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IN PURSUIT OF JUSTICE: PAST, PRESENT, AND FUTURE IMPACTS OF

ENVIRONMENTAL INJUSTICE AND COLONIAL PRAGMATISM IN INDIAN


COUNTRY
BY
JENNIFER ANNE HILL-HART
Bachelor of Arts, Political Science, University of Colorado, Boulder, CO, 2002
Bachelor of Arts, Environmental Studies, University of Colorado, Boulder, CO, 2002
Juris Doctor, University of Montana, Missoula, MT, 2011

Portfolio
presented in partial fulfillment of the requirements for the degree of
Master of Science
in Environmental Studies
The University of Montana
Missoula, MT
December 2015
Approved by:
Robin Saha, Committee Chair
Environmental Studies
Len Broberg
Environmental Studies

In Pursuit of Justice: Past, Present,


and Future Impacts of
Environmental Injustice and
Colonial Pragmatism in Indian
Country
Jennifer Hill-Hart
Fall 2015

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Table of Contents
In Pursuit of Justice: Past, Present, and Future Impacts of Environmental Injustice and colonial
pragmatism in Indian Country
1
In Pursuit of Justice: Past, Present, and Future Impacts of Environmental Injustice and Colonial
Pragmatism in Indian Country
2

Introduction

Summary of Portfolio

Shaky Foundations, Shaky Promises: An Environmental Justice Case Law Analysis of How the
Federal Government is Failing Indian Country
7
Hydro Resources, Inc. v. U.S. EPA: A Case Study on Patchwork Environmental Regulation in
Indian Country
8
In Pursuit of Justice in Indian Country: Internship to Executive Director
10

Shaky Foundations, Shaky Promises: An Environmental Justice Case Law Analysis of How
the Federal Government is Failing Indian Country
11
Hydro Resources, Inc. v. U.S. EPA: A Case Study on Patchwork Environmental Regulation in
Indian Country
39
In Pursuit of Justice in Indian Country: Internship to Executive Director

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Introduction
Environmental justice incorporates the fairness of who gets to participate, and to what
extent the decision-making includes free and informed consent and meaningful public
participation in activities. Justice and access to justice require that policies and programs must
meet the standard of fairly considering and representing the cultures, values, and situations of all
affected parties, as well as their capacity to participate in negotiations. These struggles reflect
historical, cultural, social, and political issues that are experienced locally. And very, very
personally.
In 1991, the First National People of Color Environmental Leadership Summit issued a
set of seventeen principles of environmental justice. These principles attacked the causes and
consequences of environmental injustice from four broad justice perspectives. Distributive
justice sought equal protection by lowering environmental risks, rather than shifting or
reallocating those risks. Corrective justice sought equality in governmental enforcement in
minority and low-income communities, as done in white, affluent communities. Procedural
justice sought access to decision-making structures by those affected by the governments
decision-making processes, as well as the information and resources necessary to participate
effectively. Social justice insisted public health and economic opportunity were essential to the
quality of life in communities and people should not have to choose between the two.
Environmental justice in Indian Country embodies these concepts, particularly themes of
seeking fair treatment and enhancing public involvement of disaffected groups. Traditional
environmental justice discourse has struggled to accurately portray the environmental justice
realities within Indian Country. Indian Country faces separate environmental justice issues than
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those confronting other populations: tribes unique status as sovereign entities; government-togovernment consultation requirements; and federal trust responsibilities to tribes. Achieving
environmental justice in Indian Country requires political recognition of Tribal communities in
environmental decision-making regarding access to the environment and mitigation of
environmental pollution. The history of federal policies in Indian Country, as well as
environmental law and regulation, demonstrate the one-sidedness of those policies where Indian
Country access was seemingly an afterthought. This leaves Indian Country left shouldering an
unjust burden of responsibility to create healthy, prosperous communities while struggling with
economic deprivation and inadequate infrastructure and capacity to do so. And the federal
government is to blame.
Two big pieces of Indian Country environmental justice struggles are a result of
inadequate access to decision-making, policy making, and adequate infrastructure creating or
enforcing environmental regulation in Indian Country, as well as the trend of the federal courts,
the Supreme Court in particular, to ignore principles of federal Indian law when producing
opinions on federal Indian law cases. I agree with several scholars that the Supreme Court in
deciding federal Indian law cases not on the bases of precedent and guiding legal theory, but
upon the pragmatic ideals of the Court. I argue that the pragmatic ideals of the Court has the
effect of colonizing Indian tribes through the judicial rule-making that insidiously chips away at
federal Indian law by creating bright line rules out of the confusion the Court has created since
the Rehnquist years, and instead, developing opinions based upon Constitutional issues, which
are not the correct legal precedent in federal Indian law cases, outside of the Indian Commerce
Clause.
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In my portfolio pieces, Shaky Foundations, Shaky Promises: An Environmental Justice


Case Law Analysis of How the Federal Government is Failing Indian Country and Hydro
Resources, Inc. v. U.S. EPA: A Case Study on Patchwork Environmental Regulation in Indian
Country, I discuss the U.S. Supreme Courts trend of deciding federal Indian law cases, not on
principles of federal Indian law, but from a colonial pragmatic approach that may have
devastating consequences for federal Indian law jurisprudence. In Hydro Resources, Inc. v. U.S.
EPA: A Case Study on Patchwork Environmental Regulation in Indian Country, I also discuss the
development of environmental regulation in the Indian Country, and its role in how
environmental laws are enforced today. This entire portfolio will look at the effects of past,
present and future impacts of United States environmental policies, laws, and practices in Indian
Country, focusing on issues of environmental justice and access to justice, by analyzing case law
involving Tribes, as well as my own academic and professional experiences in Montana and New
Mexico.

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Summary of Portfolio
Shaky Foundations, Shaky Promises: An Environmental Justice Case Law
Analysis of How the Federal Government is Failing Indian Country

Environmental injustices on reservation lands bring a unique historical context of policymaking surrounding reservation lands, as well as the federal governments legal relationship with
Indian tribes. Environmental justice incorporates the fairness of who gets to participate, and to
what extent the decision-making includes free and informed consent and meaningful public
participation in activities. Environmental justice issues involving Indians must be viewed against
the backdrop of tribal sovereignty, because by treating Indians as equivalent to any other
minority group when looking at environmental racism, their unique sovereign rights are largely
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ignored.1 Indian Country faces separate environmental justice issues than those confronting
other populations: tribes unique status as sovereign entities; government-to-government
consultation requirements; and federal trust responsibilities to tribes.
A recognition justice lens places political recognition as central to ending environmental
injustice. The recognition justice approach captures the unique tribal values and situational
particularity, including the historical, cultural, and political realities that uniquely separate Indian
people and tribes from a traditional environmental justice analysis in the United States. This type
of analysis enables us to identify gaps and barriers in environmental decision-making, thereby
resulting in a call for a more inclusive program and policy making process that advocates for a
more creative, collaborative, and just environmental policy making framework in Indian
Country. Through an examination of the Marceau v. Blackfeet Housing Authority federal case,
this paper will conduct a recognition-based environmental justice analysis of the injustices that
have happened to the members of the Blackfeet Nation living in federally funded toxic
residences for the past 30-40 years.
!

Hydro Resources, Inc. v. U.S. EPA: A Case Study on Patchwork


Environmental Regulation in Indian Country
When federal environmental laws were
being developed forty years ago, nearly all of
them forgot to mention Indian Country. This
created a regulatory gap in environmental law and

1 Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 Envtl. L. 437, 471 (Spring 2010).

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led Congress to start adopting amendments, patchwork-style, to try and fit Indian tribes into the
United States cooperative federalism model of environmental regulation. Several environmental
laws adopted treatment as states (TAS) provisions for environmental regulation in Indian
Country. The question remains as to whether or not tribal interests are met within the federal
governments western model of environmental regulation. Is this just a form of federal
paternalism or does it provide an opportunity for tribes to self-determine their destinies, even if
only within the confines of federal environmental law.
A key component of environmental justice is that certain communities within the larger
society lack an adequate voice to ensure their interest in health and welfare are respected on par
with others desires, contributing to the creation of inequitable environmental risks.2 By
examining the 10th Circuit case, Hydro Resources, Inc. v. U.S. EPA (HRI III),3 this paper attempts
to determine whether or not tribal sovereignty and self-governance are promoted and supported
under the provisions of the Safe Drinking Water Act (SDWA).

In HRI III, the court refused to

give deference to the EPAs determination of what are Indian lands for the purposes of
Underground Injection Control (UIC) permitting under the SDWA, which may be contrary to
administrative law, but has further negative repercussions for environmental regulation in Indian
Country. Although the EPA may be well-meaning in implementing federal environmental laws,
HRI III shows how gaps in federal policy over environmental regulation in Indian Country still
exist and can result in the negative consequences of state authority to regulate water in a manner

2 James Grijalva, Closing the Circle: Environmental Justice in Indian Country, Carolina Academic Press, p 188 (2008).
3 Hydro Resources, Inc. v. U.S. EPA, 608 F.3d 1131 (10th Cir. 2010) (hereinafter HRI III).

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that is contrary to the express wishes of Indian tribes and contrary to federal Indian law and trust
responsibility.
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In Pursuit of Justice in Indian Country: Internship to Executive Director


I started the JD/MS Environmental Studies program at the University of Montana in
August of 2007, starting my first year in the Environmental Studies program. My professional
goal then and now is to work on environmental justice issues in Montana, particularly in Indian
Country. My graduate studies afforded me many opportunities to work in areas of social justice
work, including the environmental justice realm. This paper describes part of my journey through
my academic and professional work, highlighting how my personal experiences have allowed me
to see first-hand the long-term impacts environmental injustice, particularly persistent poverty
and lack of access to resources has on Indian Country. These experiences have shaped my
current career path and have led me to my current profession as the Executive Director of a
statewide nonprofit environmental organization.

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Shaky Foundations, Shaky Promises: An Environmental Justice


Case Law Analysis of How the Federal Government is Failing
Indian Country
!

Most observers of federal Indian law cases reach the conclusion thatin the words of an Eighth
Circuit judge who was reversed by the Court in a major Indian law casethe Supreme Court
makes up Indian law as it goes. 4
Introduction
Environmental injustices on reservation lands carry a unique historical context of policymaking surrounding reservation lands, as well as the federal governments legal relationship with
Indian tribes. The EPA established its own definition of environmental justice:
The fair treatment of people of all races, cultures, incomes, and educational
levels with respect to the development and enforcement of environmental laws,
regulations, and policies. Fair treatment implies that no population should be
forced to shoulder a disproportionate share of exposure to the negative effects of
pollution due to lack of political or economic strength.5
Indian Country faces separate environmental justice issues than those confronting other
populations: tribes unique status as sovereign entities; government-to-government consultation
requirements; and federal trust responsibilities to tribes.
The Glacier Homes case involving the Blackfeet Tribe in Montana illustrates how and
why serious environmental injustices can occur on Indian reservations in the U.S. In the Glacier
Homes housing development, built in the 1970s, hundreds of people are trapped in 153 unhealthy

4 Matthew Fletcher, The Supreme Courts Indian Problem, 59 Hastings L.J. 584, 584-585, 589 (2007-2008), citing Audiotape:

Oral Argument, Prescott v. Little Six, Inc., 387 F.3d 753 (8th Cir. 2004) (comment by Judge Wollman at 14:5) (available at http://
www.ca8.uscourts.gov/oralargs/oaFrame.html (follow the "Case Number" link, search for case number 03-3702).)
5 United States Environmental Protection Agency. Environmental Justice: Basic Information Website. Accessed on 12/01/15.

< http://www3.epa.gov/environmentaljustice/basics/ejbackground.html>. Last updated 10/20/15.

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and substandard, federally funded homes.6 The foundations of the Glacier Homes were built
using CCA wood, now banned for residential use by the U.S. EPA. The foundations are
inappropriate to the moist climate and high water tables of the Blackfeet Reservation, resulting in
the growth of toxic black mold and structural damage of the homes; there are also problems with
the poorly built plumbing, septic and ventilation systems. 7 It is this litany of structural failures
that residents of Glacier Homes feel has contributed to sewage contamination, unsafe radon
levels, and the growth of toxic black mold in their homes, causing them and many others to
believe that their houses are slowly killing them.
Residents of these homes share a common link of a wide array of health problems,
including chronic headaches, nosebleeds, dizziness, and nausea. Even more serious ailments
include respiratory illnesses such as asthma, pulmonary hemorrhaging, sinusitis and chronic
coughing, as well as kidney failure, cancer and an overall weakened immune systems.iv
Although there has not been an adequate health study of the residents to date, it is not difficult to
directly link their illnesses with the toxic homes. A disproportionate amount of people who live
in these homes are sick compared to those who live elsewhere, showing a strong correlation
between the homes and their illnesses.8 Only when the issues surrounding these injustices are
addressed, can reconciliation and compensation even begin for those individuals and families
who have been forced to live in substandard, overcrowded housing. Environmental justice may

6 Marceau v. Blackfeet Housing, 455 F.3d 974 (9th Cir. 2006) (Marceau I).
7 STAT! Disaster Restoration, Inc. 2002. Bioremediation of Housing on the Blackfeet Reservation. Compiled for Blackfeet

Housing.
8 Unpublished report, student researchers, Souta Calling Last and Lindsey Cummings, Faculty Supervisor Robin Saha,

Blackfeet Indoor Bio-Contaminant Assessment Project, January 2008.

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very well be the medium through which Indian tribes can finally receive meaningful attempts to
support tribal self-government by the federal government and its citizens.
This paper will conduct a recognition-based environmental justice analysis of the
injustices that have happened to the members of the Blackfeet Nation living in the Glacier
Homes toxic residences for the past 30-40 years. The recognition justice approach captures the
unique tribal values and situational particularity, including the historical, cultural, and political
realities that uniquely separate Indian people and tribes from a traditional environmental justice
analysis in the United States. This type of analysis enables us to identify gaps and barriers in
environmental decision-making, thereby resulting in a call for a more inclusive program and
policy making process that advocates for a more creative, collaborative, and just environmental
policy making framework in Indian Country.

Background
Under the United States Housing Act of 1937, as amended in 1976 (USHA), the U.S.
Department of Housing and Urban Development (HUD) implemented the Mutual Help
Homeownership Opportunity Program (MHHOP), a federally-funded lease-to-own housing
program to help low-income families purchase a home, albeit in homes that had to be completed
at the lowest possible cost. 9 At the time, no federal policy on housing in Indian Country existed
and this was also the only federal public housing legislation that was broad enough to apply to
housing on Indian reservations. 10 The Blackfeet Tribe established the Blackfeet Tribal Housing

9 U.S. Dep't of Hous. & Urban Dev., Manual 7440.1: Interim Indian Housing Handbook 3-40 (1976).
10 42 U.S.C.1401-1435j (1976).

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Authority, later called the Blackfeet Housing (BH),11 as required by HUDs regulations and
adopted HUDs model enabling ordinance. 12 The enabling ordinance charged the BH with
[a]lleviating the acute shortage of decent, safe and sanitary dwellings for persons of low
income and [r]emedying unsafe and [u]nsanitary housing conditions that are injurious to the
public health, safety and morals.13
HUD granted BH authorization and funding to build the 153 MHHOP homes that were
built during 1979 and 1980. As stated in the Factual Background of 9th Circuit United States
Court of Appeals case, Marceau v. Blackfeet Housing Authority, the residents of the homes sued
HUD and BH, alleging that the homes were not constructed well, with wood foundations, and
those wood products were chemically treated with arsenic and other toxic chemicals, explaining
that [i]n the ensuing years, the foundations were, predictably, vulnerable to moisture
accumulation and structural instability.14 The foundations of the Glacier Homes were built using
wood treated by chromate copper arsenate (CCA), now banned for residential use by the U.S.
Environmental Protection Agency (EPA) (except for roofing).15 These foundations are
inappropriate to the moist climate and high water tables of the Blackfeet Reservation, resulting in

11 The Board of the Blackfeet Housing Authority has been disbanded and now is an arm of tribal government called Blackfeet

Housing. Marceau I, supra n. 6 at 977, fn. 2.


12 Id. at 977, citing 24 C.F.R. 805.109(c) (1979).
13 Id.at 977, citing Blackfeet Tribal Ordinance No. 7, art. II, 1-2 (Jan. 4, 1977).
14

Id. at 977.

15 Dube, E, C Boyce, B. Beck, T. Lewandowski, and S. Schettler. 2004. Assessment of Potential Human Health Risks from

Arsenic in CCA-Treated Wood. Human and Ecological Risk Assessment. Dec 2004. 10(6): 1019-1067; Edlich, RF, KL
Winters, and WB Long III. 2005. Treated Wood Preservatives Linked to Aquatic Damage, Human Illness, and Death--A
Societal Problem. Journal of Long Term Effects Medical Implants. 2005. 15(2): p.209-224; United States Environmental
Protection Agency. (2003). Response to Requests to Cancel Certain Chromated Copper Arsenate (CCA) Wood Preservative
Products and Amendments to Terminate Certain Uses of other CCA Products. < http://www.epa.gov/EPA-PEST/2003/April/
Day-09/p8372.htm. 12/01/07.

