The HEARTH Act: Implementing UN
Indigenous Rights Norms to Reconcile
the Limitations of Tribal
Environmental Sovereignty
Glennas’ba B. Augborne
Abstract
While the Helping Expedite and Advance Responsible Tribal Home
Ownership Act of 20121 (“HEARTH Act”) provides Native nations2 with
the option of exercising self-determination in pursuit of economic
development, the Act may limit inherent tribal sovereignty and impose
implications for the federal trust responsibility. There is an overarching
need to reexamine how the Act’s structure applies to an Indian nation’s
approach to environmental policy within the current structure of federal
Indian law and policy. This Comment examines statutory structures within
current federal Indian law, and analyzes how they are currently used to
shape federal and tribal environmental law and policy. This Comment
suggests that by incorporating international human rights norms, such as
those derived from the United Nation’s Declaration on the Rights of
Indigenous Peoples (“Declaration”) as a framework,3 the Act can more
effectively promote Native nation-building and domestic intergovernmental
cooperation. This Comment will further demonstrate that Indian
communities are retaining practical sovereignty in their development of
environmental review processes independently, as well as pursuant to the
Act. Notwithstanding these conclusions, there are still areas of the Act that
limit its usefulness as a statutory template for future federal Indian
legislation. Specifically, contrary to the Act, the federal trust relationship
must be protected in order to properly address political, environmental, and
1
25 U.S.C. § 415 (2012).
The term used to describe the indigenous peoples of the United States has changed over
time. For the purposes of this Comment, the author will use the terms “Native,” “tribe,”
and “Indian” interchangeably to refer to that class of peoples.
3
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N.
Doc. A/RES/61/295 (Sept. 13, 2007) [hereinafter Declaration].
2
1
economic concerns of Indian nations within the United States.
I. INTRODUCTION
In recent years, energy development and environmental protection
have received increased national attention. For example, in June 2014 the
Environmental Protection Agency (“EPA”) released its proposed rule to cut
carbon dioxide (“CO2”) emissions from existing power plants. 4 The
proposed reductions in the new rule caused an uproar within the energy
industry. 5 While some attention has been given to Indian country with
respect to environmental responsibility, less attention has been given with
reference to the significant effects that new laws and regulations may have
on individual Indian nations. For example, during the initial stages of its
development, the proposed Clean Power Plan makes mention of the
mandatory tribal consultation process, 6 but notably sets aside present
governmental action with regard to its effect on the four major power plants
currently located within Indian country.7 Similarly, there continues to be
little discussion on how tribes will attempt to mitigate climate change in
Indian country. 8 While climate change remains at the forefront of the
national environmental conversation in Indian Country, the environmental
review implications the Helping Expedite and Advance Responsible Tribal
Home Ownership Act of 2012 (“HEARTH Act”) has received little
attention.
In July 2012, Congress enacted the HEARTH Act to amend the
4
40 C.F.R. § 60 (2007).
Critics have suggested that the proposed rule will cause electricity prices to rise and
power plants to close harming the American economy. Republican Senator Mitch
McConnell stated that the “announcement [of the new rule] is a dagger in the heart of the
American middle class." Aleem Maqboo, U.S. Unveils Sharp Curbs on Coal Power Plants,
BBC.COM (Oct. 24, 2014, 10:05 AM), http://www.bbc.com/news/world-us-canada27645569.
6
Exec. Order No. 13,175, Consultation and Coordination With Indian Tribal
Governments.
7
The EPA provided that they were “aware of four such EGUs [electric generating units] on
three reservations, and . . . it plans to establish performance goals for those plants in the
future, which may be addressed either through tribal or federal plans.” General
Memorandum 14-051, EPA Publishes "Clean Power Plan" Proposed Rule; Public
Hearings Scheduled, Hobbs Strauss Dean & Walker (July 11, 2014),
http://www.hsdwlaw.com/sites/default/files/generalmemo/GM_14051_EPA%20Publishes%20Clean%20Power%20Plan%20Proposed%20Rule_0.pdf.
8
Dean B. Suagee, A Better Buildings Challenge for Indian Country, NAT. RESOURCES &
ENV’T, ABA SEC. OF ENV’T, ENERGY, & RESOURCES, Vol. 29, No. 2, Fall 2014, at 58.
5
2
Indian Long-Term Leasing Act of 1955 (“ILTA”) 9 so as to address a
longstanding hurdle to self-determination and economic development
within Indian country––federal approval of tribal land leases. 10 Under
ILTA, all leases of tribal lands required approval from the Secretary of the
U.S. Department of the Interior (“DOI”).11 The Secretarial approval process
had been known to take months or longer to complete, at an economically
devastating cost to tribes.12 Prior to the HEARTH Act, tribes had limited
alternatives to the daunting Secretarial approval process.13 The HEARTH
Act was enacted to specifically address the inefficiency of Secretarial
approval and to promote Indian self-determination and autonomy.
Under the HEARTH Act, federally recognized Indian tribes14 have
the option of creating new tribal leasing regulations that undergo a one-time
approval process by the Secretary. Once those regulations have been
approved, tribes can enter into individual tribal trust land leases without
further approval. 15 The HEARTH Act specifically authorizes tribes to
execute business and agricultural leases of tribal trust surface lands16 for an
initial term of up to twenty-five years; the lease then “may include an option
to renew for up to [two] additional terms, each of which may not exceed
9
Indian Long-Term Leasing Act of 1955, 69 Stat. 539 (1955) (codified at 25 U.S.C. §
415).
10
Heidi McNeil Staudenmaier & Michael Coccaro, Negotiating with a Tribe or Tribal
Entity: Practical Tips for Franchisors, 34 FRANCHISE L.J. 35, 46.
11
Since the beginning of tribal land leasing in 1891, “[t]he act's requirement that the
Secretary of the Interior approve leases remained a staple of federal laws governing the
leasing of Indian lands for the next century. This is sometimes known as the ‘secretarial
approval requirement.’” Bryan Newland, The HEARTH Act: Transforming Tribal Land
Development, FED. LAW., April 2014, 66–67 (emphasis added).
12
Id. at 68.
13
One option for tribes was to utilize a short-term lease, which was primarily used for
mineral and agricultural purposes. Id. at 67.
14
As of May 2013, there are 566 federally recognized Indian tribes within the contiguous
48 states and Alaska. "Federally recognized" refers to a tribe’s special, legal relationship
with the U.S. government. The special relationship is referred to as a government-togovernment relationship. Bureau of Indian, Answers to Frequently Asked Questions,
http://usa.usembassy.de/etexts/soc/bia.pdf. Pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of 1994 (Pub. L. 103-454; 108 Stat. 4791, 4792) a
complete list of federally recognized Indian tribes can be found at Indian Entities
Recognized and Eligible to Receive Services from the United States Bureau of Indian
Affairs, 78 Fed. Reg. 26384, 26385-89 (May 16, 2013).
15
25 U.S.C. § 415(h)(1).
16
The Act does not apply to the leasing of individually owned Indian allotments and it
excludes leasing for the exploration, development, or extraction of any mineral resources.
See § 415(h)(1), (h)(2).
3
[twenty-five] years.” 17 Leases of tribal trust lands for use as public,
residential, recreational, religious, or educational purposes may be executed
for an initial term of up to seventy-five years.18 Once approved, both types
of leases may be executed without continuing Secretarial approval. Under
the HEARTH Act, the Secretary must approve tribal leasing regulations if
the regulations are (1) consistent with DOI’s leasing regulations,19 and (2)
provide for an environmental review process in accordance with the
requirements set forth in the HEARTH Act.20 By requiring tribes to only
undergo a one-time Secretarial approval for leasing regulations, the
HEARTH Act makes it easier for tribes to engage in leasing of tribal trust
lands.
Although the HEARTH Act represents a tremendous triumph for
tribes by providing a tool for exercising self-determination and promoting
economic development, its implications have only recently been thoroughly
addressed. While the HEARTH Act creates an easier process for tribal land
leasing, its critics argue the prescribed environmental review requirement
parallels National Environmental Policy Act (“NEPA”) provisions. Its
critics continue, that parallelism may incentivize tribes to develop tribal
environmental review processes similar to those imposed by NEPA in order
to secure Secretarial approval. As a result, tribes will be tempted to model
national environmental policy, and hindering a tribe’s execution of pure
inherent tribal sovereignty. Moreover, HEARTH Act critics continue to
suggest that Section 415(h)(7)(A) releases the federal government of its
trust obligation to tribes.21 In light of the trust responsibility’s critical role in
federal Indian law, this provision triggers an area of concern. In brief, the
HEARTH Act may create limitations to important areas of federal Indian
law––inherent tribal sovereignty and the federal trust responsibility––
deriving in part from the ambiguous language embedded within its tribal
environmental reviewing requirement.
Importantly, to thoroughly address the potential benefits and
limitations of the HEARTH Act, this Comment suggests that by
17
§ 415(h)(1)(A).
§ 415 (h)(1)(B).
19
25 C.F.R. § 162 (2012).
20
HEARTH Act of 2012, Bureau of Indian Affairs, U.S. Department of the Interior (Oct.
25,
2014,
5:55
PM)
[hereinafter
HEARTH
Act],
http://www.bia.gov/WhoWeAre/BIA/OTS/HEARTH/index.htm.
21
Specifically, § 415(h)(7)(A) provides, “[t]he United States shall not be liable for losses
sustained by any party to a lease executed pursuant to tribal regulations. . . .”
