutory barriers, and lack of funding and technical support for tribal programs; lack of a complete inventory of hazardous waste sites in Indian country and Alaska Native villages and mandated clean up of these sites; and the potential for special environmental harms and substantial detrimental health impacts to tribal members due to their traditional lifeways and dependence on subsistence fishing, hunting, and gathering.

      The environmental justice movement, which merges civil rights and environmental protection, has evolved into a recognized social movement over the last several decades. However, tribes and their members suffer from very different types of environmental injustices, which may arise from very different circumstances. Though tribes, as well as people of color and low-income communities, are very often more susceptible to pollution due to lack of access to health care, poverty, subsistence and cultural activities, and even genetics, environmental justice issues affecting tribes must be considered against the backdrop of tribal sovereignty, the federal trust responsibility to tribes, the special jurisdictional rules applicable to Indian country, the government-to-government relationship, and treaty rights. Alaska Native villages face even further challenges due to the status of their lands and differences in their ability to participate under some federal laws. A major injustice continues to be the utter inadequacy of federal funding for tribal environmental programs in light of the billons of dollars spent to support state environmental programs over the last three decades. The Gulf oil spill raises new concerns for impacted state-recognized Native American tribes—there are 10 such tribes in Louisiana alone—who lack federal recognition and do not receive services otherwise available to federally recognized tribes. Nevertheless, several of these tribes are facing a plethora of problems from the oil spill disaster.

      4.         Native American Interests in Off-Reservation Resources and Activities. Such issuesinclude, but are not limited to roles of federal, tribal, and state governments with respect off-reservation areas and joint use areas; off-reservation protection of sacred sites and cultural use areas; repatriation; tribal consultation rights and issues; impairment of off-reservation treaty rights to hunt, fish, and gather including fish consumption and subsistence issues; on-reservation impacts from off-reservation activities; and split-estate issues with respect to certain types of resources such as coalbed methane or the location of resources both on and adjacent to Indian reservations.

      The procedural and substantive rights of tribes outside of reservation boundaries have implications for Section members, particularly those whose practice involves federal public lands and tribal representation. In 2009, the United States Supreme Court’s refusal to hear or comment in Navajo Nation v. United States Forest Service has left tribes with no clear standard within the current legal system for protecting Indian religious and cultural practices from government actions. If tribes now turn to political processes, it is unclear what implications might result for how federal agencies manage federal lands and resources.

The Committee will encourage dialogue on these issues through its newsletter, publications of the Section of Environment, Energy, and Resources, list serve, presentations at ABA meetings, quick teleconferences, and other means. We have an ambitious agenda this year and could use your help. Please join us as we explore the myriad of issues facing tribes and Indian country in the 21st Century.

Jana L. Walker
Donald M. Clary

The Native American Resource Committee has the following positions and responsibilities.

Co-Chairs: Jana L. Walker and Donald M. Clary are Co-Chairs of the Committee, providing leadership, direction and primary interaction with other ABA Sections. They are in practice in Albuquerque, New Mexico and LaCanada Flintridge, California, respectively, with Donald M. Clary, Attorney at Law  and Stetson Law Offices, P.C.

Committee Newsletter: Catherine O'Neill, Professor at the Seattle University School of Law, and Timothy J. Humphrey, Sr., also with the Stetson Law Offices in Albuquerque, are vice-chairs with responsibility for the Committee Newsletter. The Committee newsletter is an excellent source of information, and will keep you informed of the latest Committee events and provide valuable analysis and insight on issues of concern to our members. If you are interested in submitting an article for publication in the newsletter, or have issues you would like to see addressed, please contact Ms. O’Neill. The current and past issues are linked on this page.

Membership: Kimberly Craven (Sisseton-Wahpeton Oyate) with the National Renewable Energy Laboratory in Golden, Colorado is vice-chair with responsibility for membership. The Committee is always looking for ways to best serve its members by coordinating the programs and efforts described above and by helping our members get involved in Committee activities. In addition, we hope to continue attracting new members to help maintain our diverse membership. If you have ideas about how to better serve our membership or recruit new members, please contact Ms. Craven.

Public Service: Jane Gardner, Senior Counsel/Strategic Advisor with General Electric Company in Boulder, Colorado is vice-chair with responsibility for public service. The Committee is interested in implementing a public service program. We welcome your suggestions on a suitable program for the Committee to become involved in.

Technology: Brian Nichols with Modrall Sperling in Albuquerque, New Mexico and Robert J. Miller, Professor of Law (Eastern Shawnee) with Lewis & Clark Law School in Portland, Oregon 97219 are vice-chairs with responsibility for technology, including this website. Professor Miller also provides leadership in Law Student Outreach.

The Year in Review: Klint Austin Cowan with Hobbs, Straus, Dean & Walker LLP in Oklahoma City, Oklahoma is vice-chair with responsibility for The Year in Review.

Programs: Todd J. Araujo  (Wampanoag Tribe of Gay Head (Aquinnah) with the Araujo Law Firm, LLC in Juneau, Alaska and Dean B. Suagee (Cherokee) with Hobbs Straus Dean & Walker, LLP in Washington, D.C. are vice-chairs with responsibility for programs. We are working on developing national teleconferences and other programs on subjects that are most important to our members. Times and locations will be announced in the newsletter, via the list serve, and on this web site.