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the growth of toxic black mold and structural damage of the homes.16 Today, the homes are
uninhabitable due to toxic mold and dried sewage residues and there been a high incidence of
cancer, asthma, kidney failure, respiratory problems, and other serious health problems among
the residents of the homes. The Plaintiffs were advised to leave their homes for health reasons,
and argued to the court that some residents cannot leave because there are, quite simply, no
affordable housing options in the area.17 The homeowners made the monthly payments on their
homes and invested their own time and resources into regular maintenance, as required by
MHHO program. HUD oversaw and funded the construction of the homes, directing these funds
and construction through BH.18 After it became clear the homes were hazardous and substandard,
some homeowners sought assistance from the Housing Authority and HUD for remedy. When
they were denied any relief, they filed suit in federal District Court. 19

Summary of the Case: Marceau v. Blackfeet Housing Authority


Procedural History

16 Marceau I, supra n. 6 at 977.


17 Id.
18 Id.
19 Id.

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On August 2, 2002, eight residents of the toxic Glacier Homes filed a lawsuit against the
BH20 and HUD in the U.S. District Court in Montana.21 The Plaintiffs argued that HUD, violated
its trust duty to the Blackfeet Tribe when it mandated the construction of substandard homes and
the homeowners were due a legal remedy.22 The Plaintiffs sought an order from the court
requiring the Defendants to comply with the federal law, to make their homes healthy, safe,
suitable, decent, and sanitary, specifically to rehabilitate or reconstruct their existing homes,
provide them with new homes, or pay them adequate damages so they may make their own
repairs or acquire their own safe, decent and sanitary housing. 23 The District Court found that no
legal trust duty existed since the federal government did not have full statutory or regulatory
responsibly for the construction project. 24
The 9th Circuit Court en banc panel affirmed the District Courts ruling on appeal,
dismissing the claims against HUD, and while they recognized HUDs pervasive control over the
Glacier Homes project, it found that under the law, HUD did not exercise control over a tribal
resource, therefore the necessary elements of a trust relationship did not exist. 25 On a petition for
rehearing, the Panel reheard the case in the summer of 2007, issuing an amended opinion on

20 The Board of the Blackfeet Housing Authority has been disbanded and became an arm of tribal government called Blackfeet

Housing, as referred to in the courts opinion. 455 F.3d at 977, fn. 2. The Blackfeet housing program is now managed by the
Blackfeet Tribal Business Council. It is called BH for the purposes of simplicity in explaining the Defendants in the case.
21 Marceau v. Blackfeet Housing Authority, 2004 U.S. Dist. LEXIS 2552 at *3 (D. Mont. Jan. 14, 2004), revd in part and affd

in part, 455 F.3d 974 (9th Cir. 2006), opinion adopted in part, modified in part on rehearing by Marceau v. Blackfeet Housing
Authority, 519 F.3d 838 (9th Cir. 2008).
22 Id. at **3-6.
23 Marceau v. Blackfeet Housing Authority, 519 F.3d 838 (9th Cir. 2008) (Marceau II).
24Marceau, supra n. 21 at **7-8.
25 Marceau I, supra n. 6 at 984.

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March 19, 2008.26 The Panel let the Administrative Procedures Act (APA) claim to proceed and
found that the case against Blackfeet Housing and its board members did not exhaust tribal
remedies and remanded its case back to Tribal Court, but maintained the federal government did
not have a trust duty to construct, maintain, or repair Plaintiffs homes.27 In his special
concurrence in the first Panel opinion, Judge Pregerson recognized a moral obligation to provide
adequate housing for the residents of Glacier Homes: [w]e have a moral duty, if not a legal duty,
to remedy the harm caused to these Plaintiffs.28 In the amended opinion, Judge Pregerson wrote
a dissent disagreeing with the Panels analysis of federal trust responsibility, identifying a legal
obligation to the Plaintiffs, finding the federal governments pervasive control of housing on the
Blackfeet Reservation directly relates to the trust obligations owed to the tribe.29
On August 22, 2008, the 9th Circuit en banc panel denied the Blackfeet Housings
petition for rehearing and HUDs petition for a panel rehearing. 30 In November 2008, the
Plaintiffs filed a petition to appeal to the U.S. Supreme Court, challenging the 9th Circuits
finding of no trust responsibility, and the petition was denied.
Part of the case was brought against the Blackfeet Housing Authority in Blackfeet Tribal
Court. On November 19, 2010, the Blackfeet Tribal Court ruled that Blackfeet Housing was
responsible for full, fair and just adjudication of the issues, regardless of whether the federal
government helps pay for the cost for the actions of its predecessor, Blackfeet Tribal Housing
26Marceau II, supra n. 23.
27 Id. at 850.
28 Marceau I., supra n. 6 at 987-89.
29 Marceau II, supra n. 23 at 852.
30 Marceau v. Blackfeet Housing Authority, 540 F.3d 916 (9th Cir. 2008) (Marceau III).

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Authority and its Board, finding BH was a mere continuing entity and assumes all its obligations.
The Court also found that the Tribes sovereign immunity does not apply to BH and they are
responsible for replacing or repairing the homes. 31 As a result, the Blackfeet Tribal Court also
found that HUD is not a necessary party to this lawsuit.32 Practically speaking, this ruling had the
effect of ending any hope for a remedy as the Tribe does not have the funds to remediate and/or
replace the homes, which is why tribal members needed the HUD funds in the first place.
The case was remanded back to the District Court where the APA claim was heard and
the Plaintiffs filed a third amended complaint seeking review of HUDs 1976-1977 decision and
its failure to respond to requests for assistance. The District Court ruled in favor of HUD and the
Plaintiffs appealed in May 2011.33 In an unpublished Memorandum on June 5, 2012, the 9th
Circuit affirmed the District Courts ruling that it was too late to bring a civil APA challenge
against HUD and the Plaintiffs did not show agency inaction by HUD that would support a claim
under the APA.34 The Plaintiffs appealed to the U.S. Supreme Court on August 29, 2012 and the
Supreme Court denied review of the case.35

Trust Responsibility & Colonial Pragmatism of the Federal Government

31 Blackfeet Tribal Housing Authority told it must repair or replace mold infested houses, Ravalli Republic, November 25,

2010, < http://ravallirepublic.com/news/state-and-regional/article_60b5d398-f8f8-11df-9787-001cc4c002e0.html>, last accessed


on 12/5/15.
32 Id.
33 Marceau v. Blackfeet Housing Authority, No. 11-35444 DC No. Civ. 4:02-0073 SEH (9th Cir. 2012), cert. denied, 568 S. Ct.

(U.S. Jan. 14, 2013) (No. 12-278).


34 Id.
35 Id.

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In Special Offer! Civilization and Assimilation (Houses Not Included)36, Summer Nelson
gives a detailed analysis of the federal governments legal trust responsibility towards Indian
people, in a legal analysis disagreeing with the 9th Circuits decision to not recognize a trust
responsibility. 37 Nelson agrees with Judge Pregerson in that a moral and legal obligation exists
by the federal government to provide safe, sanitary and decent housing to the Glacier Homes
residents:
[i]n light of demolished tribal infrastructures, and federal government coercion
and promises of a better life complete with the comforts of Anglo civilization, the
government should be responsible for breaching its trust responsibilities to the
Marceau plaintiffs when it directed and funded construction of their substandard
Glacier Homes. 38
The guardian-ward relationship between the federal government and Indian people warrant
special obligations by the federal government when it pervasively controls a tribal resource, and
a network of laws indicate a trust purpose or policy exists in that management, therefore a fair
inference arises for Indian parties to recover damages from the government for breach of its trust
duties.39 Although the Panel recognized the houses as resources, it held no trust duty existed
because the government offered grants but did not hold the property in trust, downplaying
HUDs role by focusing on the Tribes involvement and the fact that the tribes were not required
to participate in MHHOP. Nelson argues as follows:
The governments control limited opportunities for housing, rendering federal
assistance through programs such as MHHOP the only means by which many
36 Nelson, Summer. Special Offer! Civilization and Assimilation (Houses Not Included), 29 Pub. L. Res. LR 141 (2008).
37 Id. at 143.
38 Id. at 154.
39 Id.

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Indians could obtain the housing portion of their civilization. The funds HUD
provided for the houses are so inextricably intertwined with Plaintiffs
opportunities to obtain housing that it would be disingenuous to claim the funds
were not a tribal resource. Both monetary and technical assistance for the
housing construction was conditioned on operating under HUDs control, and the
government controlled both funds and housing construction.40
Nelson also argues that in the first opinion, the Panel mistakenly focused on the maintenance
duties of the Plaintiffs and not the construction duties, even though they recognized the faultiness
of the construction of the homes.41 In the amended opinion, the Panel failed to consider years of
promises by the U.S. government and forced dependence on government for housing, and also
stated no statute required the government to construct homes. Further, they failed to consider the
regulations that governed construction of the homes under which HUDs funding and technical
assistance gave the government pervasive control over the housing project, and the Tribe had to
submit to HUDs control over the housing project in order to get the houses promised, and no
other housing options existed.42
Nelson argues that promises made by the U.S. government in treaties and codified in
housing statutes and programs like MMHOP, create a trust responsibility of the federal
government.43 Further, under federal Indian law, Indian treaties must be interpreted as the
Indians would have understood them 44 and this extends to the interpretation of statutes enacted

40 Id. at 156.
41 Marceau I, supra n. 6 at 977, 985.
42 Nelson, supra n. 36 at 155-157.
43 Id. at 157.
44

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

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for the benefit of Indians or Indian tribes. 45 Indian people were supposed to be given houses as
part of the U.S. governments promises, but then the government failed to provide these homes
and at the same time it restricted the Indian people from developing their own housing market
and infrastructure.46 The 9th Circuit Court should have found that the federal government had a
duty to provide housing for the Blackfeet as an aspect of the federal governments legal trust
responsibility towards its wards,47 arising from the federal governments rendering Indian
people dependent on its aid, and promising to replace their pre-existing cultures with the
comforts and amenities of Anglo civilization. 48
Several scholars, including professors of law and known Indian law scholars, have
pointed out the trend of the Supreme Courts inconsistency or incoherence in deciding issues in
the field of federal Indian law.49 They point out the trend of the Court in deciding federal Indian
law cases not on the bases of precedent and guiding legal theory, but upon the pragmatic ideals
of the Court. Whereas the core cases of the federal Indian law canon, the Marshall Trilogy
(Johnson v. MIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia) asserted federal
Indian tribes retained inherent sovereignty unless explicitly divested by Congress, three
45 Fletcher, supra n. 4 at 584-585 (citing F. Cohen, Handbook of Federal Indian Law (1982 ed.) 2.02, at 119-28); Chickasaw

Nation v. United States, 534 U.S. 84, 95 (2oo1) ("Nor can one say that the pro-Indian canon is inevitably stronger-particularly
where the interpretation of a congressional statute rather than an Indian treaty is at issue.).
46 Nelson, supra n. 36 at158.
47

Id. at 143 (citing Virginia Davis, A Discovery of Sorts: Reexamining the Origins of the Federal Indian Housing Obligation, 18
Harv. BlackLetter L.J. 211 (Spring, 2002); Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831)).
48

Id. at 143 (citing Robert Odawi Porter, Sovereignty, Colonialism and Indigenous Nations: A Reader, 372 (Carolina Academic
Press 2005)).
See e.g., David M. Blurton, Canons of Construction, Stare Decisis and Dependent Indian Communities: A Test of Judicial
Integrity, 16 ALASKA LAW REVIEW, 37-60 (1999); Philip P. Frickey, (Native) American Exceptionalism in Federal Public
Law, 119 HARV. L. REV. 431 (2005); Alex Tallchief Skibine, Teaching Indian Law in an Anti-Tribal Era, 82 N.D. L. REv.
777(2oo6); Matthew Fletcher, The Supreme Courts Indian Problem, 59 Hastings L.J. 579 (2008); Grant Chirstensen, Judging
Indian Law: What Factors Influence Individual Justices Votes on Indian Law in the Modern Era, 43 U. Tol. L. Rev. 267
(2011-2012).
49

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contemporary cases (Oliphant v. Suquamish Indian Tribes, Montana v. United States, and
Nevada v. Hicks) undermined tribal sovereignty through the development of the implicit
divestiture doctrine which states that upon incorporation into the United States, Indian tribes
were implicitly divested of any sovereign power inconsistent with their status as domestic
dependent nations.50 According to Alex Tallchief Skibine:
the Court's refusal to integrate or incorporate Indian tribes under a third sphere
of sovereignty within our constitutional system, leaves tribes to exist at the
"whim of the sovereign," be it the United States Congress or the Supreme Court.
Not only is this inconsistent with the emerging norms of international law on the
rights of Indigenous Peoples, but it has also resulted in confusion, incoherence,
and a Court determined to usurp the role the Constitution vested in Congress,
which is to regulate the relations between the tribes and the United States.51
Law professor Philip Frickey argues that Chief Justice Marshall set the stage for the framework
of federal Indian law (with the Marshall Trilogy) because he seemed to recognize the core
normative dilemma of building constitutionalism on a foundation of colonization and that the
aggressive canons of treaty interpretation and other exceptional aspects of federal Indian law that
he embraced were motivated by a basic desire to mediate colonialism and constitutionalism. 52
He argues that Chief Justice Marshalls frameworks exceptionalist quality seemed motivated by
normative concerns: mediating the harshness of colonialism and providing some room for
cultural difference and autonomy.53 According to Frickey, in recent years, the Court has
injected itself into Indian affairs despite having an even more inferior constitutional pedigree

50 Alex

Tallchief Skibine, Constitutionalism, Federal Common Law, and The Inherent Powers of Indian Tribes, 39 Am. Indian L.
Rev. 77, 78 (2014-2015).
51

Id. at 80.

52

Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 433, 487 (2005).

53

Id. at 488.

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than Congress has and as a result, there has been a serious confrontation between congressional
and judicial functions in federal Indian law, but the greater problem is
without an interrogation of immense normative problems of a constitutional system
created by colonialism, the answers generated by the Court are doomed to reflect a
ruthless pragmatism inconsistent with even the modest respect for tribal prerogatives that
traditional federal Indian law sometimes reflected in appreciation of our colonial past.54
Professor Frickeys analysis of this trend argues that it makes federal Indian law doctrines
become more confused, and ruthlessly pragmatic.55
As a result, the principles of federal Indian law, long established by treaties among tribes
and the federal government as well as case law laying down the federal Indian law canons of
construction with the Marshall Trilogy, 56 have been replaced by the colonial pragmatic rulemaking of the Supreme Court. The pragmatic ideals of the Court has the effect of colonizing
Indian tribes through the judicial rule-making that insidiously chips away at federal Indian law
by creating bright line rules out of the confusion the Court has created since the Rehnquist years,
and instead, developing opinions based upon Constitutional issues, which are not the correct
legal precedent in federal Indian law cases, outside of the Indian Commerce Clause. Without a
solution that recognizes and admits this trend, and engages Indian tribes in its solution, this
colonizing practice, cloaked in pragmatism, may terminate federal Indian law as we know it.
These colonizing trends in federal Indian law undermine the rights of Indian tribes and tribal

54

Id. at 436.

55

Id. at 436 & 460.

Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in Modern Constitutional Democracy, 24
(1987). Wilkinson coined the term the Marshall Trilogy of cases, referring to: Johnson v. MIntosh, 21 U.S. (8 Wheat) 543
(1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
56

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sovereignty by in effect stripping any opportunity for procedural justice, leaving Indian tribes
once again at the mercy and whim of the conqueror, the federal government.

Recognizing Environmental Justice in Indian Country


The Marceau Plaintiffs are the victims of an unfortunate and confusing historical trend of
the elimination of legal rights and precedent protecting the rights of Indian people. What we have
here is a justice system where those in power made promises in order to assume control over a
population, and when that governing system failed to support the infrastructure and capacity to
keep those promises, created a series of judicial decisions that hacked up legal precedent, picking
and choosing pieces at whim, if not outright ignoring established law, in order to avoid
culpability for the U.S. governments promise to Indian peoples. Federal polices and programs
that affect Indian Country must fairly consider and recognize the unique circumstances of Indian
tribes, as well as the nature of the quasi-sovereign status of Tribes, the government-togovernment relationship between the federal government and Tribes, and recognition of the
governments trust relationship with Indian peoples. In this part, this paper will discuss how a
recognition-based environmental justice analysis creates a framework to fairly consider and
recognize the unique circumstances of Indian tribes.

Environmental Justice Frameworks


Environmental justice incorporates the equitable distribution of environmental risks and
environmental goods, and who gets to make the environmental policy decisions and who does

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not.57 Indian Country environmental issues have only recently been receiving the appropriate
level of environmental justice analysis, whereas by treating Indians as equivalent to any other
minority group when looking at environmental racism, their unique sovereign rights are largely
ignored.58 Environmental justice issues involving Indians must be viewed against the backdrop
of tribal sovereignty, 59 but they also must consider the unique historical realities of Indian tribes,
as well as the continuing political and economic repercussions of the federal governments long
history of colonizing efforts in Indian country. These historical and political realities must be
recognized, and those power systems that stifled the voices of Indian tribes must be changed,
including political arrangements, institutional structures, and program guidelines that empower
tribal communities as environmental decision makers. Only then can environmental justice begin
to be achieved by better ensuring a level playing field in environmental decision-making in
Indian communities.
More and more scholars are examining the unique realities at play in environmental
justice analyses in Indian country. Law professor James Grijalva maintains that the necessary
lens for environmental justice in Indian Country challenges tribal and environmental advocates
because it asserts that tribes should play an expanded role while seeming to accept that results
should be judged based on whether Indians bear a disproportionate burden, creating potential
conflict between distributional justice and sovereignty-informed environmental justice.60

57 Robert Melchior Figueroa, Ch. 7: Evaluating Environmental Justice Claims, Forging Environmentalism: Justice, Livelihood,

and Contested Environments. Joanne Bauer, ed. M.E. Sharpe: Armonk, NY (2006), p 360.
58 Rosser, supra n. 1.
59 Id. at 473.
60 Id. at 474.