18
4
incorporating international indigenous human rights norms as a framework,
specific limitations of the HEARTH Act can be reconciled to promote
practical Native-nation building and domestic intergovernmental
cooperation. This Comment proceeds in five parts. First, Section II (A)
examines international norms of the rights of indigenous peoples and how
they can be executed and implemented within nation-states. Section II (B)
explores federal Indian law and policy with regard to inherent tribal
sovereignty and the federal trust responsibility. Section II (C) then focuses
generally on the HEARTH Act’s purpose and benefits in order to create a
framework for its implications. Next, Section III (A) frames the potential,
yet significant, restraint of the HEARTH Act’s ambiguous mandatory
environmental review provisions. It also addresses the impact of the
HEARTH Act's liability waiver on the federal government's trust
responsibility to federally recognized Indian nations. Section IV concludes
by demonstrating that although the HEARTH Act may have the potential of
reducing the federal government's trust responsibility to Indian nations, the
Act does not undermine tribal sovereignty when balanced against the
international rights of indigenous peoples. Accordingly, in an era of selfdetermination, practical sovereignty will promote economic investment,
substantive environmental review processes, and preservation of cultural
rights that will further sovereignty efforts of Indian nations. Still, while the
fact remains that fourteen Indian nations have taken advantage of the
HEARTH Act’s leasing opportunities,22 the Act is not meant to be a onesize-fits-all approach for Indian country, and therefore its applicability as a
template for future federal Indian legislation is limited.
II. BACKGROUND
A. International Rights of Indigenous Peoples
22
HEARTH Act, supra note 20. Eighteen Indian nations have leasing regulations approved
under the Act. The tribes approved are as follows: the Federated Indians of Graton
Rancheria, Pueblo of Sandia, Pokagon Band of Potawatomi Indians, Ak-Chin Indian
Community, Santa Rosa Band of Cahuilla Indians, Citizen Potawatomi Nation,
Ewiiaapaayp Band of Kumeyaay Indians, Kaw Nation, Jamestown S'Klallam Tribe, Dry
Creek Rancheria Band of Pomo Indians, Wichita and Affiliated Tribes, Mohegan Tribe of
Indians of Connecticut, Navajo Nation General Leasing Regulations under 25 U.S.C.
415(e), the Agua Caliente Band of Cahuilla Indians, Seminole Tribe of Florida, Cowlitz
Indian Tribe, Oneida Indian Nation, and most recently, the Ho-Chunk Nation. Id.
5
Three essential documents in international law address the rights of
indigenous peoples. The first two were formed under the United Nation’s
International Labour Organization (“ILO”). The ILO’s primary purpose is
to unite labor institutions of its member states in order to promote decent
work environments.23 In 1957, the ILO Convention 107 was adopted.24 This
convention was the first to address the rights of indigenous peoples in the
global arena.25 Although it was a success in calling for full participation of
indigenous peoples within their national governments and stressed the
importance of rejecting forcible removal, it failed insofar as it accepted
concepts of integration and assimilation. In short, ILO 107 did not speak to
the additional inherent rights indigenous communities retain.26
Subsequently, ILO Convention 169 was adopted in 1991. 27 It
revised ILO Convention 107 by rejecting the acceptance of assimilation and
affirming the inherent right of indigenous peoples to construct their
distinctive communities. 28 ILO Convention 169 is notable for its
recognition and promotion of fundamental human rights of indigenous
populations, but it falls short in recognizing the right of indigenous
“peoples.” 29 When attached to the international concept of “peoples,”
indigenous communities would acquire the right to self-determination.30
Unlike some resolutions 31 and declarations, international conventions
among nation-states are effective because they act as binding law amongst
signatories.32 It may be helpful to also note that while the United States is a
member of the ILO’s governing body and the largest budgetary
contributor,33 the United States has never signed on to any ILO convention
23
Mission and Objectives, INT’L LABOUR ORG. (Dec. 11, 2014, 5:09 PM),
http://ilo.org/global/about-the-ilo/mission-and-objectives/lang--en/index.htm.
24
CAROL E. GOLDBERG, REBECCA TSOSIE, KEVIN K. WASHBURN, ELIZABETH RODKE
WASHBURN, AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM: CASES
AND MATERIALS, 110 (6th ed. 2010).
25
Id.
26
Id.
27
Id.
28
Id.
29
Id. (insofar as its definition in the international collective sense.).
30
GOLDBERG, supra note 24, at 110.
31
Chapter VII Security Council resolutions are distinguished from other resolutions and are
considered “hard law” pursuant to the UN Charter. JENNIFER MOORE, HUMANITARIAN LAW
IN ACTION WITHIN AFRICA, 17 (2012).
32
Id. at 15.
33
The US: A Leading Role in the ILO, INT’L LABOUR ORG. (Oct. 23, 2014, 5:22 PM)
http://www.ilo.org/washington/ilo-and-the-united-states/the-usa-leading-role-in-theilo/lang--en/index.htm (“As the largest member state and donor of the ILO, the US
6
where the convention particularly pertained to the rights of indigenous
peoples.34
Unlike ILO Conventions 107 and 169, and contrary to a reluctant
Bush Administration, the Obama Administration has signed on to the
United Nations Declaration on the Rights of Indigenous Peoples
(“Declaration”). 35 On September 13, 2007, the United Nations General
Assembly adopted the Declaration after more than two decades of
negotiations and deliberations between nation-state member representatives
and representatives of their indigenous communities.36 The Declaration is
an instrument that comprehensively addresses the societal ills that plague
indigenous peoples throughout the world. 37 It is also the first instrument in
international law to identify self-determination as an inherent right of
indigenous peoples.38 Utilizing the well-established norms of international
human rights law, the Declaration provides a series of forty-six normative
standards that create a foundational model, which nation-states may employ
to secure the fundamental human rights and freedoms of its indigenous
peoples.39
contributes 22 percent of the ILO’s regular budget each biennium. . . .[t]he US is a member
of the ILO Governing Body which is the executive body of the International Labor Office .
. . [t]he Governing Body meets three times a year to make decisions on ILO policy.”).
34
GOLDBERG, supra note 24, at 110 (“Note that the United States is not a signatory to ILO
No. 169.”). For a complete list of ILO Convention 107 signatories, see Ratifications of C107
- Indigenous and Tribal Populations Convention, 1957 (No. 107), INT’L LABOUR ORG. (Dec.
11,
2014,
11:28
AM)
http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMEN
T_ID:312252.
35
Declaration, supra note 3.
36
Rebecca Tsosie, Reconceptualizing Tribal Rights: Can Self-Determination Be Actualized
Within the U.S. Constitutional Structure?,15 LEWIS & CLARK L. REV. 923, 924 (2011)
(citing the United Nation’s Economic and Social Council’s Resolution, E.S.C. Res.
1982/34, U.N. Doc. E/RES/1982/82 (May 7, 1982). The resolution took into account the
1978 World Conference to Combat Racism and Racial Discrimination considerations and
detailed findings of discrimination toward indigenous peoples. The resolution recognized a
“urgent need” to combact discrimnation against indigenous people at the “national,
regional and international levels in order to advance the promotion and protection of the
human rights and fundamental freedoms of indigenous populations.” This resolution also
authorized the creation of a working group that would analyze the human rights
developments of indigenous peoples which ultimately led to the adoption of the
Declation.).
37
GOLDBERG, supra note 24, at 108.
38
Id.
39
Id. (discussing how international human rights law has provided “normative standards to
guide . . . efforts toward political and cultural self-realization” of indigenous peoples); see
7
i. Implementation of the Self-Determination Principle
The Declaration’s underlying premise asserts that all indigenous
peoples have an inherent right to self-determination. The Declaration
provides that indigenous peoples have a right to self-determination as
collective peoples, and therefore are entitled to “freely determine their
political status and freely pursue their economic, social and cultural
development.”40 Article 4 asserts that, “[i]ndigenous peoples, in exercising
their right to self-determination, have the right to autonomy or selfgovernment in matters relating to their internal and local affairs, as well as
[a right to] ways and means for financing their autonomous functions.”41
Article 4’s language provides that sovereignty and self-governance stem
from the right to self-determination. If applied to the United States, it
illuminates an opportunity for negotiating a supportive relationship between
indigenous Indian communities and the federal government. It also
prescribes an opportunity to create a flexible relationship between Indian
communities and the federal government that may continue to promote a
shift from the “one-size-fits-all” federal Indian law model of the past, to a
model that adjusts to the individual needs of Indian nations.42
The Declaration recognizes that indigenous sovereignty and selfgovernance requires a right to determine “identity [and] membership in
accordance with their customs and traditions” and to maintain, promote, and
develop that unique indigenous structure in accordance with international
human rights law.43 However, that right does not authorize an indigenous
nation to prohibit its members from obtaining citizenship within the nationstate. 44 Rather, the Declaration sets out a distinctive dual-citizenship
standard for indigenous peoples. Importantly, the Declaration is similar to
other international anti-discriminatory conventions, to which the United
States is signatory. Primarily, the Declaration asserts that the right to
generally S. JAMES ANAYA, INTERNATIONAL HUMAN RIGHTS AND INDIGENOUS PEOPLES 55
(2009).
40
Declaration, supra note 3, at art. 3.
41
Id., at art. 4 (emphasis added).