The Committee has additional vice-chair with responsibility for areas of their expertise. These include Robert Gruenig with the National Tribal Environmental Council in Albuquerque, New Mexico, with expertise in Climate Change and Energy Issues and Bidtah N. Becker (Navajo) with the Navajo Nation Department of Justice in Window Rock, Arizona, with expertise in Indian Water Rights Issues.

On November 5-6, 2009 at the Hyatt Regency in Denver, Colorado, the ABA Section of Environment, Energy, and Resources is offering a conference focused on policy and enforcement developments in U.S. EPA Region 8, which consists of the states of Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, and 27 tribal nations.  Among the many topics offered at the conference, will be review of Tribal Environmental Policy Developments. 

Additional information is available at: http://www.abanet.org/environ/programs/reg8/2009/

EPA’s Administrator Jackson has reaffirmed its recognition that the United States has a unique legal relationship with tribal governments based on the Constitution, treaties, statutes, Executive Orders and court decisions.  The reaffirmation letter notes that EPA recognizes the right of tribes as sovereign governments to self-determination and acknowledges the federal government’s trust responsibility to tribes.  EPA also noted it will work with tribes on a government-to-government basis to protect the land, air and water in Indian Country.

Additional information on EPA’s Indian Policy and a copy of the July 22, 2009 Reaffirmation is available at: http://www.epa.gov/tribalportal/basicinfo/epa-policies.htm

Excerpted from article by Brian Nichols, Modrall Sperling

In two recent decisions, the state and federal courts in New Mexico have developed different tests to determine whether land is "Indian country."  The two tests have led to different results.  In the first case, the New Mexico Supreme Court determined that land adjacent to two New Mexico Indian Pueblos was not Indian country.  State v. Quintana (2008-NMSC-012, 143 N.M. 535, 178 P.3d 820).  By contrast, the Tenth Circuit Court of Appeals, which includes New Mexico, determined that land within the Navajo Church Rock Chapter but six miles from the Chapter House was Indian country.  HRI Inc. v. EPA (562 F.3d 1249, No. 07-9506 (10th Cir. 2009)). 

The United States Supreme Court set forth a test for determining whether a parcel of land is a "dependent Indian community" in a case originating in Alaska.  Alaska v. Native Village of Venetie Tribal Government.  Under Venetie, land is a dependent Indian community, and thus Indian country, if it was "set aside by the Federal Government for the use of the Indians as Indian land [and is] under federal superintendence."  In 2002, the New Mexico Supreme Court determined it would apply this test without embellishment.  That is, New Mexico looks only at the title to the land on which an act occurred or will occur and determines whether this land was set aside for use by Indians and is supervised by the federal government.  This test was applied in Quintana.  However, the Tenth Circuit Court of Appeals applies the Venetie test after determining a "community of reference."  As applied this year in HRI, the Tenth Circuit follows a "three-step procedure" to determine the community of reference.  First, it identifies "the geographical definition of the area proposed as a community."  Second, it analyzes "the status of the area in question as a community."  Third, it considers "that locale or ‘community of reference' within the context of the surrounding area."

The community of reference analysis used by the Tenth Circuit Court is problematic.  Employing it, a court may apply the Venetie test to land, and people, miles away from the land at issue.  By creating confusion about what governmental authorities have jurisdiction over land, it creates uncertainty, delay and expense.  It is an analysis more appropriate to decide whether land should be set aside for use by Native Americans, rather than to determine if Congress has done so.

Additional information and a complete copy of the article available at: http://www.modrall.com/0824091251132712.art

As part of a defense spending bill (S.Amdt.2598 to H.R. 3326), the apology, known as the Native American Apology Resolution, was agreed to by the U.S. Senate on October 1, 2009.  The resolution extends a formal apology from the United States to tribal governments and Native American people nationwide. It is aimed at making amends for years of “ill-conceived policies” and acts of violence against Native Americans by U.S. citizens.  It also asks President Barack Obama to “acknowledge the wrongs of the United States against Indian tribes” in order to encourage healing.  The provision has several more steps to undergo before becoming law.

For additional information, see:  http://www.indiancountrytoday.com/home/content/63849997.html; http://indian.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=67d20d20-0eae-43b0-9fa5-42e3c3a2fde9&Month=10&Year=2009

Co-Chairs:
Donald M. Clary

Jana L. Walker

Vice Chairs:
Committee Newsletters
Catherine A. O'Neill

Membership
Kimberly E. Craven

Programs
Todd J. Araujo

Public Service
Jane Gardner

Technology
Brian Nichols

The Year in Review
Klint Austin Cowan

Additional (Climate Change and Energy Issues)
Robert Gruenig

Additional (Committee Newsletters)
Timothy J. Humphrey, Sr.

Additional (Indian Water Rights)
Bidtah N. Becker

Additional (Law Student Outreach and Technology)
Robert J. Miller

Additional (Programs)
Dean B. Suagee