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Robert Melchior Figueroa approaches environmental justice as largely an emphasis on


distributive and procedural justice, the equitable distribution of environmental risks and
environmental goods (how resources are used) and who gets to make the environmental policy
decisions and who does not.61 He emphasizes the interrelatedness of distributive justice and
political recognition, and argues that distributive justice and compensation is not enough to
achieve environmental justice for marginalized communities.62 Figueroa argues for recognition
justice which places political recognition as central to ending environmental injustice. That
requires the institutions of mainstream environmentalism to be transformed to include the voices
of those most affected by environmental burdens, and requiring evidence of dispositional change,
more than compensation and redistribution of burdens; and those at fault must concede injustice
to provide a guarantee the environmental injustice will not repeated.63
Kyle Powys Whyte builds on this concept and argues that a recognition-based concept of
environmental justice is the key to preventing environmental injustices in Indian Country, and
recognition justice is the standard that should be used to evaluate whether political arrangements,
institutional structures, and program guidelines promote environmental justice at all levels of
environmental decision-making.64 A recognition-based concept of environmental justice calls for
a shift in environmental decision-making, ensuring the tribal voice is at the table, wrongs done to
them are acknowledged, and systems are changed, with those changes informed and led by

61 Figueroa, supra n. 57.


62 Id. at 360.
63 Id.
64 Kyle Powys Whyte, The Recognition Dimensions of Environmental Justice in Indian Country, Environmental Justice, Vol. 4,

No. 4, 199, 199 (2011).

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Indian tribes. Environmental justice in Indian Country hinges on the structure of governmentto-government relations (statutory language, regulatory rules, etc.), the strength of tribal
institutions, and the adequate provision of funds for tribal programs through business revenues
and grants.65 Whyte argues that tribal government ability to challenge and contest federal
policies that impinge on their sovereignty as key to preventing environmental injustices in Indian
Country. 66 Tribes are open to injustice specifically because the way tribal sovereignty is defined
and represented in relation to non-tribal institutions. 67
Whyte argues that an environmental justice analysis in Indian Country is not appropriate
without respect for tribal cultures, values and genuine acknowledgment of tribes particular
situations, referring to the differences in tribes cultures, experiences with colonization,
governing capacities, and political statuses.68 Further, tribal environmental struggles cannot be
reduced to class conflicts or frustrated economic aspirations that are consistent with the
economic values of the dominant society.69 A recognition justice lens illuminates issues of
environmental justice in Indian Country because it acknowledges that there are also situations
where the constraints on tribal governments render them ineffective representatives of the
interests of their constituencies, but it does not advocate for what Winona LaDuke calls

65 Id.
66 Id.
67 Id. at 199-200.
68 Id. at 200.
69 Id.

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cheapened conceptions of sovereignty that ignore tribal governments responsibilities toward


their citizens.70
A recognition justice approach focuses on how best to structure new participatory
processes and reform the structures of traditional processes, and this includes dominant
societys way of framing landscapes and Indigenous people through a colonial framework.71
Whyte identifies three challenges for a recognition justice framework for understanding
environmental justice in Indian Country: 1) whether or not the highly unique situations of tribes
fairly considered and represented; 2) whether or not disagreements between non-Indians and
tribal members & constituencies on what practices count as tribal values are recognized and
overcome; and 3) whether or not conflicts that arise when tribal governments enact policies that
favor or develop enterprises and technologies in ways that clash with the views of environmental
and environmental justice movements are resolved.72 These three challenges offer guidance for
an environmental justice analysis of the injustices suffered by the Glacier Homes' residents and
Plaintiffs in the Marceau v. Blackfeet Housing Authority cases, specifically the recognition of the
particularity of situations of tribes, as well as the fact that tribal decisions may not accord with
environmental and environmental justice movements.

Recognition Justice and Marceau v. Blackfeet Housing Association

70Id. at 201.
71 Id. at 202-203.
72 Id. at 204.

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Noting there are 565 federally recognized tribes, Whyte recognizes the high degree of
uniqueness among them, not only culturally, but also in terms of their experiences with
colonization, governing capacities, and political statuses, and their particular environmental
circumstances.73 Policies that reflect procedural justice are only actionable fairly if they are
sensitive to tribal cultures and capacities to participate in negotiations, participatory activities,
and assessments: the Resource Conservation and Recovery Act (RCRA) labeled tribes as
municipalities not sovereign governments a jurisdictional gap resulted, enabling 1100 open
dumps to exist in Indian Country. 74 Distributive justice is only possible if due consideration is
given to tribal values on food and to the uniqueness of the food system: when pollution fish
advisories affect tribal communities, tribal members can no longer eat traditional diets, leading to
health and cultural harms. 75 Another example is when a policy or program has given due
consideration to tribes, but insufficient funds are allocated to meet what tribes would actually
need, and therefore it is not tailored to the diversity governing capacities across Indian Country.
Recognition justice fails when it does not reflect influence from tribal values and when
the program can be implemented by non-tribal entities because tribal governmental status is not
acknowledged or any barriers to the tribes governing capacities do not reflect their historical
origins.76 Laws, programs, and policies must incorporate recognition of unique tribal values and
particular situations, before distributive, procedural, and corrective justice can be

73 Id.
74 Id. at 200-201.
75 Id. at 201.
76 Id.

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achieved. 77According to Whyte, this requires the development of creative participatory


processes that will be employed in various cases and that aim as much as possible for the
inclusion of tribal values and tribes particular situations into police and programs with
implications for EJ.78
After 120 years had passed since the Blackfeet Nation signed the Lame Deer Treaty
where the U.S. government offered settlement resources as part of civilization efforts on the
Blackfeet Nation, and over 100 years of promises to Indian Tribes, made and broken by the
federal government, safe, adequate, and sanitary housing was still an issue for the members of
the Blackfeet Nation. At the time the MHHOP program became available, the Blackfeet Tribe
was looking for a solution to lack of housing opportunities on the Blackfeet Reservation. The
Tribe formed the Blackfeet Housing Authority and adopted HUDs enabling ordinance so they
could receive the funds to build homes for members of the Blackfeet Nation. The Blackfeet
Nation is located in a wet, windy region, with long cold winters, in a geographically isolated
area, without access to readily available construction resources and economic development
opportunities. Despite promises for housing, the Blackfeet applied for the MHHOP program, and
had to pay for the housing, with little say in their construction and cost, effectively in a take-itor-leave-it scenario where the choice was to accept the HUD homes and pay for them, or build
no homes for friends and family who needed and deserved a stable, warm place to live. They
eventually succumbed to HUDs instruction in order to take what they could get.79

77 Id. at 200.
78 Id. at 205.
79 Marceau I, supra n. 6 at 989 (Pregerson, J., concurring).

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A recognition justice approach would have considered an analysis of the historical


situation of the Blackfeet Nation. As Whyte argues, we cannot rest on a one size fits all
approach to conceptions of values, practices, and places; we need
creative and participatory processes that will be employed in various cases and that aim
as much as possible for the inclusion of tribal values and tribes particular situations into policy
and programs with implications for EJ. 80
After over 100 years of promises by the federal government to provide for Indian people,
including the basic need of housing, that promise was not made. If this historical context was
adequately considered, the federal government would have no choice but to provide for the
housing for low-income Blackfeet people at no cost to them. Further, the process would entail
input from the Blackfeet people as to what type of houses would be not only sturdy and
appropriate for that region, but also culturally appropriate and desirable. The Blackfeet Tribe
would have had a say as to the construction of the homes, who built them, where they would be
located, how many they needed, and who would get them. Instead, they were forced to accept the
HUD program and its provisions, rules for construction, and the burden of its mistakes when the
homes turned out to be toxic and faulty. All of which is a blatant disregard for tribal sovereignty,
only recognizing tribal sovereignty as long it remains subject to HUD.
The 9th Circuit Courts refusal to consider the history of federal Indian policy in its
decision not to recognize the trust responsibility of the federal government to replace the faulty
housing demonstrates the continuing trend of federal courts taking a blanket approach to federal
Indian law by applying tribally-specific situations with narrow definitions too broadly to the
cases affecting entirely different tribes, effectively creating such narrow rules as to nearly render

80 Whyte, supra n. 64 at 204-205.

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federal Indian law obsolete. This makes it so difficult to have a cause of action in federal Indian
law, to the point where plaintiffs do not bring federal Indian law cases to federal court for fear of
the further damage that could happen as the courts continue to apply their colonial pragmatic
approach, rather than precedent in federal Indian law. In particular, this decision exhibits a white
privilege version of caveat emptor that reflects the inability of classic privilege-based
institutions to grasp the realities and to dispense justice accordingly. It is absurd to say HUD only
funded the projects and that they did not have a trust responsibility when the treaty rights impose
that responsibility on every act of the federal government and it was their standards of lowest
possible cost that led to this disaster.
Recognition justice must acknowledge that there are also situations where the constraints
on tribal governments render them ineffective representatives of the interests of their
constituencies., but it does not advocate for what Winona LaDuke calls cheapened
conceptions of sovereignty that ignore tribal governments responsibilities toward their
citizens.81 The court should have looked at the unique network of laws surrounding the
Blackfeet Nation, the status of the tribeparticularly that the BH was brand new, times were
desperate and people needed homes, the economic depravation of those who needed homes, as
well as the long history of the federal government promising civilization efforts to the
Blackfeet Nation specifically, as well as Indian Country overall.
Recognition justice should recognize these historical underpinnings and the immense
benefits wrested from the Blackfeet Nation (i.e., Glacier National Park, among others) to balance
the basic human needs of the Blackfeet people. This type of analysis would show that the

81 Id. at 201.

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government of the Blackfeet Nation cared about their people and took an opportunity to give its
members the opportunity to build new homes, when other funding sources were not available to
tribal members for a variety of reasons including high poverty rates, as well as inability to secure
traditional loans to build on Indian land due to the tribal lands trust status. It is also arguable that
as a new housing authority, BH was not experienced in building homes and not particularly well
versed in the ideal structural form or appropriate locations for homes on the Blackfeet
Reservation, where much of the residential development is designated wetland or within a
floodplain. Even if the BH had the capacity and experience to be industry savvy in home
construction in a climate and on soils like those on the Blackfeet Reservation, the structural
options offered by HUD in effect created a take-it-or-leave-it situation for the Tribe, forcing them
to take the offer, due to the immediate safe, sanitary, and adequate housing needs of members of
the Blackfeet Nation living within the Blackfeet Reservation.

UPDATE: Glacier Homes in 2015


At the time the class action lawsuit was filed, 153 homes were under consideration for
recovery, now that number has grown to 200-plus homes with wooden foundations. Today, many
residents of Glacier Homes still live in their toxic homes. Blackfeet Housing has taken some
measures to develop additional housing options, including a new Low-Income Housing Tax
Credit development.82 Since 2010, they have brought more than 100 Low-Income Housing Tax

82 Blackfeet Housing Breaks Ground on Blackfeet Homes #5 Project, Blackfeet Housing website, <http://blackfeethousing.org/

blackfeet-housing-breaks-ground-on-blackfeet-homes-5-project/>, last accessed 12/5/15.

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Credit (LIHTC) homes to tribal members.83 In September 2015, the Blackfeet Housing Authority
received an $800,000 HUD Indian Community Development Block Grant to treat 16 homes that
need mold treatment where they will build and seal new concrete foundations, replacing siding,
windows, doors and roofs in some, but not all 16 homes identified in the grant.84 Blackfeet
Housing Director Chancy Kittson recognizes the 30 year problem of these 200-plus toxic homes
with wooden foundations, but also notes that significant number of the1400 homes
administered by the housing agency were made in the 1960-1970s using substandard practices
that would not be allowed today. 85
It doesnt solve the issue, but it definitely helps us, Kittson said. Were grateful
for any assistance we can get, but the facts are the need for providing affordable,
safe and sanitary housing on the reservation is so high, and with limited funding
Its a struggle to meet those needs of providing just a very basic home. Thats
what makes this grant and other programs like it so vital to our Native American
housing programs.86
In a press release about the grant awards, HUD Secretary Julian Castro stated, [t]hese mold
remediation grants demonstrate HUDs commitment to partnering with Native American
communities to improve tribal housing and create healthy communities where families can
thrive.87 The treatment addressed by this grant, albeit an inadequate solution to this problem as a

83 Housing and economic development superheroes from Native communities honored at annual conference, Red Lake

Nation News, 11/4/15, Vol. 12, No. 47 < http://www.redlakenationnews.com/story/2015/11/04/news/housing-and-economicdevelopment-superheroes-from-native-communities-honored-at-annual-conference/40834.html>, last accessed 12/4/15.
84 David Murray, Blackfeet get $800K to clear mold from public housing Great Falls Tribune, September 21, 2015 < http://

www.greatfallstribune.com/story/news/local/2015/09/21/blackfeet-get-clear-mold-public-housing/72595854/>, last viewed Dec.


5, 2015.
85 Id.
86 Id.
87 U.S. Department of Housing and Urban Development, HUD Awards $12.4 million to 18 Tribes Nationwide to Address

Mold in Native American and Alaska Native Communities, Press Release < http://portal.hud.gov/hudportal/HUD?src=/press/
press_releases_media_advisories/2015/HUDNo_15-117>, last accessed Dec. 5, 2015.

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whole and one that will hopefully bring light to the gravity of the need for a large scale response
for the 100s of people living in toxic homes, uses construction materials and techniques known
to resist mold, and uses safe practices for identifying and remediating mold, according to HUD.
These attempts at remediation are coming solely from the current BH leadership, but are a small
cry from the estimated range of $2.5 to $24 million fix it costs estimated by HUD, the
Blackfeet Tribe, and the Housing Authority, although when they petitioned for relief, the
Plaintiffs were not interested in monetary damages, but sought specific relief by HUD in meeting
its statutory and regulatory duties to provide safe, adequate and sanitary housing.

Conclusion
What has happened in the case of the Glacier Homes residents and the Blackfeet Nation
is a result of a failure to recognize the historical, political, and economic realities facing the tribe,
as well as the necessary perspective of the Blackfeet Nation, a government, in determining the
type of programming available for housing funds, as well as meaningful and informed
participation in finding an adequate solution for the residents of the Glacier Homes. The
Blackfeet government and BH were With economic limitations and lack of adequate resources,
Tribal governments are being asked to squeeze blood from a turnip, and set up to fail due to
broken promises by the federal government, economic deprivation, and unfunded and inadequate
infrastructure, rather than a failure of tribal institutions to fulfill their responsibilities to govern
and provide for their people. The Blackfeet Tribe was given the authority to make housing
decisions, only to be forced to operate without adequate resources.

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This has resulted in a system that is not only unjust, but effectively prevents access to
justice for Indian populations within this system that is less likely to follow a rule of law or path
of legal precedent, instead following a path of pragmatism as determined by the conquering
nation with the authority and resources to have the final say. The colonial pragmatic rule-making
of the Supreme Court has the effect of colonizing Indian tribes through the judicial rule-making
that insidiously chips away at tribal sovereignty by attempting to create bright line rules out of
the confusion the Court has created in federal Indian law. The Supreme Courts colonial
pragmatism may terminate federal Indian law as we know it and continue the federal legacy of
undermining the rights of Indian tribes and tribal sovereignty. Justice for Indian people in
federal Indian law cases are difficult to predict, except that it is unpredictable, and is guided
more by the holes punched in federal Indian law, resulting in a boondoggle of case law claiming
to draw sound legal conclusions, but is more driven by economic deprivation and authority given
without adequate resources, rather than a failure of Tribal institutions and people fighting to
actualize the sovereignty and self-governance that was promised to them.
Indian law scholars have been decrying the lack of principled decision making
about federal Indian law for decades. Nothing stops the courtno constitutional
provision, common law principle, or anything elsefrom working radical
transformation of federal Indian law at any moment. 88
The Marceau case law reflects this historical pattern of case law seemingly less guided by
existing rules and legal precedent and in the words of 8th Circuit Judge Wollman more likely to
get made up along the way.89

88 Fletcher, supra n. 4 at 584-585.


89 Audio tape: Oral Argument, Prescott v. Little Six, Inc., 387 F.3d 753 (8th Cir. 2004) (comment by Judge Wollman at 14:5)

(available at http://www.ca8.uscourts.gov/general-search (follow the "Case Number" link, search for case number 03-3702).

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Nelsons legal analysis outlines the 9th Circuits outright failure to follow the rule of law
and established legal precedent regarding housing in Indian Country, as well as the federal trust
responsibility of the government to provide safe, decent, and sanitary housing for the residents of
Glacier Homes.90 Instead, the 9th Circuit has carried on the tradition of ignoring federal Indian
law and looking to constitutional issues to find a bright line answer outside of federal Indian law.
Federal Indian law principles articulate that the government has a trust responsibility to Indian
nations, as spelled out in case law precedent and the network of laws that has developed over
centuries to guide federal Indian policy with unique individual Indian Tribes. To ignore federal
Indian law precedent that recognizes Indian tribes unique sovereign status, individual treaties,
the federal governments colonizing history, and the government-to-government relationship
among Indian tribes and the U.S. government, is in effect a colonizing practice of blatant
disregard for Indian rights and tribal sovereignty.
The colonial pragmatism of the Supreme Court is creating dangerous legal precedent for
federal Indian law, effectively leading it down a path of termination. As a result, tribal advocates
are hesitant to bring federal Indian law cases to the Supreme Court, for fear of exacerbating this
trend.91 Any attempt to curb this trend calls for an honest recognition of the colonizing trend of
judicial decision-making, responsibility by federal court judges to admit the reasoning behind the
incoherence within federal Indian law, and courage of the bench to issue opinions on federal

90 Nelson, supra n. 36.


91 After two Supreme Court opinions struck crippling blows to tribal sovereignty and tribal jurisdiction during the 2000 term,

Atkinson Trading Co. v. Shirley and Nevada v. Hicks, Tribal Leaders met in Washington, D.C., and developed the Tribal Supreme
Court Project as part of the Tribal Sovereignty Protection Initiative with a purpose to strengthen tribal advocacy before the U.S.
Supreme Court by developing new litigation strategies and coordinating tribal legal resources, and to ultimately improve the winloss record of Indian tribes. Native American Rights Fund, Tribal Supreme Court Project, website (http://sct.narf.org/) last
accessed 12/22/15.