42
GOLDBERG, supra note 24, at 108 (“The language [of the Declaration’s Article 4]
suggests that there are different models that might be negotiated between indigenous
peoples and the nation-state that encompass them, which would allow indigenous peoples
to freely exercise a right to ‘autonomy’ or a right to ‘self-government’ with respect to
‘internal and local affairs.’”).
43
Declaration, supra note 3, art. 33–34.
44
Id., at art. 33.
8
identify and to belong to an indigenous nation based on customs or
traditions “must be free from any form of discrimination.”45
Some scholars assert that the human rights of indigenous peoples are
no different than the individual human rights of every person, indoctrinated
into various forms of binding law.46 For instance, the Bill of Rights within
the United States Constitution secures the basic human rights of all
Americans. 47 However, to adopt this view would suggest a purely
prescriptive redundancy in the Declaration. Conversely, the human rights of
indigenous peoples, as “peoples,”48 are separate from individual human
rights, in that they are “group rights”49 essentially linked to distinctive
cultural, political and legal statuses, as well as established relationships they
maintain with traditional homelands. 50 It is important to note that the
separate rights of indigenous peoples do not in any way undermine their
individual human rights or their right to fully participate politically in their
respective nation-states.51 Rather, they can be viewed as a dual set of rights
that must be enjoyed and protected equally. The United States therefore
serves as a good example of a nation-state preserving human rights of all
individual citizens, while maintaining the distinctive group rights of Indian
nations.52
As evinced by the Declaration, an indigenous nation’s inherent
sovereignty stems from and flows through their inherent right to selfdetermine their destiny. Because self-determination is a choice and the
relationship between indigenous nations and nations-states tend to vary
based upon their relative histories, an indigenous nation’s right to self45
WALTER R. ECHO-HAWK, IN THE LIGHT OF JUSTICE: THE RISE OF HUMAN RIGHTS IN
NATIVE AMERICA AND THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 44
(2013) (citation omitted).
46
See JEREMY WALDRON, MINORITY CULTURES AND THE COSMOPOLITAN ALTERNATIVE,
THE RIGHTS OF MINORITY CULTURES (Will Kymlicka ed., 1995).
47
See U.S. CONST. amend. I–X.
48
See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2nd ed., 2004).
(“Although self-determination presumptively benefits all human beings, its linkage with
the term peoples in international instruments, indicates the collective or group character of
the principle.”). Id. at 100.
49
See WILL KYMLICKA, INDIVIDUAL AND COMMUNITY RIGHTS, GROUP RIGHTS (Judith
Baker ed., 1994).
50
Tsosie, supra note 36, at 924.
51
Declaration, supra note 3, at art. 5 (“Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political, economic, social
and cultural life of the State.”) (emphasis added).
52
Tsosie, supra note 36, at 925.
9
determination can be effectuated in a myriad of forms.53 Professor Shin
Imai has introduced four potential models––sovereignty and selfgovernment, self-administration and self-management, co-management and
joint management, and participation in government––that illustrate how
indigenous self-determination can be exercised within the nation-state.54
To fully understand the models however, it is helpful to understand
their corresponding central premise. Self-determination of indigenous
“peoples” has been criticized because it is often misinterpreted to be
available only to “mutually exclusive communities entitled a priori to the
full range of sovereign powers, including independent statehood.” 55
However, the concept of indigenous self-determination, as described by
scholars, encompasses “the right of a people to decide how it wants to
relate to a majoritarian population.” 56 Furthermore, Article 46 of the
Declaration expressly rejects an indigenous nation’s secession by noting
that nothing in the Declaration should be misconstrued to permit “any
action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.” 57
Therefore, self-determination should be achieved through political
negotiation between indigenous peoples and nation-states with regard to the
rule of governance.58 It follows that, indigenous self-determination is the
inherent right of a people to govern themselves, but it does not connote the
right of secession.
With the right to govern and not to secede as a premise, the first
model of self-determination, “sovereignty and self-government”, describes
a relationship whereby the nation-state “recogni[zes] . . . inherent
Indigenous authority to make laws over a defined territory” that relate to
“its own social, economic and political development.” 59 Under the
sovereignty model, indigenous authority to self-govern can be found in
institutions similar to those of the nation-state––legislative, judicial, and
executive actions––although other forms of governance, such as traditional
53
See Shin Imai, Indigenous Self-Determination and the State, CLPE Research Paper No.
25/2008;
CLPE
Research
Paper
No.
25/2008,
available
at
SSRN:
http://ssrn.com/abstract=1262780 (September 3, 2008).
54
Id.
55
ANAYA, supra note 48, at 100.
56
Tsosie, supra note 36, at 930 (citing SHIN IMAI, INDIGENOUS SELF-DETERMINATION AND
THE STATE, IN INDIGENOUS PEOPLES AND THE LAW: COMPARATIVE AND CRITICAL, 285, 292
(Benjamin J. Richardson et al. eds., 2009)) (emphasis added).
57
Declaration supra note 3, at art. 46.
58
Tsosie, supra note 36, at 930.
59
IMAI, supra note 53, at 11.
10
governance, may be available.60 The indigenous nation is free to exercise
self-determination by utilizing less conventional forms of government if
they so choose.61
One example of the sovereignty model can be observed in United
States case law. In Talton v. Mayes, the U.S. Supreme Court held that tribes
are individual sovereign nations with inherent powers of self-government
that predates the drafting of the Constitution, and therefore the Fifth
Amendment, does not apply to the functions of tribal governments.62 Indian
nations may be mentioned in the Constitution but their authority to selfgovern does not derive from it and are not bound by its amendments.63 As
will be discussed further in this Comment, federally recognized Indian
tribes within the United States exercise the sovereignty model of selfdetermination, among others.
Unlike the sovereignty model, under the second model of “selfmanagement and self-administration,” indigenous communities gain
“greater control of local affairs and the delivery of services within a larger
settler government legislative framework.” 64 This model suggests that a
source of indigenous authority may derive from, and may be limited by, the
nation-state’s laws and policies. 65 Under this model, the nation-state
allocates funding to an indigenous community for the purposes of operating
programs and initiatives developed by the national government.66 The selfmanagement model can be developed in two forms: self-administration on a
land base and off a land base.67
Under the land base variation of the self-management model,
indigenous community institutions operate nationally funded and developed
social, economic and political programs. For example, Canadian legislation
provided Indian bands and Metís councils with government funding to
administer their reserves as well as funding opportunities for social services
and economic development projects.68 In the United States, the Indian SelfDetermination and Education Assistance Act (“ISDEAA”) of 1975 is
another instrument of the land base variation of the self-management
60
Tsosie, supra note 36, at 930.
Id.
62
Talton v. Mayes, 163 U.S. 376, 384 (1896).
63
The Indian Civil Rights Act (“ICRA”) of 1968 was later drafted in order to resolve the
discrepancy in due process rights issues. 25 U.S.C. § 1301.
64
IMAI, supra at note 53, at 11 (emphasis added).
65
Id., at 18.
66
Id.
67
Id.
68
Id., at 19.
61
11
model.69 Under the ISDEAA, federally recognized Indian tribes administer
a range of federal programs through contracts between individual tribes and
federal agencies.70 In most cases the federal agency involved is the Bureau
of Indian Affairs (“BIA”). Close to two decades after its enactment,
Congress amended ISDEAA in order to create compact agreement
opportunities. 71 Compacts accorded federally recognized Indian nations
with the option of securing federal block grants enabling flexibility in the
tribe’s development and implementation of programs.72 Unlike earmarked
contractual agreements that often proved to be a limitation on tribal
governance, compact agreements afforded tribes a level of discretion in
federal fund expenditures that allowed tribes to meet the specific needs of
their individual tribal members. 73 As a caveat, however, the land base
variation of the self-administration model is limited to reservations or the
like.74
With reference to the off land base variation of the selfmanagement model, indigenous organizations are given national funding to
operate and deliver necessary services such as health and education
assistance programs to the indigenous community. A clear example of off
land base self-administration can be realized in the Aboriginal and Torres
Straight Island Commission (“ATSIC”) of Australia, an organization that
administers nationally funded housing, economic development, and legal
services programs.75 The structure of Alaskan Native governance is another
example. In 1971, President Nixon signed the Alaska Native Claims
Settlement Act (“ANCSA”)76 into the law. ANCSA dismantled traditional
forms of Indian communities concentrated on Indian reservations 77 and
formed indigenous corporate entities chartered under Alaska state law.78
The indigenous corporations have the authority to manage tribal resources
under a business model, but they lack the jurisdictional capacity of Indian
nations within the lower forty-eight states, primarily due to the lack of a
69
Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450
(2006).
70
Tsosie, supra note 36, at 931.
71
Tribal Self-Governance Act of 1994, 25 U.S.C. §§ 450aa–450cc (2006).
72
Tsosie, supra note 36, at 931–32.
73
Id.
74
IMAI, supra at note 53, at 18–19.
75
Id., at 20.
76
Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1606–07, 1618(a) (2006).
77
Nearly all reservations were dismantled under ANCSA. Only one reservation remains––
the Annette Island Reserve.
78
Tsosie, supra note 36, at 932.