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Indian law issues based upon long-established federal Indian law principles, and for tribal
advocates to continue to demand the proper legal standard.
Justice and access to justice requires that policies and programs must meet the standard of
fairly considering and representing the situations of all affected parties, as well as their capacity
to participate in negotiations. These struggles reflect historical, cultural, social, and political
issues that are experienced locally and on a daily basis. An analysis of why what happened to the
Marceau Plaintiffs is particularly necessary as it is one of many reflections of the injustices
inflicted upon Indian Tribes in the United States. Historically, the United States government has
been responsible for shaping diplomatic relationships with Indian tribes, shaping and making
promises, that are repeatedly broken, with little, if any, accountability. It is as obvious as the
mold growing in the basements of the MHHOP homes on the Blackfeet Reservation, that the
federal government's actions and inactions have enabled environmental injustices on Indian
reservations. Justice and access to justice would better be served with a government-togovernment relationship between every Indian Tribe and the federal government, in their
agreements and in the treatment of adjudication of Indian law cases. Further, the culture, values,
and historical situation of each tribe should be adequately represented in the decision-making
process, program/project development, and contractual relationships among individual Indian
Tribes and the federal government. And until then, Tribal governments must contest those federal
policies and programs that impinge on their sovereignty, flooding the federal courts with federal
Indian law cases, thereby making it impossible for courts to continue to chip away at federal
Indian law with their insidious paternalistic colonial pragmatism.

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Hydro Resources, Inc. v. U.S. EPA: A Case Study on Patchwork


Environmental Regulation in Indian Country
!

The disproportionately high health and environmental risks from pollution in Indian country
may derive more from jurisdictional uncertainties hampering effective regulatory control than
unfair program implementation, and their solution may lie in tribes inherent power over their
territories.92

Introduction
When federal environmental laws were being developed forty years ago, nearly all of
them forgot to mention Indian Country. This created a regulatory gap in environmental law and
led Congress to start adopting amendments, amendments, patchwork-style, to try and fit Indian
tribes into the United States cooperative federalism model of environmental regulation. Several
environmental laws adopted treatment as states (TAS) provisions for environmental regulation
in Indian Country. The question remains as to whether or not tribal interests are met within the
federal governments western model of environmental regulation. Is this just a form of federal
paternalism or does it provide an opportunity for tribes to self-determine their destinies, even if
only as limited within the confines of federal environmental law?
A key component of environmental justice is that certain communities within the larger
society lack an adequate voice to ensure their interest in health and welfare are respected on par
with others desires, contributing to the creation of inequitable environmental risks.93 By
examining the 10th Circuit case, Hydro Resources, Inc. v. U.S. EPA (HRI III),94 this paper

92 Grijalva, supra n. 2 at 4.
93 Id. at 188.
94 HRI III, supra n. 3.

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attempts to determine whether or not tribal sovereignty and self-governance are promoted and
supported under the provisions of the Safe Drinking Water Act (SDWA).

In HRI III, the court

refused to give deference to the EPAs determination of what are Indian lands for the purposes of
Underground Injection Control (UIC) permitting under the SDWA, which may be contrary to
administrative law, and may have further negative repercussions for environmental regulation in
Indian Country. Although the EPA may be well-meaning in its federal environmental laws, HRI
III shows how gaps in federal policy over environmental regulation in Indian Country still exist
and can result in a continued disregard for tribal sovereignty, environmental paternalism, and the
perpetuation of environmental injustice in Indian Country, all in blatant disregard for federal trust
responsibility to Indian tribes.
Part I is an analysis of the history of environmental regulation in Indian Country. Part II
gives an overview of the Safe Drinking Water Act of 1974. Part III is a case summary of HRI III.
Part IV offers an analysis of the 10th Circuit Courts decision in HRI III and its impacts on EPA
administrative authority. Part V describes the importance of tribal sovereignty and deference to
tribes and the impacts of HRI III. As a result of these analyses, this paper concludes that the 10th
Circuit court should have given deference to the EPAs determination of Indian land under the
SDWA in interests of proper administrative law deference and under principles of federal Indian
law. It further argues that the EPAs administrative definition of Indian lands under the SDWA
may need to be changed to better reflect the unique jurisdictional aspects of a mobile and unitary
resource such as water as well as with greater deference and respect for Indian tribes ability and
inherent authority to regulate water quality as sovereign, self-governing nations.

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Part I: History of Environmental Regulation in Indian Country


Federal Environmental Regulations
When Congress began enacting environmental laws in the 1970s, it developed a
cooperative federalism model that acknowledged both the national interest in environmental
management as well as states historic responsibilities for primary public health and welfare.95
States were to satisfy minimum federal standards but could set standards mores stringent than the
federal provisions.96 This cooperative federalism model respected states value judgments, but
only to the extent they supported the national interest in environmental protection.97 However,
none of these early environmental laws mentioned Indian Country. This begged the question:
does congressional silence mean the laws do not apply to Indian Country, thereby removing EPA
implementation authority and frustrating congressional intent for comprehensive coverage? 98
The Supreme Court implied that federal laws of general applicability applied to Indians and
Indian Country unless Congress said otherwise.99 However, the Courts consistent references
to states limited Indian Country authority suggested the impotence of the cooperative federalism
approach in view of Congress failure, creating an apparent regulatory void.100

95 Grijalva, supra n. 2 at 14.


96 Id.
97 Id.
98 Id. at 16.
99 Id. (citing Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960)).
100 Id. at 184.

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Environmental Regulation in Indian Country


Environmental regulation in Indian Country is complicated due to the jurisdictional
complexities inherent in federal Indian law. Indian Country encompasses certain former
Indian lands later conveyed to non-Indians by federal patent or other means.101 However, the
Supreme Court has held that laws of general applicability apply to Indians and Indian Country
unless Congress has said otherwise.102 But, state laws generally are not applicable to Indians or
an Indian reservation except where Congress has expressly provided that State laws shall
apply.103
Because states were not given authority to regulate environmental laws on Indian
reservations, EPA responded with a federal direct implementation of Indian reservation programs
to try to fill in some of the regulatory gaps that were created. 104 In 1973, when the EPA
promulgated rules stating the EPA would directly implement the water permit program over
Indian activities on Indian lands, rather than delegate to the states, and the 1984 Policy for the
Administration of Environmental Programs on Indian Reservations represented the shift toward
tribal involvement in environmental regulatory governance. 105 Contemporary federal
environmental law permits tribal environmental enforcement and decision-making, as long as its

101 18 U.S.C. 1151 (2006).


102 Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960).
103 McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 170-171 (1973).
104 Grijalva, supra n. 2 at 17.
105 Id. (citing National Pollutant Discharge Elimination System, 38 Fed. Reg. 13,528, 13,530 (May 22, 1973) (codified at 40

C.F.R. 125.2(b)); Rosser, supra n. 1 at 509; EPA, Policy for the Administration of Environmental Programs on Indian
Reservations, Nov. 8, 1984.

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within federally-defined parameters.106 However, Indian tribes do not have the power to set their
own terms for reservation environmental protection and must rely on a U.S.-centric decisionmaking process.107 Tribes have inherent power to govern their territories that can be limited by
federal law, but they do retain substantial authority over matters affecting tribal health and
welfare.108 Tribes must still operate within the existing federal system in the United States.
Environmental regulation in Indian Country is administered by a direct federal enforcement of
environmental law or the treatment as states (TAS) provision of some environmental laws.

Direct Federal Implementation


EPAs direct implementation thus remains the most prevalent form of environmental
regulation of the quality of Indian Country environment for the health and welfare of American
Indians.109 These federal permit programs are often generic; an administrative convenience of
national uniformity among federal programs and lack of adequate federal resources for
promulgating reservation-specific programs. 110 However, some programs are site-specific, like
under the Safe Drinking Water Act where the underground injection control program tailors
direct implementation activities to fit local needs and priorities communicated by tribal
governments.111 Because some tribes need time to develop the capacity to be able to run their
106 Rosser, supra n. 1, at 508.
107 Id. at 506.
108 Montana v. United States, 450 U.S. 544, 565-566 (1981); 56 Fed. Reg. 64,876, 64, 878 (1991).
109 Grijalva, supra n. 2 at 185.
110 Id.
111 Id.

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own environmental programs, they may not choose to seek primacy in protecting the
environment in their Indian Country. In these instances, the EPA will administer the
environmental programs just as it would when a state does not take on the primary role of
environmental regulator. Direct federal implementation of EPA environmental programs ensured
an easily-identifiable and experienced authority existed for issuing permits and reduced the
incidence of unauthorized regulatory incursions by states and could act as precursors to
environmental management.112

Treatment as States Standard


Under a treatment as a state (TAS) standard, Tribes can promulgate and enforce
standards more stringent than necessary for protecting the minimum federal fishable/
swimmable goals, redesignate their airsheds to Class I, and establish underground injection
programs stronger than the federal minimum.113 TAS was the EPAs solution to the problems of
filling in the gaps of federalism and determining the extent of tribal powers.114 Three federal
regulatory environmental laws have TAS provisions: the Safe Drinking Water Act, the Clean
Water Act, and the Clean Air Act. In order for a tribe to apply for TAS status, the Tribe must:
demonstrate it is federally-recognized; has a governing body exercising substantial governmental

112 Id. at 194.


113 Id. at 190.
114 Rosser, supra n. 1 at 510.

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powers and is reasonably capable of carrying out its administrative functions; and meet a
showing of jurisdiction.115

PART II: SAFE DRINKING WATER ACT OF 1974


The SDWA authorizes programs to protect water consumed by people through the public
water system (PWS) and underground injection control (UIC) programs.116 The PWS program
has set standards for public water systems to make sure water is safe for human consumption and
includes PWS operated by tribes. 117 The UIC program seeks to protect drinking water aquifers
from being contaminated by underground injection processes, like the extraction of oil or gas.118
The SDWA directed the EPA to publish regulations for state underground injection control
programs with minimum requirements to prevent the endangerment of underground sources of
drinking water.119 The 1974 Safe Drinking Water Act was silent on implementation in Indian
Country and furthermore, the SDWA referred to Indian tribes as municipalities.120 Congress
added a TAS amendment to the SDWA in 1986 that authorized tribes to act as primary regulators
and as a result, Tribes may assume primary responsibility for public water systems and
underground injection control programs.121

115 33 U.S.C. 1377(e) (2006); 42 U.S.C. 300j-11(b)(1) (2006); 42 U.S.C. 7601(d)(2) (2006).
116 42 U.S.C. 300f, 300j-11 (2006).
117 40 C.F.R. 141.2, 141.3, 142.3.
118 40 C.F.R. 145, 146, 147.
119 Grijalva, supra n. 2 at 48.
120 42 U.S.C. 300f(10) (2006).
121 42 U.S.C. 300j-11(a) (2006).

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The TAS amendments to the SDWA create tribal regulatory roles identical to state roles.122
However, the criteria does require more of the tribes than the states, including evidence of the
states technical, governmental, and legal capabilities for implementation.123 Under the SDWA,
a tribe can be given primary regulator status if they are federally recognized, have a government
with substantial duties and powers, and are reasonably capable of carrying out the functions
necessary under the Act, and those functions are within the area of the Tribal Governments
jurisdiction.124 This authority is not limited to reservations; the SDWA is not intended to, and
does not, preclude a Tribe from applying for treatment as State with respect to any lands over
which it believes it has jurisdiction.125 Once there is a showing of jurisdiction, then the Tribe
can apply to the EPA for specific program authority and EPA can grant full primary
responsibility, except as specifically provided otherwise.126 If the EPA finds that it is
inappropriate, administratively infeasible or otherwise inconsistent with the purposes of the
SDWA to treat the Tribe as a state, the EPA can promulgate other means to administer the
provision in a manner that achieves the same purpose and the Tribe will be treated as a
municipality.127

The Underground Injection Control Program (UIC)


122 Grijalva, supra n. 2 at 59.
123 Id.
124 42 U.S.C. 300j-11(b)(1) (2006); 40 C.F.R. 142.72; 40 C.F.R. 145.52.
125 53 Fed. Reg. 37,396, 37,400 (1988).
126 40 C.F.R. 142.3(c); 40 C.F.R. 145.1(h).
127 42 U.S.C. 300j-11(b)(2), 300f(10) (2006).

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If a tribe does not have a UIC program, the EPA will prescribe one for the tribe.128 The
EPA can regulate injection wells on all Indian lands, meaning all lands within Indian
Country. 129 The EPA applies generic federal UIC program on all Indian lands in states that
administer UIC programs on non-Indian lands. 130 The state UIC programs do not apply to Indian
lands, but tribes could not administer a UIC program under the SDWA until 1986; only the
federal EPA could administer a UIC program for Indian lands and they solicited comments on
how this process should work. Many commentators thought the existing state standard should
apply, but because a states legislative authority for its UIC program is often broader than the
federal authority, the EPA could not adopt many of their provisions.131 The EPA stated it is
preferable to maintain consistency within the Federal programs unless specific deviations are
necessitated by local conditions or Tribal concerns.132 But, the EPA will promulgate specialized
federal programs tailored to respond to the unique conditions and needs of Indian Tribes.133
These individualized programs often include selected provisions from state UIC programs that
are more stringent than the federal provisions.134
Indian lands under the Safe Drinking Water Act

128 42 U.S.C. 300h-1(e) (2006); 40 C.F.R. 145.21(g).


129 40 C.F.R. 144.2 (The EPA has adopted the definition of Indian Country found in 18 U.S.C. 1151 and set forth in 40

C.F.R. 144.3, for the purpose of defining Indian lands for the Direct Implementation Underground Injection Control (UIC)
program.).
130 53 Fed. Reg. 43,084 (1988).
131 Grijalva, supra n. 2 at 59.
132 Id.
133 53 Fed. Reg. 43,084, 43,096 (1988) ([m]odified programs may be developed for other Indian lands in the future at the

request of the Tribe.).


134 53 Fed. Reg. 43,096, 43,102 (1988).

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For the purposes of the SWDA, Indian lands are Indian Country as defined under 18
U.S.C. 1151, the federal criminal code.135 Section 1151 defines Indian Country as:
(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.136
Section 1151 is found in the criminal code, but applies to questions of tribal civil jurisdiction as
well.137 Because HRIs land was not on a reservation, nor was it an allotment, the Court looked
to determine if it fell within a dependent Indian community.138
According to Cohens Handbook of Federal Indian Law, 18 U.S.C. 1151(b) appears to
cover land outside of reservations and trust and restricted fee allotments; [g]enerally, when the
land at issue has been held in trust by the United States, or subject to a restriction on alienation, it
has been found to be a dependent Indian community.139 This includes lands that were held in
fee simple by the Santa Clara Pueblo in New Mexico prior to incorporation into the United States
and defined as Indian Country by Congress.140 It also includes the Reno Indian Colony that was
not part of a reservation, because it was validly set apart for the use of the Indians and was

135 40 C.F.R. 144.3.


136 28 U.S.C. 1151 (2006).
137 Alaska v. Native Village of Venetie, 522 U.S. 520, 526-527 (1998) (hereinafter Venetie).
138 Id.
139 Nell Jessup Newton, Cohens Handbook of Federal Indian Law, 3.04[2][c][iii] (Lexis Nexis, 2005 Ed.).
140 United States v. Sandoval, 231 U.S. 28, 46 (1913).

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under the superintendence of the government. 141 Furthermore, the intent of 1151 was to
avoid checkerboard jurisdiction of lands for enforcement purposes. 142
In Alaska v. Native Village of Venetie, a dependent Indian community is one what has
both a federal set-aside and a federal superintendence requirement.143 The Court determined
that Congress expressed its repudiation of trust status in the Alaska Native Claims Settlement Act
(ANCSA). Because ANCSA revoked the reservations status as trust land, Congress intended
that the land no longer be set aside for Indian use and therefore, the federal set-aside
requirement no longer applied.144 Furthermore, the federal government intended to end federal
superintendence by adopting ANCSA.145
According to the Court: [t]he broad federal superintendence requirement for Indian
Country cuts against these objectives, but we are not free to ignore that requirement as codified
in 18 U.S.C. 1151. Whether the concept of Indian Country should be modified is a question
entirely for Congress. 146 The Court distinguished Sandoval because lands were subject to
restriction on alienation and from McGowan because those lands were held in trust.147
According to Cohens Handbook of Indian Law, off-reservation trust or restricted lands set aside
for Indian use should be considered Indian country within the dependent Indian community

141 United States v. McGowan, 302 U.S. 535, 539 (1938).


142 Seymour v. Superintendent, 368 U.S.351, 358 (1962).
143 Venetie, supra n. 138 at 530.
144 Id. at 532-533.
145 Id. at 533.
146 Id. at 534.
147 Id.

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provision because they are by definition set aside for Indian use and subject to pervasive federal
supervision.148
If a determination of Indian Country land status is in dispute, the EPA will treat it as
Indian Country and will remove it from that status if it is later found to not be Indian land.149
This has been found to be a reasonable presumption in the 10th Circuit, due to the practical
problem of defining exact borders of Indian Country and in accordance with the trust
responsibility to tribes.150 However, in 2010, the 10th Circuit Court found that the HRI land in
question was not a dependent Indian community and therefore, subject to state regulatory
control.151

Part III: Case Summary of Hydro Resources, Inc. v. U.S. EPA


Background
In 1989, the New Mexico Environmental Department (NMED) approved a discharge
plan for underground injection by HRI at their mine located on property it owns in the
checkerboard region of northwestern New Mexico, not thinking it constituted Indian land. 152
The land at issue falls within the Navajo Church Rock Chapter, a political and social unit of the
Navajo Nation, with its boundaries and membership determined by the Tribe.153 It consists
148 Cohens Handbook, supra n. 140.
149 53 Fed. Reg. 43,096, 43097 (1988).
150 Hydro Resources, Inc. v. U.S. EPA, 198 F.3d 1224, 1244-1245 (10th Cir. 2000) (hereinafter HRI I).
151 HRI III, supra n. 3.
152 HRI I, supra n. 151 at 1234.
153 Id.

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mostly of land owned in fee by the United States, privately held lands, and Navajo Nation
lands.154 The region receives its checkerboard status because it consists of land owned by the
Navajo Nation, the state of New Mexico, individual Navajos, the federal government, and
private persons and entities, including HRI. The mine at issue is found on HRI-owned land,
located in the southeast quadrant of Section 8, Township 16N, Range 16W, in northeastern
New Mexico. The other three quadrants are owned in fee by the United States under the Bureau
of Land Management (BLM).155 All four sections surrounding Section 8 are Navajo Trust land,
as is a majority of the land surrounding Section 8.156
HRI sought to mine uranium on its Section 8 quadrant land and contemplated using an
underground injection system as part of its mining operations.157 . An underground injection
system pumps water into the ground and circulates that water in order to pull the ore to the
surface so it can be collected; oxygen is added to the native ground water from the ore body and
the water is continuously circulated until most of the uranium is recovered.158. The process is an
alternative to manual excavation where piles of rock are excavated and placed in piles above
ground.159 This type of mining requires an approved underground injection control (UIC) plan,

154 Id.
155 HRI III, supra n. 3 at 1137.; a map of the area can be viewed on the EPAs website: Final Determination of Indian Country

Status for UIC permitting, as Exhibit 1 of the Exhibits for ENDAUM and SRIC Comments, website (http://www3.epa.gov/
region9/water/groundwater/permit-determination.html) (last accessed on 12/21/15).
156 Environmental Protection Agency, Final Determination of Indian Country Status for UIC permitting, Exhibits for ENDAUM

and SRIC Comments, Exhibit 1: Land Status Map, website (http://www3.epa.gov/region9/water/groundwater/


determination_comments/exhibit1.pdf) (last accessed on 12/21/15). The map is of the Church Rock Chapter and its boundaries.
The map was prepared as part of the Church Rock Chapters Land Use Plan and included in the record before the Agency.
157 Id. at 1138.
158 Id. at 1138, n. 4 (citing R. 15c App. II at 1, 3-4).
159 Id. at 1138, n. 4 (citing 42 U.S.C. 300h(d)(1)(A)).

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so as to make sure that the injected fluids stay within the well and the intended injection zone
and avoid contamination of drinking water sources or otherwise adversely affect public health.160
Under the SWDA, the EPA has primary UIC authority, but it allows that authority to be
delegated to tribes and states.161
The SWDA authorizes the EPA to treat an Indian Tribe as a state for the purpose of
delegating responsibility for the UIC program if the Tribe shows it is a federally-recognized
tribe; it has a functioning government that carries out substantial governmental duties and
powers over a defined area; the enforcement responsibility is within the tribal governments
jurisdiction; and the tribe is reasonably capable of implementing the program consistent with the
terms of the SWDA and applicable regulations, per the EPA Administrators judgment.162 The
SWDA sets the standards the state UIC regulatory programs have to meet in order to obtain this
regulatory authority.163 In 1982, the EPA approved the standards for the New Mexico UIC
program and approved the NMED as the primary UIC permitting authority for New Mexico,
except for those wells on Indian lands. 164 The EPA delegated primary UIC permitting
authority to the Navajo Nation for lands within the Navajo Reservation, and for certain other
Navajo allotments and Navajo fee lands. 165

160 Id. at 1138.


161 42 U.S.C. 300h-1(b)(2) & 300j-11(b)(1)(B) (2006) (2006).
162 42 U.S.C. 300j-11(b) (2006).
163 42 U.S.C. 300h (2006); 40 C.F.R. 144.1(e).
164 HRI III, supra n. 3 at 1138 (citing 40 C.F.R. 147.1600-147.1601).
165 Navajo Nation; Underground Injection Control (UIC) Program; Primacy Approval, 73 Fed. Reg. 65,556-01, 65,558-65,560

(Nov. 4, 2008).

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The EPA has delegated its permitting authority in the State of New Mexico to the
NMED, except as to permits for mining activities on Indian lands.166 The EPA had developed
a direct implementation program for Indian lands in 1988.167 HRI owns the land in question in
fee; is uninhabited; and is not located inside any Indian reservation.168 HRI did not perceive its
property as Indian land and there was no EPA decision to indicate otherwise, therefore, HRI
began its UIC permitting process with the NMED.169 NMED agreed HRIs land was not Indian
land and approved its UIC permit in 1989. 170 NMED sought a mandatory aquifer exemption
from the EPA for HRIs mining activities since those activities contemplated the introduction of
contaminants into an aquifer and contamination of underground aquifers that could be used as
sources of drinking water is prohibited under the SDWA. 171 The EPA has adopted criteria for
exempting certain aquifers from SDWA requirements when they will never be used as sources
of drinking water.172
EPA approved NMEDs exemption, stating that the aquifer under HRIs land does not
currently serve as a source of drinking water and cannot be a source of drinking water now or in
the future.173 However, a jurisdictional dispute arose over the status of the Section 8 and Section

166 HRI III, supra n. 3 at 1136.


167 Grijalva, supra n. 2 at 63.
168 HRI III, supra n. 3 at 1136.
169 Id. at 1140.
170 Id.
171 Id. (citing 42 U.S.C. 300h(b) (2006)).
172 Id. (citing HRI I, 198 F.3d at 1233).
173 Id. (citing HRI I, 198 F.3d at 1234; 40 C.F.R. 146.4(a) & (b)).

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17 land and the Navajo Nation presented what the EPA considered to be a substantial argument
that Section 8 was within Indian Country. 174
In 2007, HRI and NMED sought review of this EPA assessment in the 10th Circuit (in
HRI I); they argued that Section 8 land was not a dependent Indian community under 18
U.S.C. 1151, and therefore UIC permitting authority was with NMED.175 The EPA delayed its
final land status determination because it needed more time to make a determination in light of
the Supreme Courts recent decision in Venetie.176 Before Venetie, 10th Circuit case precedent
utilized a two-step balancing test to identify a dependent Indian community under the
Watchman test.177 The first step required identification of the appropriate community of
reference.178 The second step required a determination of whether or not the community was a
dependent Indian community. 179 In Venetie, the Supreme Court held that a dependent Indian
community refers to a limited category of Indian lands that are neither reservations nor
allotments and that satisfy two requirements: they have been set-aside by the Federal
Government for the use of the Indians as Indian land and they must be under federal

174 Id. (citing HRI I, 198 F.3d at 1235).


175 Id.
176 Id. at 1140-1141 (referring to Alaska. v. Native Vill. Of Venetie Tribal Govt, 522 U.S. 520 (1998)).
177 Id. at 1141 (citing Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995)).
178 Id. (The community of reference step considered three factors: (1) the geographical definition of the area

proposed as a community; (2) the status of the area in question as a community; and (3) the community of
reference within the context of the surrounding area. (citing United States v. Adair, 111 F.3d 770, 774 (10th Cir. 1997);
Watchman, 52 F.3d at 1543-1544.)
179 Id. (This considered the balancing of four more factors: (1) whether the United States has retained title to the lands which it

permits the Indians to occupy and authority to enact regulations and protective laws respecting the territory; (2) the nature of the
area in question, the relationship of the inhabitants in the area to Indian tribes and to the federal government, and the established
practice of government agencies toward the area; (3) whether there is an element of cohesiveness manifested either by economic
pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality; and (4) whether such lands have
been set apart for the use, occupancy and protection of dependent Indian peoples. (Watchman, 52 F.3d at 1545))

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superintendence.180 In HRI I, a panel of the 10th Circuit held that the EPAs analysis of the land
status of HRIs Section 8 land was not yet ripe for review and therefore remanded it back to the
EPA for a final determination of the legal status of HRIs land.181 In the interim, the 10th
Circuit accepted EPAs assertion of authority over lands whose Indian Country status was in
dispute.182
This disputed land is located at the site of the United States largest spill of radioactive
waste materials when a berm containing uranium ore tailings breached and flooded 100 million
gallons of hazardous liquids and over 1,000 tons of radioactive solid wastes on the water and
land in the region.183 HRI bought the uranium mine site from United Nuclear Corporation and
sought injection permits and exemptions from the SDWAs prohibition on contaminating
groundwater, asserting that the aquifers beneath the Church Rock mine would never be used for
drinking water.184
The EPA solicited comments from interested parties and received them from the Navajo
Nation, the State of New Mexico, HRI, and others.185 EPA issued a final land status
determination classifying the land as Indian land, thereby subject to the permitting authority

180 Venetie, supra n. 138 at 527.


181 HRI III, supra n. 3 at 1142 (citing HRI I, 198 F.3d at 1237, 1254).
182 Grijalva, supra n. 2 at 139 (citing HRI I, 198 F.3d at 1243).
183 Id. at 62.
184 Id. at 63.
185 Environmental Protection Agency, Final Determination of Indian Country Status for UIC Permitting: Land Status

Determination, 2 (Feb. 06, 2007) (available at http://www.epa.gov/region9/water/groundwater/determination_comments/hrisigned-land-status-determination-feb-07.pdf).

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from EPA.186 Agreeing with the Department of Interior that Section 8 land is part of a dependent
Indian community and therefore Indian Country under 18 U.S.C. 1151, the EPA concluded that
it is the appropriate agency to consider any future UIC permit applications under the SDWA for
that land.187 The DOI and the EPA determined that because the Supreme Court in Venetie was
not presented with the question of the proper community-of-reference and did not speak directly
to the propriety of a community-of-reference analysis, Tenth Circuit precedent continues to
require a community-of-reference analysis. 188
HRI petitioned the 10th Circuit for review and argued that Venetie abrogated the
Watchman test that the EPA relied upon in its determination that Section 8 was a dependent
Indian community and therefore Indian Country, thereby making the EPA determination
improper.189 HRI said that because of Venetie, 1151(b) requires a court to ask only whether
the land in question is set aside for Indian use and federally superintended, no more.190 In
HRI II, the 10th Circuit panel rejected HRIs argument and held that the Watchman test survived
Venetie, stating, Venetie abrogated a Ninth Circuit test that embraced many of the same factors
that are part of the Watchman test,191 thereby upholding EPAs land status determination.192

186 Id.; HRI III, supra n. 3 at 1142.


187 Environmental Protection Agency, supra n. 199 at 3 (citing 53 Fed. Reg. 43096, 43097 (Oct. 25, 1998)).
188 Id. at 4.
189 HRI III, supra n. 2 at 1143.
190 Id. at 1143.
191Hydro Resources, Inc. v. Environmental Protection Agency, 562 F.3d 1249, 1261 (10th Cir. 2009), (citing HRI I, 562 F.3d at

1249) (hereinafter HRI II), opinion vacated on rehearing en banc by HRI III.
192Id.

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In HRI III, HRI petitioned the 10th Circuit for a rehearing en banc, asking whether or not
Watchmans community of reference test remains an appropriate part of 1151(b) analysis after
Venetie, suggesting that HRI I opened a split of authority within the 10th Circuit: HRI I
suggested that the community of reference survived Venetie, whereas a previous panel193 in the
court analyzed a 1151(b) claim without reference to Watchmans community of reference
analysis, asking only Veneties two questions.194 The 10th Circuit granted HRIs petition for en
banc review.195

9th Circuit Opinion Summary:


Hydro Resources, Inc. v. Environmental Protection Agency (HRI III)
HRI argued that its Section 8 land, by itself, is not a dependent Indian community under
1151(b). 196 EPA and the Tribe argued that the lands were Indian Country because the social
and political affinities in the area made it part of a larger dependent Indian community.197
Therefore, the EPA determined it was correct when it considered all of the Church Rock Chapter
in concluding Section 8 was a dependent Indian community.198 The Court, referencing Venetie,
found that because HRIs land was neither explicitly set aside for Indian use nor federally
superintended, the land did not fall within a dependent Indian community within the criminal

193 HRI III, supra n. 3 at 1143 (citing United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999)).
194 Id. (referencing New Mexico v. Frank, 52 P.3d 404, 408 (N.M. 2002)).
195 HRI III, supra n. 3.
196 Id. at 1170.
197 Id. at 1139.
198 Id. at 1170.

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jurisdiction definition of Indian Country under 1151(b), used by the EPA under the
SDWA.199 Though EPA has chosen, for now at least, to link its SDWA permitting authority to
the scope of a criminal statute, it may not have to live with this regulatory decision forever. 200
Regarding the SWDA jurisdiction in HRI III, the court stated that the Venetie holding
ties the jurisdictional determination to the proper hitch: the will of Congress.201 It held that
the Venetie Court rejected the Ninth Circuits multi-factor test for determining if an area of land
constitutes a dependent Indian community and held that a two-part test should determine if the
land in question is a dependent Indian community.202 Citing the holding in Venetie, the Court
held the proper test to determine claims of jurisdiction under 1151(b) requires that the lands
have been set aside by the Federal Government for the use of the Indians as Indian land and
they must be under federal superintendence. 203 The court determined it had authority to review
the EPAs decision under the SDWA204 and since the SDWA did not supply a standard of review,
deferred to the default rule under the Administrative Procedure Act (APA).205 The court
recognized that judicial deference is given to agencies interpreting ambiguities in statutes that
Congress has delegated to their care, and that this includes statutory ambiguities affecting the

199 Id. at 1166.


200 Id. at 1160.
201 Id. at 1153.
202 Id. at 1168.
203 Id. at 1148 (quoting Venetie, 522 U.S. at 527 (1998)).
204 Id. at 1145 (citing 42 U.S.C. 300j-7(a)(2)).
205 Id. (citing 5 U.S.C. 706(2)(A)).

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agencys jurisdiction.206 But, the court stated that courts cannot give the same deference to an
agencys interpretation of a statute lying outside the compass of its particular expertise and
special charge to administer.207
In a 6-5 opinion, the 10th Circuit Court held that because HRIs land was neither
explicitly set aside for Indian use nor federally superintended, it follows that, as a matter of law,
the land does not qualify as Indian Country under 1151(b).208 Furthermore, the court held that
because Section 1151 does not fall within EPAs expertise or charge to administer because it is
not about environmental regulation but the geographic parameters of federal and tribal criminal
prosecutorial authority. 209 In dicta, the Court mentions that linking EPA regulatory authority to
a criminal jurisdiction statutory definition may prove well for prosecutorial authority over
particular tracts of land, it may prove less satisfactory when it comes to allocating regulatory
authority over aquifers running beneath those lands. Crimes, after all, usually occur on land, not
aquifers.210 The majority went even further and suggested that the EPA may seek to avoid
these difficulties by unhitching its UIC permitting authority from 1151 because the statutes
terms as a matter of law do not support a finding that HRIs land is located in a dependent
Indian community.211

206 Id. at 1145-46 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984)).
207 Id. at 1146 (citing Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n. 9 (1997); Adams Fruit Co. v. Barrett, 494 U.S. 638,

649 (1990); Crandon v. United States, 494 U.S. 152, 174 (1990) (Scalia, J., concurring in the judgment)).
208 Id. at 1166.
209 Id. at 1146.
210 Id. at 1166.
211 Id.

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Judge Ebels Dissenting Opinion


The dissenting opinion by Judge Ebel (and joined by 4 other judges), argued that the
Venetie Court did not properly address how to determine the land in question; the court should
have used the community-of-reference test previously used in the 10th Circuit to establish the
appropriate community before determining whether that community is dependent and
Indian.212 The dissent argued that Indian Country as a dependent Indian community must
mean something different than subparts (a) and (b) of 1151: subpart (a) refers to land in a
reservation and subpart (c) refers to Indian allotments. 213 Therefore, dependent Indian
communities refers to land other than reservation land or allotted lands.214
The dissent argued that the purpose of 1151 provides guidance for community and
that the law provides that determining community requires a contextual analysis that may
produce different outcomes, depending upon the community in which the test is applied, rather
than a parcel-by-parcel analysis favored by HRI.215 The dissent argued that since the purpose
of 1151 was to avoid (or smooth out) checkerboard jurisdiction,216 so as to reduce difficulties

212 Id. at 1168.


213 Id. at 1171.
214 Id. (citing Venetie, 522 U.S. at 527; Okla. Tax Commn v. Sac & Fox Nation, 508 U.S. 114, 123 (1993) (both concluding that

dependent Indian communities refers to a limited category of Indian lands that are not reservations or allotments)).
215 Id. (citing Miller v. California, 413 U.S. 15, 32 (1973)(It is neither realistic nor constitutionally sound to read the First

Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas,
or New York City.); McCreary County, Ky. v. ACLU, 545 U.S. 844, 866 (2005) (when considering whether a government action
violates the Establishment Clause of the First Amendment, courts consider whether a reasonable observer, aware of the history
and context of the community and forum in which the religious display appears, would consider the action as endorsing
religion.)).
216 Id. at 1172 (citing Felix S. Cohen, Handbook of Federal Indian Law, 3.04 [2][c][iii] at 194 n.429 (citing Seymour v.