12
land base.79 The off land base variation is traditionally developed in areas
where reservation land may not be present, such as in the examples set forth
above. However, it can still be observed in the work of Indian community
organizations such as the Menominee Community Center of Chicago,80
located in Urban Indian communities where reservation land may be
accessible.81 It is clear that there are benefits to tribal communities under
the self-management model, such as access and control of national funding
and more efficient delivery of services. Nevertheless, some scholars suggest
it is still an inadequate replacement for true sovereignty.82
“Co-management and joint management” is the third model of selfdetermination. This model “institutionalizes indigenous participation in
management of lands and resources,” 83 that although may be ancestral
lands, may also be located outside of indigenous jurisdiction or
reservation. 84 This model can be found in shared jurisdictions between
79
Id. (citing Alaska v. Native Vill. of Venetie, 522 U.S. 520, 523, 532-33 (1998), where
the Court held that the test for “Indian Country” is that land must be set aside for the
benefit of Indians, and under the superintendence of the federal government. The Court
further held that the land transferred to Indian-held private corporations without
restrictions, and subsequently reconveyed to the Indian tribe, neither satisfied the “setaside” or “superintendence” requirements and therefore was not Indian Country. Therefore,
the tribe lacked the jurisdiction to impose taxes on non-Indian business activities.) Recently
DOI revised its federal land into trust regulations thereby creating an opportunity for
Alaskan Native tribes to petition for tribal lands subject to their governmental jurisdiction.
See Department of the Interior Announces Final Rule for Land into Trust for Alaska Native
Tribes: Action Advances Tribal Self-Governance and Tribal Sovereignty, DOI Press
Release
(Dec.
18,
2014),
available
at
http://www.bia.gov/cs/groups/public/documents/text/idc1-028734.pdf.
80
ALYCE S. ADAMS ET AL., GOVERNMENTAL SERVICES AND PROGRAMS: MEETING
CITIZENS’ NEEDS, REBUILDING NATIVE NATIONS: STRATEGIES FOR GOVERNANCE AND
DEVELOPMENT 237–38 (Miriam Jorgensen ed., 2007).
81
In 1986, the Harvard Project on American Indian Economic Development undertook a
major research initiative with the hopes of discovering patterns of economic change and
community development in Indian Country. After twenty years of research, they found that
self-determination and economic prosperity are indivisibly linked and apply to those Urban
Indians that reside outside the exterior boundaries of Indian Country. For a discussion on
modern approaches to community development on and off Indian Country, see
REBUILDING NATIVE NATIONS: STRATEGIES FOR GOVERNANCE AND DEVELOPMENT
(Miriam Jorgensen ed., 2007).
82
IMAI, supra note 53, at 18 (citing S. CORNELL, INDIGENOUS PEOPLES, POVERTY, SELFDETERMINATION IN AUSTRALIA, NEW ZEALAND, CANADA THE UNITED STATES 28 (Native
Nations Institute for Leadership ed., 2006)).
83
IMAI, supra note 53, at 11.
84
Id., at 22–23.
13
indigenous nations and the nation-state.85 For instance, in the United States,
the co-management plan executed in the Santa Rosa and San Jacinto
Mountains National Monument gave the Agua Caliente Band of Cahuilla
Indians, the U.S. Forest Service, and the U.S. Bureau of Land Management,
uniform jurisdiction to manage the monument’s public lands.86
Another illustration of co-management can be found on sublevels
within the United States. Today, there are cooperative agreements with
regard to areas of mutual interest made between the states and Indian
nations, 87 and perhaps more illuminating to the autonomous nature of
indigenous nations, inter-tribally. For example, in 2006 the Navajo Nation
and the Hopi Nation entered into an intergovernmental compact that
ascribed a harmonious relationship between both sovereigns and recognized
mutual rights of access to sacred sites and natural resources shared within
their respective jurisdictions.88
The fourth and final model is the “participation in public
government” model of self-determination. Under this model, indigenous
peoples would have complete access to fully participate within the nationstate’s political system.89 Because the United States is a nation of checks
and balances, the political arena is composed of legislative, adjudicatory,
and regulatory institutions. This model can be effectuated in three
variations: a guaranteed seat in the nation-state’s legislative body such as
the Maori representatives of New Zealand, public government such as the
Nunavut region in Canada where anyone can participate in the Inuit voting
process, and individual indigenous legislatures or parliaments. 90
Interestingly, Native Americans currently do not have prescribed access to
any variation of this model. Rather, Native Americans have the right to vote
85
Tsosie, supra note 36, at 933.
Rebecca Tsosie, The Conflict Between the “Public Trust” and the “Indian Trust”
Doctrines: Federal Public Land Policy and Native Nations, 39 TULSA L. REV. 271, 309–
310 [hereinafter The Conflict] (2003). Part IV of this Comment gives a more detailed
discussion of the Agua Caliente case.
87
For instance, the Indian Gaming Regulatory Act of 1988 requires tribes to enter into
intergovernmental compacts with states should they chose to engage in Class III gaming.
25 U.S.C. § 2710(d) (2006).
88
Navajo-Hopi
Intergovernmental
Compact
(Nov.
3,
2006),
http://www.bia.gov/cs/groups/public/documents/text/idc-001890.pdf; see also Historic
Agreement Resolves Navajo-Hopi Dispute Over Tribal Lands in Arizona, DOI Press
Release, available at http://www.doi.gov/news/archive/06_News_Releases/061103b.html.
89
IMAI, supra note 53, at 27–29.
90
Id.
86
14
in their own governmental elections, state elections, and federal elections.91
Unlike other Americans, Indian peoples have tri-citizenship although equal
access to polls remain a struggle. 92 With that in mind, it is especially
important for indigenous nations to fully participate in the nation-state’s
political system because minority group interests are often left unheard. In
the case of Native Americans, they represent less than two percent of the
American population. This model calls for substantive participatory
governance in order to exercise an indigenous nation’s inherent right of
self-determination.93
As the discussion above illustrates, the self-determination models
are not mutually exclusive. The United States employs many of them
simultaneously. In fact, they arguably rely upon or aid one another. Further
discussion of the status of Indian nations within the United States will
continue in sub-part III of this Comment section. Ultimately, selecting a
particular model or models requires nation-states and its indigenous peoples
to negotiate with one another to establish what type of self-determination
works best for their unique relationships. 94 Nonetheless, one object is
certain, the Declaration enunciates indigenous peoples’ inherent rights to
self-determination, regardless of whether that right is acted upon. The
models are helpful in recognizing currently available options but in no way
suggest an exhaustive list.
91
The Indian Citizenship Act gave Native peoples the right to vote in state and federal
embodying the spirit multi-citizenship normative standard preserved in Article 5 of the
Declaration. Ch. 233, 43 Stat. 253 (1924).
92
Until 1948, Native Americans were prohibited from voting in Arizona. English literacy
tests that preventing many Native Americans from placing their votes were not banned
until 1970. Many Native Americans continue to experience voting difficulties. However,
there are strides toward correcting the issues that result in tribal voter disenfranchisement.
The
Arizona
Native
Vote
Election
Protection
Project,
http://www.law.asu.edu/ilc/Admin/NativeVoteArizona.aspx (last visited Oct. 27, 2014).
Whereas most Americans have dual citizenship by belonging to their respective States and
the United States, Indian peoples also carry a third citizenship by belonging to their
respective tribal nations.
93
Tsosie, supra note 36, at 934 (“Native Americans are free to run for public office or to
vote in state or federal elections for representatives of their choosing, or they may be
specific, meaning that a seat is reserved for indigenous participation within a specific body
or commission. In the United States, rights to political representation for indigenous people
are largely general, rather than specific. Individual Native Americans are free to run for
public office at the tribal, state, or federal levels, and they are eligible to vote in elections at
all levels if they otherwise meet the stated criteria to exercise that franchise. Not
surprisingly, very few Native Americans have ever served as federal or state legislators or
judges.”).
94
Id.
15
ii. Cultural Property Rights and Environmental Preservation
As Walter Echo-Hawk has eloquently stated, “[t]he protection of
culture is a major theme in the Declaration. . . . and with good reason:
culture gives reason to human existence.” 95 Yet, throughout history
indigenous cultural objects and knowledge have been subject to commercial
exploitation and misallocation, often in the forms of traditional knowledge
misappropriation and biopiracy. 96 As a result, various international law
doctrines are littered with provisions that recognized the need to protect
cultural diversity.97 The Declaration affirms indigenous peoples’ right to
practice and rejuvenate their cultural customs and traditions and if cultural,
intellectual, religious and spiritual property is taken, 98 the nation-state
should provide redress.99
Article 8 expressly provides that indigenous peoples possess “the
right not to be subjected to forced assimilation or destruction of their
culture” and the nation-state must “provide effective mechanisms for
prevention of, and redress for: . . .[a]ny action which has the aim or effect of
depriving them of their integrity as distinct peoples, or of their cultural
values.” 100 Furthermore, indigenous communities have the right to use,
control, and protect cultural property, such as plants used for traditional
medicines, and all other forms of tangible and intellectual property,
including “genetic resources, seeds, medicines, [and] knowledge of the
properties of fauna and flora.”101 To accomplish this, nation-states must
actively work with indigenous communities.102
Currently, the Declaration can be viewed as the basis for a legally
binding international human rights convention upon which the United States
would have the option of signing. Its principles can be effectuated when
95
ECHO-HAWK, supra note 45, at 47 (2013) (emphasis added).
Id., at 42, 58.
97
Id. at 60.
98
One way misappropriation can occur is when cultural resources are taken or used without
the “free, prior, and informed consent” of the indigenous communities. Declaration, supra
note 3, at art. 11(2).
99
Id., at art. 11.
100
Id., at art. 8 (1), (2)(a) (emphasis added).
101
Id., at art. 11, 24(1), 31.