Superintendent of Was. State Penitentiary, 368 U.S. 351, 358 (1962)).

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in determining criminal jurisdiction in areas with state, federal and Indian land ownership, this
shows that a community approach, rather than parcel-by-parcel approach, should be used to
determine whether land is Indian Country under 1151(b) and that the majoritys opinion that
title alone is enough to determine if a parcel of land is in Indian Country would completely
eviscerate this congressional purpose.. 217 Judge Ebel stated that the checkerboard region of
New Mexico has Indian allotments lying cheek by jowl with lands owned by private persons or
the state or the federal government, and Congress sought to mitigate this issue with 18 U.S.C.
1151(c):
Because the checkerboard problem is caused by title, Congress would not have
sought to remedy the problem by relying exclusively on title to determine whether
land is Indian country. Furthermore, if Congress had intended title to be
determinative, it easily could have said so in 1151. Instead, two of the three
subsections of the statute ( 1151(a) and (c)) clearly indicate that title is not
determinative, and the third subsection ( 1151(b)) uses a word, communities,
that, as discussed above, is inconsistent with a focus solely on title. In fact, the
only time Congress alludes to title at all in the statute is to state that title is not
determinative of lands Indian country status. 218
Judge Ebel refers to the Indian liquor law Indian Country definition, 18 U.S.C. 1154(c),
which starts with the same definition of Indian Country as 1151, but then restricts the term
by excluding fee-patented lands in non-Indian communities or rights-of-way through Indian
reservations from Indian Country status.219 He argues that the checkerboard of lands in this
region, and other Indian lands, is to blame for jurisdictional uncertainties, and this is why
Congress sought to mitigate this reality with 1151(c): the status of a particular parcel of land
217 Id. (citing Cohen, supra n. 140, Ch. 1 D3c, at 39 (Section 1151 was intended to reduce earlier difficulties which had arisen

from the checkerboarding of land ownership and rights-of-way).


218 Id. at 1173.
219 Id. (citing 18 U.S.C. 1154(c) & 1156 (emphasis added)).

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as fee-patented is not determinative of its status as Indian country under 1151, or else there
would have been no need to specifically exclude such lands from the Indian country definition
in 1154.220

Part IV: HRI III Analysis & Administrative Agency Deference


In HRI III, the court determined that no standard of deference applied to the EPAs
decision that held the Section 8 land was a dependent Indian community because EPA was not
the agency charged with administering Section 1151 by Congress.

Furthermore, since the EPA

did not ask for a particular deference standard by the court, the court did not need to consider any
deference to the EPAs decision and should review the case de novo. This holding is not only
contrary to established precedent in the 10th circuit, but it can prove problematic for the future
validity of agency decisions and the future of environmental regulations in Indian Country.
Furthermore, the decision runs counter to the canons of construction in Indian law that adds an
additional dynamic to environmental regulation and hold that treaties and statutes should be
interpreted liberally in favor of the Indians. Thus, this decision adds an additional dynamic to
environmental regulation.

The EPA Should Have Been Given Administrative Deference by the 10th Circuit Court
Under the SDWA, a petition for review of an agency action can be filed in the circuit
directly affected by the action.221 The courts must first use the traditional tools of statutory

220 Id.
221 42 U.S.C.A. 300j-7(a)(2) (2006).

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construction and examine if the statute directly [speaks] to the precise question at issue. 222 If
so, follow the statutes instructions, if Congress has not spoken, defer to the agencys
interpretation if it is reasonable.223 According to Indian environmental law professor, James
Grijalva, judicial deference to administrative interpretations of a statute comes into play once
courts are assured the agency has authority to act in the first instance.224 The default applicable
standard of review is found under the Administrative Procedure Act (APA): the court shall hold
unlawful and set aside agency action, findings, and conclusions, found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.225 The court is to consider
whether the agency abused its discretion (was arbitrary and capricious) in exercising the quasilegislative authority delegated to it by Congress, or, on the other hand, whether its decision was
based on a consideration of the relevant factors and (was not the product of) a clear error of
judgment.226 Not in accordance with the law means any law, and not merely those laws
that the agency itself is charged with administering.227
When reviewing an agency position, the courts first inquiry should always be
congressional intent and if that clarity is lacking, the court is not to substitute its independent

222 Backcountry Against Dumps v. Environmental Protection Agency, 100 F.3d 147, 150 (D.C. Cir. 1996) (citing Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)).
223 Id. (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984)).
224 Grijalva, supra n. 2 at 140.
225 5 U.S.C. 706(2)(A) (2006).
226 Weyerhauser Co. v. Costle, 590 F.2d 1011, 1025 (D.C. Cir. 1978) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 416 (1971); Vermont Yankee Power Corp. v. National Resources Defense Council, 435 U.S. 519, 549 (1978)).
227 HRI III, supra n. 3 at 1145 (citing FCC v. NextWave Pers. Commcns. Inc., 537 U.S. 293, 300 (2003)).

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judgment for that of a previously announced agency position, particularly if involving complex
regulatory schemes where policies are in dispute.228 Throughout the twentieth century,
courts addressing competing views of the scope of regulatory statutes vacillated
between exercising independent judgment on the questions of law presented and
giving preferential weight to the decisions of the administrative agencies charged
with implementing those statutes. 229
Courts afford considerable deference to agencies interpreting ambiguities in statutes that
Congress has delegated to their care and this includes statutory ambiguities affecting the
agencys jurisdiction.230 If there is ever a regulatory gap, Congress defers to the administrative
agency, so that the question for the court is simply whether or not the agencys interpretation of
the ambiguous statute was reasonable and not whether other policy positions (argued by those
challenging the agency) might be more appropriate in the courts view.231
There are six administrative law doctrines that courts have applied to a wide variety of
agency decisions. 232 The court in HRI III mentioned the Chevron and Skidmore doctrines, and
held that they did not apply. Under the Chevron doctrine, a reviewing court must uphold any
reasonable agency construction of an agency-administered statute. 233 Under Chevron, the court
first looks to whether Congress has directly spoken to the precise question at issue and if the
statute is silent or ambiguous, the court determines whether the agencys answer is based on a

228 Grijalva, supra n. 2 at 37 (citing Chevron, U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 (1984)).
229 Id. at 36.
230 HRI III, supra n. 3 at 1145-1146.
231 Grijalva, supra n. 2 at 36.
232 Richard J. Pierce, Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin L. Rev. 77, 78 (2011).
233 Id.

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permissible construction of the statute. 234 The Skidmore doctrine was the commonly applied
doctrine applied to review agency statutory interpretations, before Chevron; some argue it may
have been displaced by the Chevron doctrine, or is at least more deferential than Chevron. 235
Skidmore states that the weight of an agency decision will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power to
control.236 The de novo review is an approach that does not give any deference to the agency;
the court resolves the issue before it as if the agency had never addressed the issue.237
In Chevron, the Court discussed how the EPA considered varying interpretations of the
term source and how that had no bearing on whether or not the court should give deference to
the agencys interpretation of the statute and further, it discussed how in order to engage in
informed rulemaking, the EPA must consider varying interpretations and the wisdom of its
policy on a continuing basis.238 Richard J. Pierce, Jr., argues that step one of the Chevron
doctrine serves as a reminder that an agency interpretation of a statute cannot be reasonable if it
is inconsistent with clear legislative intent and both agencies and reviewing courts must
attempt to determine what Congress intended when it included a particular provision in an
agency-administered statute. 239 He states the Skidmore doctrine, is a reminder that the courts
234 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-843 (1984).
235 Pierce, supra n. 233 at 79.
236Id. (Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
237 Id. at 83.
238 Chevron, supra n. 235 at 863.
239 Pierce, supra n. 233 at 96.

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should consider the thoroughness of the agencys reasoning process as part of the judicial task of
deciding whether the agencys action is reasonable. 240 Further, he argues that the court should
acknowledge that the de novo review does not exist and never has; [i]t would make no sense for
a court to ignore completely an agencys reasons for acting as it did.241 According to Pierce,
[o]nce some other institute of government has devoted time and energy to resolution of a
dispute, no court should ignore that institutions reasons for resolving the dispute as it did.242
He further argues that the six administrative law doctrines of review create confusion in the
courts and for scholars, and identifies three common elements of the doctrines: consistency with
applicable statutes, consistency with available evidence, and quality of agency reasoning.243 He
argues that these elements should be the new standard, while also including a consideration of
the consequences of the action under review; he sums it up that a reviewing court must uphold
any reasonable agency action.244
The same should be said for the EPAs interpretation of Indian lands for the purposes of
the SDWA. True, they are working from the criminal jurisdictional statute for Indian Country,
but, whether under Chevron, Skidmore, or a generalization of all the administrative law standard
of review doctrines, the courts refusal to defer to the thorough decision-making of the EPA is
contrary to the purpose of administrative agencies and administrative law. The courts
application of de novo review is inappropriate because it gives no deference to agency decisions
240 Id.
241 Id.
242 Id.
243 Id. at 98.
244 Id. at 95-96, 98 (citing David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135, 186-187 (2010)).

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that are contrary to the purpose of administrative agencies; if courts are able to automatically
overturn decisions of an agency that has been charged with the administration of specialized
areas of environmental law, like the environment, the point of administrative agencies is moot.
The HRI III court dismisses any Chevron deference since the EPA did not claim Chevron
deference, and it was not directly charged with administering Section 1151. The court in HRI III
cites Metropolitan Stevedore Co. v. Rambo245 and Adams Fruit Co., Inc. v. Barrett246 to support
its position that the EPA is not entitled to deference under its interpretation of Section 1151.247 In
Adams Fruit, the court stated that a precursor to deference under Chevron is a congressional
delegation of administrative authority and the court would not defer to the Secretary of
Labors view of the scope of 1854 because Congress has expressly established the Judiciary
and not the Department of Labor as the adjudicator of private rights of action arising under the
statute.248 In Metropolitan, the court did not defer to the Office of Workers Compensation
Programs (OWCP) Directors (Director) interpretation of the APAs provision for allocating the
burden of persuasion under the preponderance of the evidence standard because: (1) [t]he APA
is not a statute that the Director is charged with administering; (2) [t]his interpretation does not
appear to be embodied in any regulation or similar binding policy pronouncement to which such
deference would apply; and (3) [t]he interpretation is couched in a logical non-sequitur.249
The court agreed that the Director is in charge with interpretation of the Longshore and Harbor
245 521 U.S. 121, 137 n. 9 (1997).
246 494 U.S. 638, 649 (1990).
247 HRI III, supra n. 3 at 1146.
248 Adams Fruit, 494 U.S. at 649.
249 Metropolitan, 521 U.S. at 137 n 9.

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Workers Compensation Act (LHWCA) and the court stated that the Directors interpretation of
the LHWCA brings persuasive force to the courts conclusion.250 In its reasoning that the APA is
not a statute that the Director is charged with administering, the court refers to a dissent in
Ardestana v. I.N.S. and states that the courts have indicated that reviewing courts do not owe
deference to an agencys interpretation of statutes outside its particular expertise and special
charge to administer.251 That court held that where a statute, like the APA, applies to all
agencies and is not administered by any one in particular deference to the interpretation by a
particular agency is inappropriate.252
In its reasoning that the agencys interpretation does not appear to be embodied in any
regulation or similar binding policy pronouncement to which such deference would apply, the
court references Smiley v. Citibank (South Dakota), N.A.253 That court stated that the Chevron
deference to the reasonable judgments of agencies with regard to the meaning of ambiguous
terms in statutes they are charged with administering extends to the Comptroller of the
Currency with regard to the meaning of banking laws because the Comptroller of the
Currency is charged with enforcement of banking laws to an extent that warrants the
invocation of [the rule of deference] with respect to his deliberative conclusions as to the
meaning of these laws.254

250 Id. at 135 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (giving weight to agencys persuasive interpretation,

even when agency lacks power to control.)


251 502 U.S. 129, 148 (1991) (citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-650 (1990)).
252 Id.
253 517 U.S. 735, 738 (1996).
254 Id. (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984); NationsBank of

N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-257 (1995)).

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The HRI III court dismisses any reference to Skidmore deference, in part because the EPA
did not claim Skidmore deference, and because the EPA has not claimed it has specialized
experience and broader investigations and information available to it than judges; the EPA has
not claimed any comparative experience or expertise over us in rendering a legal interpretation
of a criminal statute that Congress has never charged the Agency to administer and which we
have long experience applying.255 Skidmore says that a court in reviewing agency statutory
interpretations is to consider the rulings, interpretations and opinions of the Administrator
under the Act and while not controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which courts and litigants may
properly resort for guidance. 256
For the purposes of UIC permits, when the SDWA did not speak to permitting on Indian
lands, the EPA made a rule to define Indian lands as Indian Country as defined under 18
U.S.C. 1151.257 It is arguable that the court was incorrect when it held that the EPA could not
interpret dependent Indian communities. Unlike Metropolitan and Adams Fruit, the EPA was
not attempting to administer a statute outside of what was delegated to it by Congress, but the
EPA was making a determination of its own rule that defined Indian lands. There was a statutory
ambiguity as to what Indian lands were for the purposes of the SDWA and the EPA responded by

HRI III, supra n. 3 at 1146 n. 10 (when a party chooses not to pursue a legal theory potentially available to it, we generally take
the view that it is inappropriate to pursue that theory in our opinions).
255Id.
256 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
257 40 C.F.R. 144.2 (The EPA has adopted the definition of Indian Country found in 18 U.S.C. 1151 and set forth in 40

C.F.R. 144.3, for the purpose of defining Indian lands for the Direct Implementation Underground Injection Control (UIC)
program.).

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adopting the language in Section 1151. Contrary to what the majority stated in HRI III, the EPA
is not acting outside of its scope because it is not making a determination of jurisdiction based
upon criminal prosecutorial standards, but based upon its own expertise as the agency charged
with administering effective environmental laws. The EPA, not the court and certainly not
criminal law case law, is in a better position to determine what constitutes Indian land for the
purposes of regulating environmental laws. Because this interpretation is specific to the
administration of UIC permits, it should not have consequences for criminal cases. The court
should have given deference to the EPA determination and at least applied a deferential analysis.
The EPA was interpreting its own rule and the definition of Indian Country in light of not only its
expertise as the agency charged with administering environmental laws as the federal authority
identified as having the most expertise in environmental law, but also as directed under 10th
Circuit court precedent.

The EPA Properly Applied the Community-of-Reference Test to Determine Section 8 is a


Dependent Indian Community
The EPA is authorized by Congress to administer underground injection control permit
applications under the Safe Drinking Water Act and can delegate this permitting authority to
states or to Indian tribes treated as states. 258 In its land status determination for Section 8, the
EPA determined that the land in question is part of a dependent Indian community.259 In its
determination, the EPA analyzed the question of whether the Tenth Circuits community-of-

258 42 U.S.C. 300h-300h-8, 300j-11 (2006).


259 Environmental Protection Agency, supra n. 186 at 1.

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reference analysis was still valid after Venetie. 260 In Venetie, the Supreme Court held that based
on the specific language of ANCSA, Congress clearly showed it had no intention to set aside or
superintend the lands at issue and, therefore, Venetie was not a dependent Indian community. 261
The EPA agreed with the DOI opinion that the Tenth Circuit precedent has held that a community
of reference analysis is necessary.262 Based upon the Tenth Circuit precedent, the EPA
determined that the community-of-reference analysis identifies the geographic area over which
to apply Venetie, which specifies a two-part test of federal set-aside and federal superintendence,
but does not specify where to apply that test. 263 The HRI I court concluded, because the
Supreme Court in Venetie was not presented with the question of the proper community of
reference and did not speak directly to the propriety of a community-of-reference analysis, Tenth
Circuit precedent continues to require a community-of-reference analysis.264 The EPA offers a
thorough analysis of Tenth Circuit precedent and a logical justification for why the community of
reference analysis still applies.
In Venetie, the Supreme Court recognized that the Alaska Native Claims Settlement Act
(ANCSA) extinguished all aboriginal claims to Alaska land and only one Indian reservation
remained.265 In a footnote, Justice Thomas explained that other Indian land exists, post-ANCSA,

260 Id. at 4.
261 Id. at 3 (citing Venetie, 522 U.S. 530).
262 Id. at 5 (DOI opinion is attached as an appendix to the EPAs land status determination for Section 8).
263 Id. (citing HRI I, 198 F.3d at 1248-49).
264 Id. at 4 (citing HRI I, 198 F.3d at 1248-1249; Venetie, 522 U.S. at 531, n 7; Pittsburg & Midway Coal Min. Co. v. Watchman,

52 F.3d 1531, 1542-43 (10th Cir. 1995)).


265 Venetie, supra n. 138 at 520.

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if the land in question meets the requirements of dependent Indian community under 18 U.S.C.
1151(b) or if it is an allotment under 18 U.S.C. 1151(c). The Court held that a dependent
Indian community refers to a limited category of Indian lands that are neither reservations nor
allotments and that satisfy two requirements: they have been set-aside by the Federal
Government for the use of the Indians as Indian land and they must be under federal
superintendence.266
In Yazzie, the 10th Circuit Court determined that that termination of an executive order
(EO 709/744) designating an area part of the Navajo Reservation did not preclude any part of
that area from being Indian Country under 18 U.S.C. 1151(b).267 The 10th Circuit Court
remanded the case to district court and directed it to apply the community-of-reference test that
the EPA applied in its determination of the Indian land status of Section 8 in this case.268 In HRI
I, the 10th Circuit recognized that the Section 8 land was within the same land area discussed in
Yazzie and remanded it to the EPA to determine if it was Indian Country under 18 U.S.C.
1151(b). The EPA correctly relied on 10th Circuit precedent to determine that
privately-held land held within the EO 709/744 area may be Indian country due
to its location within a dependent Indian community under 18 U.S.C. 1151(b),
notwithstanding the fact that the EO 709/744 area was diminished or terminated
as part of the formal Navajo Reservation and the unallotted land in the area was
returned to the public domain.269

266 Id. at 527.


267 Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1422 (10th Cir. 1990).
268 Id. at 1543-45.
269 Petitioners Supplemental Brief RE Rehearing En Banc, 2009 WL 4276488 (Nov. 19, 2009).

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The fact that the land is not on a reservation under 18 U.S.C. 1151(a) does not mean it is not in
Indian Country; it is Indian Country within a dependent Indian community because land
ownership or reservation boundaries are not dispositive under this definition.270
The EPA was correct in its determination that Venetie did not abrogate the community-ofreference test in the EPAs determination of a dependent Indian community. This is not a matter
of the EPA deciding criminal jurisdictional boundaries; this is a matter of the EPA making a
determination when Indian lands may be affected by mining activities that can affect the quality
of water of a Tribal community. The court should defer to the EPAs analysis in this instance
because their interpretation of Indian lands under the SDWA is unique to that statute. An
analysis of the definition of Indian Country as it applies to criminal law is not appropriate.
This analysis implicates the EPAs expertise in environmental management and the court should
give administrative law deference.271 Because the EPAs expertise under the SDWA is
implicated, the court should give deference to the EPAs decision that the Section 8 lands in
dispute are Indian lands under the dependent Indian community definition since there is no
clear finding of Congress contrary intent. Furthermore, under principles of federal Indian law,
i.e. canons of construction, the court should interpret the dependent Indian Country statute
liberally, in favor of Indian tribes. Regulation of water quality in an aquifer is different than
strict criminal jurisdictional boundary lines and the EPA is charged with making a jurisdictional
determination under the UIC permitting provision of the SDWA; it was specifically instructed to
do so when the case was remanded in HRI I.

270 Id. (citing New Mexico v. Romero, 142 P.3d 887, 893 (N.M. 2006)).
271 Grijalva, supra n. 2 at 183.

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The EPA was not trying to make a determination of a criminal matter, they were using an
accepted federal regulatory definition and applying based upon their expertise in an
environmental law and within the appropriate jurisdictional context for a water law matteran
entirely different jurisdictional analysis that only a water quality administrator has the expertise
to determine. The court should not arbitrarily throw out the agencys determination without first
conducting an analysis to see if it is reasonable under some sort of deference standard. To do
otherwise is a ruthless disregard for Congressional authority to establish laws and regulations,
including the authority of specialized agencies tasked with making those regulations, and is in
effect unnecessary and unauthorized judicial law making.
Part V: Tribal Sovereignty The Importance of Deference to the Tribe
The Navajo Nation is a sovereign nation with direct implementation program authority to
issue permits under the SDWA as promulgated by the EPA, since 1988.272 Furthermore, the
Navajo Nation passed the Dine Natural Resources Protection Act, banning all uranium mining
within Navajo lands in 2005.273 The Act declared that uranium mining was antithetical to
Navajo Fundamental Law regarding protection of the Nations natural resources and to the
teachings of medicine peoples regarding harmony and balance in life and a healthy
environment.274 According to Rosser, it was also a condemnation of the social, cultural,
natural resource, and economic damage to the Navajo Nation from past uranium mining; Indian

272 40 C.F.R. 147.3400.


273 The Dine Natural Resources Protection Act of 2005, 20th Navajo Nation Council, April 29, 2005 (available at http://

www.sric.org/uranium/DNRPA.pdf).
274 Rosser, supra n. 1 at 443.

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rights to self-(re)definition must be respected, and arguably Indian environmental perspectives


should be incorporated to a greater extent into general environmental law.275
Just as when the original federal environmental laws were enacted, the HRI III decision
made no mention of Indian law as it would apply to the environmental regulations, except to
hold that the EPA could not make a determination of Indian Country, despite the fact that the
court had specifically remanded the case for the EPA to determine whether or not the land was
Indian Country.276 Because this case involves issues of federal Indian law, a greater deferential
standard applies. Tribal sovereignty provides a backdrop against which . . . applicable treaties
and statutes must be read.277 It is well-settled Indian law that states are generally precluded
from regulating Indians in Indian Country unless clearly authorized by Congress. 278 This
prohibition against state regulation is also supported by the long tradition of tribal sovereignty
and self-government.279 The federal trust responsibility to Indians includes protecting tribal
property and jurisdictional status of land, which implicates ownership and the core sovereignty
interests of Indian tribes.280
The Courts decision in HRI III completely ignores the history surrounding
environmental injustice in this community and the contamination it has already suffered because
the Tribe was unable to be involved in the decision-making process. It offers no deference to
275 Id. at 443 & 473.
276 HRI III, supra n. 3 1142 (citing HRI I, 198 F.3d at 1237, 1254).
277 Nance v. EPA, 645 F.2d 701 (9th Cir. 1981) (citing McClanahan v. Arizona State Tax Commn, 411 U.S. 164 (1973)).
278 State of Washington, Dept. of Ecology v. U.S. EPA, 752 F.2d 1465, 1469-1470 (9th Cir. 1985)
279 Grijalva, supra n. 2 at 37.
280 HRI I, supra n. 151 at 1245-1246.

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interpret statutes in favor of the tribes nor does it consider the federal governments trust
responsibility to the tribes; it ignores federal Indian law completely. According to law professor
James Grijalva, tribes absence from the national dialogue and implementation of federal
environmental programs is largely responsible for creating environmental injustice in Indian
Country.281 The Navajo Nation passed a resolution banning uranium mining on their land
because of the illnesses their people obtained from mining themselves, but also the impact
uranium mining has had on their environment. To ignore this clear indication of a desire to cease
further destruction of Navajo lands from uranium mining is to return to a policy of
environmental paternalism that the EPA, the federal authority on environmental laws, has seen fit
to evolve away from. Further, it is a continuation of environmental injustices to a community that
has had more than its share of environmental problems. As scholar Ezra Rosser notes:
[t]he law should assume that Indian nations will make good decisions regarding
project developments, either because advocates truly believe tribes will always will or
because tribal sovereignty means tribes should have the space to make
decisions non-Indian
governments would support.282
Respect for Tribal sovereignty and tribal self-governance is negatively impacted by the 10th
Circuit Courts decision in HRI III; its impact may have wide-sweeping consequences, placing
environmental regulation affecting Indian land other than reservation land or allotted lands in the
hands of the states all across Indian Country.

Environmental Paternalism
281 Grijalva, supra n. 2 at xi.
282 Rosser, supra n. 1 at 522-523.

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It is arguable that the EPAs reliance on Section 1151 to define Indian Country under
the SDWA was a poor choice for determination of jurisdiction of regulated natural resources that
have easy mobility and broad geographic reach. Clearly the majority in HRI III thinks so.
Jurisdiction over the regulation of an environmental resource like water or air is more complex
and deference should be given to the EPAs determination of jurisdiction. Unlike criminal
jurisdictional boundaries where a firmly drawn geographic line determines who has adjudicative
authority over the perpetrator, where the potential for contamination of a resource like water can
occur in one area but have larger, destructive implications on another, jurisdiction needs to be
determined in a different manner. Environmental laws exist so governments can protect their
environment from those who contaminate the resources of their people. The contamination of an
aquifer has far reaching and long-lasting consequences for a community, more so than the
commission of a crime within a governments borders. Because of the potential for drastic
consequences to communities if environmental contamination occurs, the EPA, as an agency
with the expertise and experience in specializing in environmental regulation, is better suited
than a court, to determine who should have jurisdiction over SDWA standards and permitting due
to the unique scientific concerns associated with environmental risks and contamination.
The EPAs reliance upon a federal criminal statute to determine Indian Country has
clearly proven problematic since it allows a court to determine environmental regulatory
jurisdiction based upon a completely unrelated law. The majority in HRI III has strongly
indicated that linking jurisdiction under the UIC permitting process will be problematic for
environmental regulation because it will keep the EPA beholden to make its jurisdictional
determinations based upon criminal law and precedent. The EPA and tribes could benefit from
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an updated statute that defines Indian Country for the purposes of UIC permitting and should be
done in a way that is inclusive of the tribes and is cognizant of the complexities surrounding
underground water regulation. As suggested by Elizabeth Burleson, in her article, Tribal, State
and Federal Cooperation to Achieve Good Governance:
Congress must avoid environmental paternalism and instead show its
confidence in tribal decision-making. If and when a tribal community decides that
it wishes to pursue such a project, Congress should not only accept, but also
respect that decision.283
The current federal criminal definition of "Indian lands" has proven problematic for Indian
Country and tribes inherent right to regulate water quality that can have serious impacts on the
quality of life and environment of their Nations.

The Second Montana Exception


In Montana v. Environmental Protection Agency (Montana v. EPA),284 the 9th Circuit
Court strengthened the health and welfare prong of the second Montana v. United States
(Montana v. U.S.)(the tribal civil jurisdiction exception).285 The Supreme Court has held that
tribes generally retain regulatory jurisdiction over matters of tribal selfgovernment and internal
relations and may regulate matters that fall outside this limited scope only under express
delegation from Congress.286 In Montana v. EPA, the Supreme Court made a clear indication that
283Rosser, supra n. 1 at 522 (quoting Jana L. Walker & Kevin Gover, Commercial Solid and Hazardous Waste Disposal Projects

on Indian Lands, 10 Yale J. on Reg, 229, 262 (1993)).


284 Montana v. Environmental Protection Agency, 946 F. Supp. 945 (D. Mont. 1996), affd 137 F.3d 1135 (9th Cir. 1998), cert.

denied 119 S. Ct. 275 (1998).


285 Montana v. United States, supra n. 109 at 564.
286 Id.

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a threat to water sources met the standard of conduct that threatens or has some direct effect on
the health or welfare of the tribe. This ruling might create an opportunity for the Navajo Nation
to challenge the mining permit application, arguing that the threat to the aquifer from the
uranium mining by HRI, constitutes a threat to the health or welfare to the Navajo Nations water
source.
In Montana v. U.S., the Supreme Court clarified the extent to which the doctrine of
inherent sovereign authority may be asserted within a civil regulatory context.287 In this case, the
Court found no asserted tribal regulatory authority for the Crow tribe, and found that inherent
tribal sovereign power did not extend to regulation of activities of nonmembers on land owned
by nonmembers, but carved out two exceptions.288 The first exception states that tribes retain
inherent sovereign power to regulate the activities of nonmembers who enter into consensual
relationships with the tribe or its members. 289 Second, the Court recognized an exception that
tribes may exercise civil authority over the conduct of nonIndians on fee lands within the
reservation when that conduct threatens or has some direct effect on the political integrity,
economic security, or the health or welfare of the tribe, citing cases resolving jurisdictional
conflicts in favor of tribal interests within the context of adoption, tribal tax revenues, and water
rights.290
Other cases expanded upon the Montana v. U.S. ruling, providing further guidance as to
when the Montana v. U.S. exceptions apply to determine inherent tribal sovereign power. In
287 Id.
288 Id. at 565.
289 Id.
290 Id. at 566.

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Brendale, the court stated that to support the exercise of inherent authority, the potential impact
of regulated activities must be serious and substantial. 291 In Colville, the Supreme Court
recognized that a tribe retains inherent power to exercise civil authority over the conduct of nonIndians on fee lands when that conduct threatens or has some direct effect on the health and
welfare of the tribe, including water rights.292
In Montana v. EPA, the Environmental Protection Agency (EPA) granted the
Confederated Salish and Kootenai Tribes of the Flathead Reservation treatment as a
state (TAS) status under the Clean Water Act, authorizing the Tribes to set water quality
standards for all navigable waterways within the Reservation.293 The State of Montana and
others owning land in fee within the Reservation challenged this grant of authority, arguing that
TAS status allowed the Tribes to set water quality standards that would apply to all discharges
within the Reservation, including those originating on land owned in fee by nonmembers of the
Tribes, and claimed this was an improper extension of the Tribes authority.294 The 9th Circuit
upheld the grant of TAS status to the Tribes, holding that EPA properly applied the doctrine of
inherent tribal authority in extending to the Tribes regulatory authority over non-consenting nonmembers.295 According to Professor Grijalvas analysis,

291

Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 431 (1989).

292

Colville Confederated Tribes v. Walton, 647 F.2d 42, 52 (1981).

293 Montana v. Environmental Protection Agency, supra n. 286.


294 Id. at 1137.
295 Id. at 1141.

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[t]he nature of water as a unitary resource and the mobility of water pollutants meant
pollution from non-Indian lands could affect tribal citizens on a scale much larger than a
lone negligent non-Indian driver on a reservation highway.296
The EPA found that the activities of non-members posed such serious and substantial threats to
Tribal health and welfare that Tribal regulation was essential, arguing that due to the mobile
nature of pollutants in surface water it would in practice be very difficult to separate the effects
of water quality impairment on non-Indian fee land from tribal portions of the reservation;
finding support from Colville, the Montana v. EPA court recognized that the authority to establish
water quality standards is inherent in tribal sovereignty.297 The Ninth Circuit first deferred to
EPAs judgment that inherent authority was the proper standard under which to evaluate TAS
status and then the Court affirmatively applied the second exception to the Montana v.
U.S. doctrine by identifying water quality regulation as an area that could affect the tribes health
and welfare, justifying tribal jurisdiction over nonmember conduct.298 While the court did not
analyze and explain what kind of a relationship between the regulated activity and tribal
selfgovernance would be necessary for the second Montana v. U.S. exception to apply, it clearly
indicated that threats to water resources met this standard.299
The second Montana v. U.S. exception recognizes that tribes retain authority over nonmembers for conduct that threatens or directly effects the political integrity, the economic
security, or the health and welfare of the tribe; and water pollution has a direct effect on the

296

Grijalva, supra n. 2 at 95.

297

Montana v. Environmental Protection Agency, supra n. 286 at 1141 (citing Colville, 647 F.2d at 52).

298 Id. at 1140-1141.


299 Id. at 1141.

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health and welfare of a tribe.300 It is arguable that the Navajo Tribe could argue that they have
inherent authority to regulate UIC permitting under this second Montana exception.
The Navajo Nation could make a very strong argument that they have inherent civil
authority over the water quality in the aquifer under Section 8 under the Second Montana
exception since the potential pollution from uranium mining could have serious and substantial
effects on the health and welfare of the tribe due to the poisonous nature of uranium mining and
tailings and its potential threat to this public water source that also extends under Indian lands.
Although the Navajo Nation is not currently accessing the aquifer as a public water source, that
does not mean its clean water is not worthy of protecting, per the SDWA. This argument is made
stronger by the fact that a previous tailings spill caused by the previous owner of the mine
resulted in contamination in the area. Furthermore, uranium mining has had such a negative
environmental impact on the Navajo community that they enacted their own resolution to
prevent any further uranium mining. A claim under the Second Montana exception could
provide the tribe some relief and recognize their inherent civil authority to regulate those
activities that can affect the public health and welfare of their tribe.

CONCLUSION
The regulation of environmental laws in this country has been an evolutionary process
where the EPA has encouraged tribal environmental governance through TAS standards or
federal implementation until the tribe is ready to take over its own environmental management.
Although tribes have the opportunity to achieve SDWA regulatory authority under TAS

300

Elizabeth Burleson, Tribal, State and Federal Cooperation to Achieve Good Governance, 40 Akron L. Rev. 207, 218 (2007).