102
Declaration, supra note 3, at art. 24(2), 31(2).
96
16
used as a tool for persuasion, or, if violated, public embarrassment.103 In its
simplest interpretation, the Declaration is a codification of a set of
significant rights that indigenous peoples, including American Indians,
already possess. 104 By understanding this foundational concept, the
Declaration can be used as an authoritative and aspirational statement of
principles that the United States can refer to in development of future
federal Indian law and policy.105 Bearing in mind that some critics may
choose to overlook the value of the Declaration in its current status, it is
important to note that many of its core functions are based upon current
human rights treaties that the United States is a signatory and can be a
crucial step in preserving the rights of indigenous peoples.
III. FEDERAL INDIAN LAW: RIGHTS TO POLITICAL
SOVEREIGNTY AND THE FEDERAL TRUST RESPONSIBILITY
A. An Overview
Since the beginning of federal Indian law and policy, concepts of
international law have been applied to Native Americans. In 1823, the
United States Supreme Court addressed the issue of Indian land status
within United States, premised upon the international doctrine of
discovery.106 In Cherokee Nation v. Georgia, while admitting that Indian
nations are separate political sovereigns with rights to occupancy of their
land territory and direction of their internal affairs, the Supreme Court held
that they are not foreign nations, but more accurately are “domestic
dependent nations.” 107 The Court reasoned that Indian nations were
geographically located within U.S. boundaries and that as “guardian,” the
United States had a duty to protect the tribal “ward.”108 In the subsequent
case of Worcester v. Georgia, the Supreme Court expressed an exclusive
relationship between the federal government and Indian nations.109 Unlike
103
GOLDBERG, supra note 24, at 114 (explaining that the effectiveness of non-binding
opinions that are adopted by international organizations hinges on the “persuasion and the
public embarrassment of being labeled a human rights violator.”).
104
ECHO-HAWK, supra note 45, at 4.
105
Tsosie, supra note 36, at 925.
106
See Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) (holding that Indian tribes have
a limited title to occupancy and that exclusive and absolute title of the “discovered” land
belonged to the nation-state).
107
Id.
108
See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
109
See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
17
the nation-state or foreign nations, the Marshall Trilogy of cases declares a
third category of sovereign––“domestic dependent nations”––and depicts a
retained limited sovereignty while establishing a critical pillar in federal
Indian law––the federal trust responsibility.
As sovereign nations, Indian tribes have the inherent right to govern
their citizens. Since time immemorial, inherent sovereignty has been
recognized on an intergovernmental platform. For example, the United
States Supreme Court has held that civil adjudicatory issues arising on tribal
land and with regard to a non-Indian and Indian transactions were concerns
of tribal court.110 State jurisdiction over the matter would infringe on tribal
sovereignty and the tribe’s internal affairs.111 The Court has also held that
like other sovereign nations, Indian nations retain inherent tribal sovereign
immunity from suit unless clearly waived or abrogated by Congress.112
However, while “traditional notions of Indian self-government are so
deeply engrained in our jurisprudence that they have provided an important
“backdrop,” . . . against which vague or ambiguous federal enactments must
always be measured,” the “right of tribal self-government is ultimately
dependent on and subject to the broad power of Congress.”113 Therefore,
while sovereignty may be limited by Congress, it is retained until its
limitation and can be used to interpret federal Indian law.
Under the federal trust obligation, the federal government acts as a
trustee to Indian nations, while recognizing the tribal sovereignty of Indian
nations.114 In exercising their power as a trustee, Congress has the authority
to prescribe the distribution of tribal property. 115 Like other forms of
fiduciary trust relationships, an Indian tribe can sue the federal government
for damages if the federal government mismanages trust resources.116 For
example, in 2006, the Navajo Nation filed a suit against United States for
historical mismanagement of tribal fund assets held in trust for the benefit
110
See Williams v. Lee, 358 U.S. 217 (1959).
Id.
112
See Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014).
113
White Mountain Apache Tribe v. Bracker 448 U.S. 136, 143 (1980) (citing McClanahan
v. Arizona State Tax Comm'n, 411 U.S. 164, 172 (1973)).
114
GOLDBERG, supra note 24, at 584–585 (“The trust responsibility was initially conceived
in Cherokee Nation v. Georgia to be a ‘protective shield for tribes against the excesses of
hostile outsiders,’ and transformed to the paternalistic trust doctrine seen in Lone Wolf v.
Hitchcock. Today, the trust responsibility has again since evolved to a U.S. fiduciary
obligation to Indian nations.”).
115
Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977) (holding that the
distribution of Indian property must rationally be to the fulfillment of the trust obligation).
116
See United States v. Mitchell, 463 U.S. 206 (1983).
111
18
of the tribe. 117 After years of negotiation, the U.S. Department of the
Interior signed a settlement with the Navajo Nation authorizing a payment
of over $544 million to the tribe––the largest trust mismanagement
settlement ever paid to an Indian nation.118
While the trust responsibility of the federal government remains
today, it has evolved over time. In the 1903 landmark case, Lone Wolf v.
Hitchcock, the Supreme Court held that Congress retains authority to
unilaterally abrogate treaties between the United States and Indian nations
utilizing Congressional plenary power over Indian tribes. 119 The Court
reasoned that treaties were created to protect the welfare of Indians, and
therefore, Congress, as a trustee, can change them so as to accomplish that
goal as they see fit.120 This case has been described as the Dred Scott case
of Indian law.121 It was a devastating blow to tribal sovereignty and has
been used as a tool throughout Indian law. It is clear that Indian nations
retain a special relationship with the federal government. However, what is
also clear is that such relationship can be modified, limited, or more
drastically terminated as evinced throughout U.S. history.122
To summarize, colonial concepts of “domestic dependent nations”
gave rise to Congressional plenary power yet also created the protectorate
state of which still permeates throughout U.S. federal Indian law. Beginning
in the 1970s, the United States has gradually moved away from pervading
concepts of Indian termination and assimilation, to recognizing an
intergovernmental relationship that promotes an Indian nation’s right to
self-determination and Native nation-building. Moreover, Congressional
plenary power over Indian nations remains steadfast and virtually
unrestrained, while the special trust relationship it is predicated upon is
becoming less prevalent within the construct of federal Indian law. Part IV
117
For more information on the settlement history, see DOI Press Release, available at
http://www.doi.gov/news/pressreleases/secretary-jewell-attorney-general-holder-announce554-million-dollar-settlement-of-tribal-trust-accounting-and-management-lawsuit-filed-bynavajo-nation.cfm.
118
For additional information on another landmark trust mismanagement case, see Cobell
v. Salazar, 53 F.3d. 278 (2009).
119
See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
120
Id.
121
GOLDBERG, supra note 24, at 97 (citing Sioux Nation v. United States, 601 F.2d 1157,
1173. One federal judge described the day Lone Wolf v. Hitchcock was decided as “one of
the blackest days in the history of the American Indian, the Indian’s Dred Scott decision.”);
see also ECHO-HAWK, supra note 45, at 189 (2013).
122
See generally United States v. Kagama, 118 U.S. 375 (1886); Lone Wolf v. Hitchcock,
187 U.S. 553 (1903); United States v. Sandoval, 231 U.S. 28 (1913).
19
of this Comment will address the obstacle of balancing plenary power with
the trust obligation with reference to the HEARTH Act; and how the Act
itself interplays on concepts of tribal sovereignty.
B. The HEARTH Act’s Environmental Review Process and Implications
Prior to the HEARTH Act, tribal communities had several hurdles to
overcome regarding tribal land leasing; lack of financing, environmental
review limitations, lengthy mandated appraisals, problems of rights of way,
civic and cultural restraints, even limitations of trust status. 123 The
HEARTH Act of 2012 was enacted to address one of the most daunting
bureaucratic processes in tribal land leasing––Secretarial approval. 124
However, alongside the Act’s flexibility and promise of a more efficient
process, there remains a need to address potential environmental
restrictions.
In order to understand the potential benefits and limitations of the
HEARTH Act’s required environmental review process, it is important to
clearly identify the Act’s provisions. Section H lays out the considerations
for leasing regulation approval. First, the Secretary must approve tribal
leasing regulations that are consistent with federal agency regulations125 and
123
See Field Hearing on Removing Barriers to Home Ownership for Native Americans
Before the Subcommittee on Housing and Community Opportunity, Committee on
Financial Services, 109th Cong. (2006) [hereinafter Field Hearing]; (“One of the biggest
obstacles in homeownership . . . is that tribal lands are held by the [U.S.] in trust for the
tribes.”) Id., at 51 (statement of Marty Shuravloff, Chairman, National American Indian
Housing Council); (“Right now if you are Apache, you want to go down in Cottonwood
and build a house, own equity, and borrow against the equity, and then you want to come
on the reservation and build your own business, because that’s the only way to have any
kind of equity . . . [s]o business site leasing, along with residential site leasing, and . . .
letting the tribe have that authority themselves is the way to unlock the entrepreneurial
spirit and unlock equity.”) Id., at 37 (statement of Allen Anspach, regional Director of the
Western Region, Bureau of Indian Affairs, Department of the Interior).
124
The HEARTH Act was initially proposed to address the issue of home ownership on
tribal land and has since expanded. The hindrance of the lengthy approval process was
recognized even in the initial stages of the legislative process. Senator Heinrich once stated
that “that a seller is rarely able to wait 2 years to sell their house, and banks are often
unable to hold a mortgage approval for anywhere near that long. . . . families shouldn't be
forced to make such an important decision based on how many months, or years, it will
take a Federal bureaucracy to approve a mortgage on tribal land.” 158 CONG. REC. H268201 (2012) (statement of Rep. Heinrich).
125
To guide the BIA’s approval of individual tribal leasing regulations, DOI issued
HEARTH Act guidance that states, “[i]n determining whether tribal regulations are
‘consistent with’ BIA-leasing regulations, ‘consistency’ is to be interpreted in a manner
20
provide for an environmental review process.126 The environmental review
process must include:
[T]he identification and evaluation of any significant effects of the
proposed action on the environment; and a process for ensuring that-- the
public is informed of, and has a reasonable opportunity to comment on,
any significant environmental impacts of the proposed action identified
by the Indian tribe; and the Indian tribe provides responses to relevant
and substantive public comments on any such impacts before the Indian
tribe approves the lease.127
The Act also provides Indian nations with the opportunity to request
technical assistance from the U.S. Department of the Interior, “upon request
of the Indian tribe, for development of a regulatory environmental review
process.”128 The technical assistance provided would be “made available
through contracts, grants, or agreements entered into in accordance with
Indian Self-Determination Act.”129 Additionally, even where the tribe does
not request technical assistance, if the tribe is receiving federal funding for a
leasing project, the tribe has “the authority to rely on the environmental
review process of the applicable Federal agency rather than any tribal
environmental review process.”130 This provision gives tribes the additional
option of relying on the familiar NEPA process of major federal actions.131
The liability waiver of federal trust responsibility to Indian nations
has proven to be a controversial provision of the Act. The provision
specifically provides that “[t]he United States shall not be liable for losses
sustained by any party to a lease executed pursuant to tribal regulations.” It
is not uncommon for the federal government to be liability free where an
Indian nation has taken control of their resources.132 However, even where
that maximizes the deference given to the tribe. Congress expressly rejected a ‘meets and
exceeds' standard during its final deliberations.” Guidance for the Approval of Tribal
Leasing Regulations under the HEARTH Act, NPM-TRUS-29, at 2 (Jan. 16, 2013)
[hereinafter
HEARTH
Act
Guidance],
available
at
www.doi.gov/cobell/commission/upload/National-Policy-Memorandum-HEARTHAct.pdf. (emphasis added).
126
Id.
127
§ 415(h)(3)(B)(ii).
128
§ 415(h)(3)(C).
129
§ 415(h)(3)(D).
130
§ 415 (h)(5).
131
See BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, INDIAN AFFAIRS
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) GUIDEBOOK, 59 IAM 3-H (2012),
http://www.bia.gov/cs/groups/xraca/documents/text/idc009157.pdf.
132
See United States v. Navajo Nation, 537 U.S. 488 (2003).
21
the trust obligation is no longer present, federal oversight is present insofar
as “the Secretary may, upon reasonable notice from the applicable Indian
tribe . . . enforce the provisions of, or cancel, any lease executed by the
Indian tribe.”133 Moreover, if “[a]n interested party, after exhausting of any
applicable tribal remedies . . submit[s] a petition to the Secretary,” the
Secretary may review tribal compliance with agency regulations.134 Review
of tribal compliance may again result in cancellation of the tribe’s leasing
authority.135
There are many other provisions of the Act that warrant further
analysis. However, the provisions referenced above are the most pertinent
for purposes of this Comment. The next part of this Comment examines
how the inherent human rights of indigenous peoples, as described in the
Declaration, can be used as a structure for reconciling some of federal
Indian law’s shortcomings with reference to the HEARTH Act and tribal
environmental review processes.
IV. IMPLEMENTING INTERNATIONAL RIGHTS OF
INDIGENOUS PEOPLES LAW & POLICY TO RECONCILE THE
HEARTH ACT’S LIMITATIONS
A. The HEARTH Act’s Consistency with Tribal Sovereignty
The HEARTH Act is mostly consistent with tribal sovereignty, with
some issues. Prior to the HEARTH Act, leases were approved by the
Secretary of the Interior. As an arm of the federal government, the Secretary
was required to ensure a NEPA analysis had occurred before leases could
be approved. NEPA required that the BIA maintain detailed information on
significant environmental impacts when it made its decisions and to
guarantee that this information would be available to a larger audience for
comment. NEPA is a procedural statute that still requires the BIA to take a
“hard look” at the environmental impacts of a project before proceeding
with leasing action. 136 NEPA states that if a “major [f]ederal action
133
25 U.S.C. § 415 (h)(7).
§§ 415 (h)(8)(A)–(B).
135
Id.
136
Bark v. United States Forest Service, 2007 WL 756746, 2–3 (“Under NEPA, the
threshold question is whether a proposed project will significantly affect the environment,
thereby triggering the requirement for an EIS. . . . [i]f an agency determines on the basis of
an environmental assessment ("EA") not to prepare an EIS, the agency must prepare a
finding of no significant impact ("FONSI") to explain why the action will not have a
134
22
significantly affect[s] the quality of the human environment,” then an
Environmental Impact Statement (“EIS”) must be prepared, describing the
environmental consequences and range of alternatives. However, NEPA
does not prescribe any substantive outcome from this procedure. A project
may proceed with development even where findings of significant impact
are present. Similarly, the HEARTH Act’s consideration, notice and public
comment period provisions significantly mirror that of NEPA.
One concern of the HEARTH Act’s implications on tribal
sovereignty is that, although a tribe has the discretion under the Act to
create individualized environmental review processes—potentially adding
substantive outcomes based upon culturally relevant procedures that would
automatically trigger mandatory findings of significant impact—tribes still
may develop environmental review processes that substantially adhere to
that of NEPA.137 This question is raised when considering the tremendous
undertaking that the initial development of leasing regulations can impose
upon a tribe. To illustrate, the Navajo Nation was one of the first tribes to
gain authority over leasing of tribal lands and effectually test-drove the
HEARTH Act prior to its enactment. The Navajo Nation has commented
that the development of leasing regulations that would stand against
Secretarial scrutiny took “several years to develop” under their independent
leasing authority.138 To expedite regulation development and avoid delays
in approval, a tribe may be tempted to submit similar NEPA-like
environmental review processes that would arguably limit the exercise of
truly independent tribal sovereignty.
Additionally, similar to NEPA, the HEARTH Act mandates that the
tribe provide the “public” with an opportunity to comment on
significant impact on the environment. [However,] NEPA imposes no substantive
requirements and exists only to ensure agencies publicly consider the environmental
impacts of their actions before going forward. . . . [i]n other words, NEPA ensures a
process and not any particular results.”).
137
Elizabeth Ann Kronk Warner, Tribal Renewable Energy Development Under the
HEARTH Act: An Independently Rational, but Collectively Deficient, Option, 55 ARIZ. L.
REV. 1031, 1055 (2013).
138
Judith V. Royster, Tribal Energy Development: Renewables and the Problem of the
Current Statutory Structures, STANFORD ENVT’L L. J. 120–21 (2012) (“[T]he proposed
HEARTH Act requires any interested tribe to engage in a lengthy and costly process of
developing approvable regulations, and to agree to undertake lengthy and costly
environmental reviews.”) (citing Tribal Energy Self-Sufficiency Act and the Native
American Energy Development and Self-Determination Act: Hearing on S. 424 and S. 522
Before the S. Comm. on Indian Affairs, 108th Cong. 115 (2003) (Navajo Nation Response
to Questions on S. 424 and S. 522)).
23
considerations of tribal land leasing projects. Specifically, the tribe must
ensure that “the public is informed of, and has a reasonable opportunity to
comment on, any significant environmental impacts of the proposed action
identified by the Indian tribe.” 139 The Act does not offer a prescribed
definition of which individuals fall within the category of public, but BIA
guidelines suggest that tribes include a definition within their leasing
regulations. 140 This provision may be considered a restraint on tribal
sovereignty because sovereignty is predicated upon the collective group
right of self-government. If non-tribal members are included within the
definition, they may influence development of tribal law. Nonetheless, it is
clear that tribes have the discretionary authority over defining the term, yet
conceivably, non-tribal citizens may be included.
Before moving forward, it is important to reiterate some critical
concepts explained above. First, the Declaration asserts that the right to selfdetermination is an inherent right of all indigenous peoples, and thus, and
inherent right of Native Americans. Second, self-determination is the
foundation upon which inherent sovereignty and political autonomy stem.
To that end, the right to self-determination can be exercised in a variety of
ways, including employment of truly independent sovereignty, however,
pure sovereignty is but one model of self-determination leaving room for
many other forms of self-determination.
Based on the unique political authority of Indian nations and the
special relationship they share with the federal government, this part of the
Comment suggests that Indian nations incorporate multiple models of selfdetermination consistent with inherent tribal sovereignty and an
innovatively, modern cooperative sense of environmental responsibility.
Indian nations understand that the principle of self-determination in the
modern era is best pursued by embracing the complex interrelationships of
all peoples, tribal members and non-tribal members alike; not just peoples
defined by existing or perceived federally recognized sovereign borders.141
Tribes are correctly moving away from exceptionalism with reference to
environmental preservation, because in a world where the environment
effects all people, jurisdictions are constantly overlapping. The best way to
move forward with development and environmental repair is to accept and
139
§ 415 (h)(3)(B)(ii)(II)(aa).
HEARTH Act Guidance, supra note 125, at 7.