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provisions, it is not an automatic, overnight grant of all environmental management authority to a


tribe. It authorizes tribes to work with the EPA to build tribal capacity to set standards for
managing and regulating environmental activities in their territory, subject to EPA approval, and
as self-governing nations, not be subject to the standards of states.
The HRI III case is troubling in that it is an utter disregard of EPA environmental
expertise and regulatory authority, but it opens the door for states to claim regulatory authority
under the SDWA based upon lines drawn in the sand for criminal jurisdiction in Indian Country,
boundaries that do not exist for polluting contaminants. Perhaps the EPA erred in choosing the
18 U.S.C. 1151 Indian Country definition as their baseline for determining Indian lands
under the SDWA. However, it is to the discretion of the specialized agency to determine the
application of their statutes and their interpretation. Judicial precedent defers to agencys
interpretation of their laws, and the 10th Circuit court should have followed its own precedent
and done the same. The EPA appropriately determined, based upon their expertise, that the
Section 8 land was part of a dependent Indian community and therefore subject to federal
jurisdiction under the SDWA. Maybe a definition of Indian lands in the SDWA is warranted,
to prevent ambiguity in the statutory interpretation, but the interests of administrative law and
agency deference as well as the principles of federal Indian law hold that the Section 8 land
should have been held to be Indian land. The 10th Circuit Courts interpretation was in error and
an impermissible taking of environmental regulatory authority in Indian Country.
The holding in HRI III is a perfect example of the problem of current federal
environmental laws as they affect Indian Country lands. It highlights the problem of statutory
construction when tribes are absent and subject to the environmental paternalism of the federal
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government; the federal government, absent involvement from Indian tribes, relied upon the
criminal jurisdiction definition for Indian Country and no input from the tribe, resulting in a
holding where the courts determine what is Indian Country. The voice of the tribe was not heard
or even considered by the 9th Circuit Court. Environmental justice incorporates the equitable
distribution of environmental risks and environmental goods, and who gets to make the
environmental policy decisions and who does not.301 As Indian environmental law professor
James Grijalva states, the disproportionately high health and environmental risks from pollution
in Indian country may derive more from jurisdictional uncertainties hampering effective
regulatory control than unfair program implementation, and their solution may lie in tribes
inherent power over their territories. 302 Indian tribes absence from the national dialogue and
implementation of federal environmental programs is largely responsible for creating
environmental injustice in Indian Country.303 The EPA consulted with the tribe when making its
land status determination and took that information into consideration. The 9th Circuit Court,
exercised colonial pragmatism in its ruling, choosing to ignore the will of the Navajo Nation to
end the destruction of their environment and the poisoning of their people by uranium mining.
With meaningful tribal involvement in the dialogue and implementation of federal environmental
programs, a more accurate and appropriate definition of Indian country for the purposes of the
SDWA (and other federal environmental laws) can be made. Given the EPAs support in this
matter, based upon their determination that the HRI land was in fact Indian country under the

301 Figueroa, supra n. 57 at 360.


302 Grijalva, supra n. 2 at 4.
303 Id. at xi.

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SDWA, the EPA should correct this environmental injustice and work with tribes to make a more
appropriate definition of Indian country under the SDWA and remaining federal environmental
laws and regulations.
Defining Indian country under the SDWA with Section 1151 is problematic because it
defines the geographic boundaries for criminal laws where strict boundaries can be drawn.
However, this type of definition becomes problematic when determining jurisdiction over a
natural resource that is highly mobile and that cannot be subject to strict jurisdictional boundaries
due to the fluid and mobile nature of the resource. The 10th Circuit has held that when the EPA is
defining Indian land under the criminal law in Section 1151 for the purposes of determining
jurisdiction for regulation under the SDWA, it shall be determined by federal criminal law
standards instead of administrative experts determination of who best should have
administrative authority over a highly mobile, underground natural resource. To determine that
the regulatory jurisdiction of water in an aquifer is determined by who owns the land above it,
runs counter to the goal of avoiding checkerboard jurisdiction which was the purpose of the
criminal jurisdiction definition of Indian Country. Its result encourages checkerboard
administration of water in the aquifer below HRIs land.
It is because of results that are harmful to Indian tribes and run counter to federal Indian
law, that at least administrative deference should be given to the experts in the field of regulation
who, considering the mobile nature of water, the location of water in the underground aquifer,
and the high risk contamination of the aquifer can have throughout the aquifer, regardless who
owns the land above it, are best able to determine who should have authority to regulate the
resource. There is a strong argument that federal Indian law and Supreme Court precedent
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under Montana v. EPA argues that the tribe has the inherent authority to regulate water quality
that has the potential to have serious and substantial effects on the public health and welfare of
the tribe. Although that case involved the CWA and dealt with surface water, the fact that the
SDWA requires aquifer exemptions to protect a source of public drinking water, supports an
argument that an activity that may threaten a tribal water source recognizes that tribes inherent
authority to regulate the water quality of that aquifer. The Navajo Tribe has already suffered
contamination from uranium mining from the previous mine owner at the exact mine under
question. The Tribe could have a very strong case showing their inherent jurisdiction over the
quality of water in Section 8 due to the impacts previous pollution has had on the Tribe at that
site as well as the potential for harm to its nearby lands if the aquifers water, a mobile and
unitary resource, were to become contaminated again.
Ideally, tribes could have all regulatory authority over their lands, but this position is
arguably utopian considering the varying administrative and infrastructural capabilities of
different tribes. In the meantime, the EPA, as the agency charged with the expertise in
administering environmental laws, should work to create a better definition for Indian Country
that is better suited to the complexities involved in regulating water quality under the SDWA.
This should include involvement with the tribes so as to prevent environmental paternalism and
work within the constructs of federal Indian law that recognizes the inherent authority of tribes to
regulate their water quality and upholds the federal trust responsibility of the federal government
to tribes. In the article Tribal Sovereignty Over Water Quality, Jessica Owley states:

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[a]s tribal sovereignty and culture is passively eroded and actively attacked,
control over natural resources remains standing as one of the fundamental attributes of
sovereignty tribes have retained.304

basic

History and environmental regulation continues to show how the lack of involvement by tribes
over regulation of their environment and natural resources causes their environment to suffer.
Incidents like the uranium tailings spill on Navajo lands occur because of this gap in regulatory
jurisdiction. Tribes should be engaged in environmental decision-making and policy-making
when there is an actual or potential environmental threat or impact to their lands and people. As
part of this government-to-government relationship, tribal opinion should be given great
deference. Deference should be given to the desires of the tribes and then deference should be
given to the EPA as the experts in environmental regulation and partners who work with the
tribes.
Without tribal involvement, not only is the environment of tribes at risk, but also so is
tribal sovereignty through their ability to control their natural resources. Without better laws and
better administration of laws that consider the interests of tribes, tribal sovereignty suffers and
environmental injustice will continue in Indian Country as will the perpetuation of the
disproportionately high health and environmental risks from pollution in Indian Country.
Environmental justice and the interests of tribal sovereignty and federal Indian law warrant that
the federal government must prevent this from happening and this can only be done with the
involvement of the tribes.

304 Jessica Owley, Tribal Sovereignty Over Water Quality, 20 J. Land Use & Envtl. L. 61, 64 (2004).

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In Pursuit of Justice in Indian Country: Internship to Executive


Director

!
Introduction
I started the JD/MS Environmental Studies program at the University of Montana in
August of 2007, starting my first year in the Environmental Studies program. My professional
goal then and now is to work on environmental justice issues in Montana, particularly in Indian
Country. My graduate studies afforded me many opportunities to work in areas of social justice
work, including the environmental justice realm. This paper describes part of my journey through
my academic and professional work, highlighting how my personal experiences have allowed me
to see first-hand the long-term impacts environmental injustice, particularly persistent poverty
and lack of access to resources has on Indian Country.

These experiences have shaped my

current career path and have led me to my current profession as the Executive Director of a
statewide environmental nonprofit organization.
My academic and professional opportunities have led me further down my path of social
justice advocacy, attacking the structural basis of poverty and the policy and belief systems that
enable poverty and racism to persist. My career goal has always been to fill in the gaps that
prevent justice for low-income, underserved persons.

I focused my graduate studies on

environmental justice in Indian Country and my legal education on environmental and Indian
law because I believe access to justice is a human right that is too often denied in Indian Country,
starting at the most basic level of access to healthy lives and spaces. Without this most basic
foundation, people and communities suffer, making it nearly impossible to end the cycle of

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poverty. This piece walks through the last 5 years of my academic and professional career,
outlining the steps I have taken to try to make the world a better place.

Native American Rights Fund Internship


During the Spring 2010 semester, I held an internship with the nonprofit Native American
Rights Fund (NARF) in Boulder, Colorado. Since 1971, NARF has been providing legal
assistance to Indian tribes, individuals, and organization in areas such as sovereignty, treaty
rights, natural resource protection, and Indian education with their primary focus being on
applying existing laws and treaties to guarantee the federal and state governments, when
applicable, live up to their legal obligations. The NARF staff have dedicated their lives to
eradicating injustices in Indian Country and are the leading litigators for Native American rights.
This internship was a wonderful opportunity and I was empowered by the staffs motivation and
passion for justice in Indian Country.
This internship required mostly legal research and memorandum-writing to answer
specific legal questions or to find facts within historical documents, covering a wide variety of
issues including: Native American water rights; federal recognition litigation; state income
taxation of Native Americans; indigenous rights and climate change policies; and Indian
education. In addition to learning about each topic I researched, this experience confirmed what
I was already beginning to know: Native American law issues are probably the most complex in
the entire legal system and these complexities do not often work in favor of Native American
people and tribes. However, it was incredibly empowering to meet and work with NARF
attorneys who have dedicated their lives to fighting injustice in Indian Country and to see how
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their hard work and perseverance has paid off for many Native American tribes and their
members.
As a NARF intern, I received a scholarship to attend the ABA Section of Environment,
Energy, and Resources 39th Annual Conference on Environmental Law in Salt Lake City, Utah
in March of 2010. I particularly enjoyed the Developments in Environmental Justice From
the Courts to the Obama Administration to Indian Country panel, hosted by the Native
American Resources Committee. The panelists gave background information on the historical
impact of federal environmental laws on Indian Country and an overview of the EPA
Environmental Justice program and their plans for the future. In addition, the panel discussed
non-traditional legal methods employed by communities affected by environmental injustices.
When I returned from the conference, I shared my write-up on the panel with the NARF staff, as
well as the other panel topics and materials I received from the conference.
Overall, this experience affirmed my belief that I want to work in the field of Native
American Law and Environmental Law, particularly in seeking environmental justice in Indian
Country. This experience helped me remember to push beyond my comfort zone and not be
afraid to ask questions, ask for help, and not be intimidated and introduce myself to individuals I
look up to and who can teach me things. It is important to not only work hard, but to put
yourself out there as a professional ally and resource. My overall takeaway is that there are a lot
of smart, good people out there fighting the good fight for people without the direct resources to
do so themselves. These people are oftentimes behind the scenes and the last to toot their own
horn. When I am working hard and getting frustrated and running into my own professional
roadblocks, I will take comfort in knowing that there are other people out there, working hard to
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make other peoples lives better, often with little recognition, and that knowledge will help me
keep my chin up and keep forging ahead.

Teach For America


In the spring of 2011, as law school graduation was approaching, I started to look for jobs
working in Indian Country. There were several opportunities in front of me, but I knew I wanted
to do social justice work with Native American communities. I was having difficulty finding
legal jobs for new attorneys in that field, so I applied for the Teach for America program,
choosing to prioritize working in Native American communities if I were selected. In the end, I
was selected and I was chosen to be placed in the New Mexico/Arizona region, whose primary
population was the Navajo Nation.
I taught elementary special education in Gallup, New Mexico, and this experience
changed my life. It is one thing to understand, politically and socially, that inequities exist in our
society, but it is another to experience them through the lives of children. By teaching children at
such a young age, and particularly those children who struggle due to disabilities, I was able to
experience those inequities very acutely. I saw first-hand how important education is for
children, but also the very real barriers that exist for children and families living in poverty, and
how these barriers, if not seen or addressed in some way, set children up to fall further and
further behind. I learned how much a supportive home system means to the success of a child in
school, and how what looks like an unsupportive home system, is often parents working
themselves to the bone to make ends meet. And those parents have to work themselves to the

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bone because they did not have a real chance at a quality education. My greatest successes were
in understanding families struggles as I developed relationships with them and cultivating that
sense of compassion, which helped me become a more patient and creative teacher. Further, my
legal training helped me advocate for my students as their special education teacher when
developing their Individualized Education Plan which describes the goals the team sets for a
child during the school year, as well as any special support needed to help achieve them. My
legal training prepared me to be an advocate for the students needs, as well as an advocate for
the families of the child navigating the special education process.
I struggled in this job in that I would hear from my students and their families how lack
of access to justice prevented them from being able to change their lives. These families lived in
food deserts, often having to travel over an hour to get to the nearest store with food, and often
that store being a gas station full of processed foods and sugary, caffeinated drinks. Parents
struggled to leave abusive homes or receive access to services. Families had nowhere to turn
when hit with a financial blow, often falling further into debt and being forced to access high
interest rate payday lenders, pulling them further and further into financial uncertainty from
which they may never recover. As much as I loved teaching, I struggled with the reality that I
was trained in the law and had the skills to assist these families, and thought that I should focus
my energies back in law and access to justice.

Montana Legal Services Association


When I left Teach for America, I accepted a staff attorney position at Montana Legal
Services Association (MLSA) in Helena, Montana, as a Domestic Violence attorney and Tribal

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Advocate, working out of Hill County, Montana, as well as the Fort Belknap and Rocky Boys
reservations. MLSA is a law firm that empowers low-income people by providing legal
information, advice, and other services free of charge. MLSA works both on individual cases and
under a systemic approach to help low-income people escape domestic violence, keep their
housing, preserve their public benefits, protect their finances, and more. This experience allowed
me to see first-hand the long-term impacts of poverty, broken promises by the federal
government, and the resulting environmental injustices that are inevitable with conditions of
persistent poverty and lack of access to resources that are systemic in Indian Country.
For over two years, it was my responsibility to broaden our firms legal services to
include three reservations in Montana. I provided direct legal aid to survivors of domestic
violence in tribal courts and the State of Montana justice system, as well as technical assistance
and training to domestic violence advocates, tribal court personnel, and law enforcement on the
reservations and in surrounding areas. This work required developing and sustaining
relationships with community members, tribal programs and personnel, law enforcement, and
federal and state agencies. This job gave me exposure to and allowed me to improve my
capacity to work with a variety of communities and stakeholders. Here I also struggled with the
poverty barriers that impede access to justice. Clients would miss meetings because they did not
have gas money, or a child was sick, or they were confused. I learned to be a better advocate and
to see these struggles not as a lack of desire for a better life, but more as an understanding of the
weight poverty puts on people and human capacity to bear that burden and stay resilient.

Alternative Energy Resources Organization

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Throughout my academic and professional career, I am always asking how I can be the
most effective at creating systemic change for people living in poverty or in impoverished
communities. When the Executive Director position opened up at the Alternative Energy
Resources Organization (AERO), I saw an opportunity to do proactive work to help lift people
out of poverty on a community-scale by creating more sustainable communities. AERO is a
grassroots nonprofit organization dedicated to solutions that promote resource conservation and
local economic vitality. AERO nurtures individual and community self-reliance through
programs that support sustainable agriculture, renewable energy, and environmental quality. This
organization had been around for over 40 years and was going through a transition. I saw a
unique opportunity to work with active, engaged, and informed communities to give a voice to
everyday Montanans who desire access to fresh, healthful, and local food, and ecological
farming, as well as affordable, sustainable, clean energy policies and opportunities. AERO gives
Montanans a voice and a means to say and show how this sustainable lifestyle is possible.
My personal goal in working with AERO is to create sustainable, accessible
communities, all across Montana. Too many families in our state go without food, let alone
healthy, fresh food. Children do not receive proper nourishment and have low energy, not only
affecting their health, but their performance in school. Too many families struggle to make ends
meet and living in unsafe, unaffordable, cold homes is an unacceptable reality. A child living in a
cold or too hot home, or uncertain and stressful, possibly overcrowded, living space, will be
confused and emotionally unstable, and will suffer academically as well.
I personally hope to expand AEROs work to Indian reservations in Montana to improve
access to food, clean energy, safe homes, and sustainable economic development opportunities.
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On many Indian reservations located in Montana, there are few sources for food, let alone
affordable, healthful food. Some, but not all reservations have grocery stores. Some have a local
convenience store that sells some meat products, pre-packed foods like macaroni and cheese and
ramen noodles, and a lot of junk food. Reservation communities were deliberately and
strategically placed on the least desirable land, which often meant the land that was not
suitable for farming. The effects of these unfair and unjust displacement practices are felt in
every meal in reservation communities. By supporting and advocating for a healthful, fresh, and
local food movement in reservation communities, AERO can develop programs and
collaborations to support nutritional health, fight diabetes, combat poverty, and build economic
development opportunities by helping to eliminate food deserts and feed reservation
communities for years to come. We are currently doing this type of work in communities in
Montana, including Helena and Browning.
Although Ive only been with this organization as the Executive Director for a little over
a year, this experience has taught me so much about myself and about the power of community. I
have always struggled with taking on too much and wanting to change the world overnight. And
I spent my first year at AERO trying to do that, and I almost got burned out. Now, I am learning
how to balance my time and set more realistic expectations with work and play and what I need
to keep it all together. I also am learning that this does not happen overnight and that is okay.
One of the most rewarding aspects of this job is the people it has connected me with and to. Our
membership is comprised of many Montanans who believe our communities can be clean and
healthy and happy, and they are not afraid to think outside the box and push the envelope to
make those realities. For years many of our members pushed agriculture in this state to a place
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where growing food without pesticides and synthetic fertilizers is a reality, as is healthy soil and
economic development as a result. It has also reiterated for me that the power of human
ingenuity can change the world, and it must be done with community.

Conclusion
My academic and professional experiences reiterate my deep, proven commitment to
public service, as well as my many opportunities to work to address poverty-related policy issues
in need of change, including environmental justice, access to justice, education, and human
rights. I feel successful in that I have learned and grown so much professionally and personally
because I have had the privilege of doing direct service work to help make peoples lives better. I
have learned that direct service work is absolutely necessary to having an understanding of the
big picture policy work that creates long-term, sustainable solutions to alleviating poverty.
In many instances, I discovered that experiencing and hearing peoples stories and
struggles opened my eyes and heart in ways I did not think were possible. Academically, I knew
the struggles of marginalized and impoverished people, experience and struggle through, but it
was not until I got to know people and see how hard they worked to change their lives or create
opportunities for their children, that I was able to start to understand how pervasive and systemic
poverty and racism are in our society. And this made me more certain of how important social
justice work and dialogues are to creating opportunities and systems that will can change
peoples lives. Further, we should never underestimate the power of human ingenuity, good
people with big hearts, the power of community and progressive leaders to change the world. If
there is one thing Ive learned in an academic career in environmentalism, and a professional

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career working in a variety of social justice, progressive work, the way to keep working hard in a
battle that seems unwinnable and overwhelming, is that it is important to surround yourself with
those people who feel the same way and will help you keep your chin up and keep working hard,
and do the best to help you have fun doing it.

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