141
ANAYA, supra note 48, at 103 (explain that consideration of all peoples, tribal and nontribal members alike, means considering, “not just the aggregate populations of states and
colonial territories but other spheres of community that define human existence and place
in the world, including indigenous peoples as well as other groups.”).
140
24
learn from normative standards. These conventions advance the goals of
individual Indian nations, while correctly considering state, federal, and
tribal governments, as well as the local communities of which all have a
stake in proper environmental review.
B. Balancing Tribal Environmental Law and Normative Federal Statutory
Frameworks
The Agua Caliente Band of Chauliua Indians (“Chauliua”) are an
example of an Indian nation effectually employing international concepts of
intergovernmental cooperation. The Agua Caliente Indian Reservation
encompasses approximately 31,420 acres of land in Riverside County,
California.142 Since the 1950s, the tribe has been successfully managing the
Indian Canyon nature park and its ancestral remains like rock art, housepits,
irrigation ditches, and food preparation areas are still present and strictly
preserved by the Tribe.143 In 2001 the Tribe also reopened the culturally
significant Tahquitz Canyon, and its more than 200 native species of plants,
to the public.144 Success in managing and reopening the parks derives from
the Chauliua’s use of a combination of traditional and modern
environmental protection processes. 145 In 2000, their success in
management of the parks within their jurisdiction was noticed by the federal
governmental agencies and prompted a historic memorandum of
understanding between governments. The historic agreement provided that
the Tribe would acquired rights to co-manage public tracts of land in areas
that had been reserved for private citizens and federal government
management.146
On October 24, 2000, Congress established the Santa Rosa and San
Jacinto Mountains National Monument.147 The monument was placed under
the joint management of the U.S. Forest Service (“USFS”), and the U.S.
142
Agua Caliente Tribal Habitat Conservation Plan, 1-1 (August 2010) [hereinafter Agua
Caliente THCP] http://www.aguacaliente.org/downloads/THCP/THCP_Chapter1.pdf.
143
James May, Agua Parks: Link Past, Present, IN COUNTRY TODAY MEDIA
NETWORK.COM
(Jan.
24,
2001)
http://indiancountrytodaymedianetwork.com/2001/01/24/agua-caliente-parks-link-pastpresent-86918.
144
See Walk in the Footsteps of our Ancestors, INDIAN CANYONS (Dec. 11, 2014, 2:53 PM)
http://indian-canyons.com/Ancestors.html.
145
Id.
146
Frequently Asked Questions about the BLM-Tribal Land Exchange (April 2012)
http://www.aguacaliente.org/downloads/LandExchangeMapFAQ.pdf.
147
The Conflict, supra note 86, at 309 (citing 114 Stat. 1362 (2000)).
25
Bureau of Land Management (“BLM”).148 However, Congress specifically
gave the federal agencies the authority to enter into cooperative agreements
with tribal nations in order to properly manage the monument.149 Because
the monument location encompasses vast areas of tribal significance the
Tribe is a stakeholder in its proper management. It was the Congressional
authority given to federal agencies that led to the creation of the historical
agreement intergovernmental agreement.
Under the intergovernmental agreement, the Chauliua and the
federal government are able to co-manage complex tracts of highly
fractionated checkerboard land. 150 The agreement gave the Tribe an
opportunity to cooperate and coordinate with federal agencies, even to the
extent of exchanging land in order to facilitate proper environmentallyoriented co-management. Consolidation and co-management of public lands
meant that the Tribe would be able to protect ancestral lands that “have
longstanding cultural and natural resource value to the Cahuilla
people.” 151 Although intergovernmental treaties with tribal nations was
dismantled in 1871,152 the intergovernmental agreement between federal
agencies and the Tribe may be viewed as a modern form of morally binding
cooperation effectuated by Congressional act.
The Tribe has also instituted a Tribal Habitat Conservation Plan
(“THCP”). Although, the U.S. Fish and Wildlife Service (“FWS”) has been
federally changed with conservation obligations under the Endangered
Species Act (“ESA”),153 the Cahuilla’s THCP “was developed to formally
document the Tribe’s traditional strategies for managing land and natural
resources within its jurisdictional territory” and to support the FWS’
mission.154 The THCP describes lands and natural resources within the
Reservation and on other Tribal Lands off the reservation that “provide the
means for spiritual and physical sustenance, as well as economic self148
Id. (citation omitted).
Id.
150
Agua Caliente THCP, supra note 142 (“[T]he Reservation is situated in a checkerboard
pattern on 51 of the 108 sections of land.”).
151
Id.
152
Indian Appropriations Act of 1871, 25 U.S.C. § 71 (1988); Whether Congress had the
authority to remove the President’s power to make treaties with Indian nations is debated.
For a deeper discussion on treaty-making with Indian nations, see Arthur Spirling, US
Treaty-making with American Indians: Institutional Change and Relative Power, 1784–
1911, AM. J. POL. SCI., Vol. 56, No. 1, 84–97 (2011) available at
https://www.princeton.edu/~pcglobal/conferences/methods/papers/Spirling.pdf.
153
Endangered Species Act of 1973, 7 U.S.C. § 136, 16 U.S.C. § 1531 (1982).
154
Agua Caliente THCP, supra note 142 (emphasis added).
149
26
sufficiency, for the Tribe and its members.”155 The plan’s specific goals are
to protect and manage the biological resources important to identified
species’, manage tribal economic development, and to streamline
compliance with the ESA. 156 Additionally, the TCHP serves as a
comprehensive biological assessment of which lands are important for longterm conservation results.
Notably, the Tribe’s THCP recognizes the longstanding tradition in
intergovernmental cooperation in multiple ways. From the outset, the TCHP
makes very clear that the Tribe has ultimate authority over land
management within the reservation under their inherent sovereignty
established by a government-to-government relationship shared with the
United States.157 It does, however, acknowledge that inherent sovereign
authority of land management has been supplemented with delegated
federal authority.158 Second, the plan is unique in supplementing the FWS’
federal list of sensitive species by adding tribally identified lists of sensitive
animal species.’159 Thereby, cooperating with the FWS. Finally, the TCHP
makes mention of alternatives not included in the TCHP for options that
would not result in the incidental taking of listed species. Although, many
of them call for collaboration with habitat plans developed by non-tribal
entities, such as the Coachella Valley MSHCP, and yet the Tribe did not
choose to implement them, 160 the THCP makes clear that the Tribe
recognizes a need and the benefits of to cooperating with other agencies.161
It states that the Tribe is “committed to coordinating its conservation efforts
with those of the MSHCP to the extent practicable.”162 The language of the
TCHP is another depiction of Imai’s co-management model of selfdetermination.
155
Id. (emphasis added).
Id.
157
Id. at ES-1.
158
Id. (“The Tribe’s authority . . . flows from its inherent sovereign authority supplemented
by delegated federal authority. The Agua Caliente Band of Cahuilla Indians’ Constitution
and by-laws, approved by the Commissioner of Indian Affairs on April 18, 1957, delegated
to the Tribe specific federal powers and authority over all lands of the Reservation.
Specifically, Article V. a vests with the Tribal Council the power to ‘protect and preserve
Tribal property, including wildlife and natural resources.’”).
159
Id.
160
Id. at 5-5 (primarily because “[they] could not serve [the] functions for the Tribe and its
members, not only because [they] would not reflect certain values that are unique to the
Tribe, but also because the implementing parties do not have jurisdiction over many
aspects of the Reservation.”).
161
Id.
162
Id.
156
27
Not surprisingly, in September of 2014, the Agua Caliente Band of
Chauliua Indians business leasing regulations were approved under the
HEARTH Act. The Agua Caliente’s environmental review process
significantly replicates the federal NEPA process. 163 Under the Tribal
Environmental Policy Act (“TEPA”), if a major tribal action occurs on or
directly affects tribal property and has a “direct and demonstrable effect on
the human physical environment,” then an environmental assessment
(“EA”) must by prepared to determine if the action is a finding of no
significant impact (“FONSI”) where no further action need to be taken and
the project may proceed, or if an EIS must be prepared.164 TEPA defines a
FONSI, EA, and an EIS as they are defined in the NEPA regulations.165
However, unlike NEPA’s general concern on reducing adverse
effects to the quality of the human environment, TEPA’s Statement of
Environmental Policy specifically calls attention to the need to promote the
best use and development of real and personal tribal property.166 It also
recognizes that development activities have a direct effect on and may
threaten the tribe’s cultural resources. 167 Moreover, the environmental
checklist form has a section devoted to addressing the cultural resources
that may be significantly impacted by a proposed project.168 The section
includes addressing whether there is a potential affect to “unique ethnic
cultural values” or access to sacred sites.169 The form also calls specific
attention to the locally designated natural plant communities, such as the
creosote plant that traditionally was made into a tea for curing common
colds and a shampoo for addressing dandruff.170 Notably, the form includes
a section that addresses the “mandatory findings of significance” when a
project threatens to eliminate important examples of native history.171 The
Agua Caliente remain the primary land use manager and steward of natural
resources within the exterior boundaries of the reservation.172 Conceivably,
163
See Tribal Environmental Policy Act, Ordinance No. 28, March 7, 2000 [hereinafter
Agua Caliente TEPA].
164
Id.
165
40 C.F.R. 1500.
166
Agua Caliente TEPA, supra note 163.
167
Id.
168
Agua Caliente Band of Chauliua Environmental Checklist Form, at 4, updated April
2013 [hereinafter Checklist], available at
http://www.aguacaliente.org/downloads/2013_TEPA_Checklist.pdf.
169
Id.
170
May, supra note 143.
171
Checklist, supra note 168, at 10.
172
Agua Caliente THCP, supra note 142, at ES-1.
28
the tribe retains the discretion of determining what examples of native
history would be threatened.
Currently, the tribe’s land use and development ordinance does not
reflect changes pursuant to HEARTH Act adoption, 173 however it does
speak to the spirit of the tribe’s sovereign right to make laws that reflect
their appreciation and incorporation of cultural customs and traditions in to
their development process. First, “all covered projects within the Mountains
and Canyons Conservation Area [(“MCCA”)] Overlay Zone shall require a
Conditional Use Permit and shall be subject to the [TEPA].”174 Under the
TEPA the environmental impacts of a project in the MCCA overlay zone
must not disturb 85 percent of the species habitat in order to maximize
avoidance of the most sensitive biological resources.175 Interestingly, not
unlike other tribal nations that have had independent leasing regulations
approved under the HEARTH Act, the burden of proving the development
application complies with tribal environmental law is placed on the
applicant, not the tribe.176 Furthermore, in other development project plans
invasive non-native species of plants are prohibited in landscaping.
The Declaration describes cooperative negotiations between
indigenous nations and the nation-state. The Agua Caliente Band of
Chauliua Indians’ intergovernmental agreement and cooperation with state,
local and federal governments depict the perseverance of a tribe and the role
models of international self-determination play in U.S. Indian law and
policy. Throughout, the Tribe’s laws and policies they call for use of
traditional methods and cultural relevant processes. As Dr. Jessie Hohmann
has restated in his most recent article, “the right to cultural identity is a
fundamental right––and one of a collective nature––of the indigenous
communities, which should be respected in a multicultural, pluralistic and
democratic society.”177
2. Environmental Law Generally
Although the HEARTH Act is specific to Indian country, it may be
helpful to consider how the United States has developed other
173
Ordinance No. 45 the Tribal Land Use Code was last amended in October 2013 while
the tribe’s business leasing regulations were approved in September 2014.
174
Tribal Land Use Code, Tribal Ordinance No. 45, Section 5.1.0-5.1.1.
175
Id.
176
Id. at art. X Section 10.2.0.
177
See Jessie Hohmann, The UNDRIP and the Rights of Indigenous Peoples to Existence,
Cultural Integrity and Identity, and Non-Assimilation (forthcoming 2014).
29
environmental statutes. Generally, statutes of general applicability that do
not mention Indian nations usually still apply to tribes so long as they do
not infringe on treaty rights or tribal sovereignty.178 Because environmental
law is recognized as an area that affects all United States citizens,
environmental statutes that mandate certain environmental reform
nationwide usually directly mention Indian nations. While environmental
statutes often do not immediately address the concerns or affects their
enactments will have on Indian Country, they are usually amended to
include provisions with direct reference to Indian nations as to avoid
ambiguity that may cause adverse affects to tribal sovereignty. For example,
the Clean Water Act (“CWA”) has been specifically amended to require the
EPA to treat Indian tribes as they would states within the statutory
framework created by the CWA. 179 Also, supporting documents of the
ESA 180 and the Bald Eagle Protection Act of 1940 181 both specifically
address the retention of tribal treaty rights and traditional tribal practices but
also recognizes the shared interest of the United States.182 Leasing of tribal
lands inherently concerns environmental considerations, it follows that
while tribal sovereignty receives deference, environmental statutory norms
of the United States should not be dismissed.
Conceding that it may be likely that Tribes will incorporate the
frameworks of consideration and transparency present in federal
178
See San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (holding that if a
statute of general applicability does not infringe on a treaty right or tribal sovereignty and it
is necessary to execute Congressional intent, then it is appropriate to apply to Indians
(citing Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960))).
Environmental statutes like the Clean Water Act, Endangered Species Act, and others have
been amended to include Indian applicability because it would be impossible to implement
their environmentally oriented goals without addressing Indian Country.
179
See City of Albuquerque v. Browner, 97 F.3d 415, 418 (10th Cir. 1996) (“In 1987,
Congress amended the Clean Water Act to authorize the Defendant EPA to treat Indian
tribes as states under certain circumstances for purposes of the Clean Water Act. Through
the amendment Congress merged two of the four critical elements necessary for tribal
sovereignty—water rights and government jurisdiction—by granting tribes jurisdiction to
regulate their water resources in the same manner as states. Congress's authorization for the
EPA to treat Indian tribes as states preserves the right of tribes to govern their water
resources within the comprehensive statutory framework of the Clean Water Act.)
(emphasis added).
180
16 U.S.C. § 1531 (1988).
181
16 U.S.C. § 668 (1972).
182
See Working with Tribes: American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act, Secretarial Order No. 3206; See also
http://www.justice.gov/sites/default/files/ag/legacy/2012/10/22/ef-policy.pdf.
30
environmental law, inherent tribal sovereignty is retained in tribal authority
to include provisions that address their individual culture, customs, and
traditions. Additionally, the Act is not meant to be a once-size-fits all or an
instant cure to the economic development obstacles Indians nations face.
Rather, it is a voluntary option that provides tribes the practical ability to
accord tribal lands by assuming leasing responsibility. Moreover,
understanding that the benefits of environmental preservation and the
burdens of environmental responsibility affect all citizens, many tribes, like
the example to follow, have and continue to develop strategic
environmental review processes that incorporate their unique cultural values
and customs, and satisfy environmental norms of the nation-state.
3. Defining “Public”
Tribes maintain the obstacle of defining who will participate in the
Act’s mandated notice and comment periods. In other words, defining the
“public” for purposes of their environmental review process. Unlike similar
self-determination statutes,183 tribes have the discretion in determining who
belongs to that category, and whether it will include both tribal and
nontribal citizens. Incorporating nontribal citizens in the category may upset
tribal sovereignty by creating room for nontribal traditions, cultures,
practices, and laws that may effect the leasing development of tribes.
However, by applying international models of self-determination, the
relationship between Indian nations and the federal government can be a
cooperative one of both tribal and non-tribal citizens that will ultimately
provide a practical and attainable sovereignty with regard to environmental
protection policies.
To illustrate, on November 24, 2013, the Hualapai Tribe of Nevada
released their revisions to the Rules to Implement the Hualapai
Environmental Review Code. 184 They found that there were significant
benefits to incorporating the HEARTH Act’s NEPA-like environmental
procedures into their land use permit application approvals.185 Specifically,
“[t]he changes . . . in its Rules were mainly intended to make the process for
environmental review of permit applications conform to the standards in the
183
Kronk Warner, supra note 135, at 1055 (“[T]he legislative history related to . . . the
Tribal Energy Resource Agreement (“TERA”) provisions of the Energy Policy Act of 2005
explains that the ‘public’ includes both tribal and nontribal citizens.”).
184
Rules to Implement the Hualapai Environmental Review Code, at § Note (2013)
[hereinafter TERC].
185
Id.
31
HEARTH Act for proposed development activities that do not require
approval by the BIA. The . . . Rules do not address leasing under the
HEARTH Act but, rather, only the environmental review process.”186 The
Hualapai Tribe used a “bottom-up” participation approach to create an
environmental review that matched both tribal and federal interests in
planning and implementation of projects while retaining the trust
responsibility.
The Hualapai Tribe defines “public” as the people who may be
affected by the environmental impacts of proposed development, and
generally includes “tribal citizens and others who live or work within the
Hualapai Reservation.”187 This is broad enough to address concerns of nontribal members but specific enough to speak only to those who maintain
continuous contact with the tribe by residing or working within the
reservation’s exterior boundaries. In this way, non-tribal citizens may be
able to influence tribal permit approvals but only to the extent they will be
effected by their approval. This type of definition not only addresses
concerns of tribal citizens but also those of non-tribal citizens that have a
valid stake in the environment that surrounds them, and adheres to federal
expectations in furtherance of practical sovereignty of territory.
In the spirit upon which the Declaration was drafted, 188 the
HEARTH Act is an example of legislation that accords tribes the
opportunity to promulgate independent leasing regulations with an
environmental review process that focuses on their independent tribal
concerns while remaining cognoscente of local, state and federal interests.
The HEARTH Act, and legislation like it, should be viewed as a
compromise, a call for a cooperative-relationship with the goal of effective
and practical sovereignty. It encompasses the practical concept of selfdetermination in order to achieve political sovereignty and self-government
with limited federal oversight.
V. CONCLUSION
Concepts of the Declaration create a lens that should be used in
review of the HEARTH Act and provide a manner in which its limitations
186
Id.
Id. at 5.
188
Declaration, supra note 3, at annex (“Convinced that the recognition of the rights of
indigenous peoples in this Declaration will enhance harmonious and cooperative relations
between the State and indigenous peoples, based on principles of justice, democracy,
respect for human rights, non-discrimination and good faith.”).
187
32
can be reconciled. In no way should inherent sovereignty be eliminated, for
it is the foundation for the govern-to-government relationship Indian nations
share with the federal government. However, the Declaration’s indigenous
self-determination principle and thus, sovereignty can be effectuated in a
variety of ways. In light of the unique history Indian nations have had with
the federal government, practical sovereignty can be pursued with
implementation of the co-management and joint-management models of
self-determination. Negotiating this relationship may mean acceptance of
some “sovereignty limitations” of the HEARTH Act but posits the revived
sovereignty suitable to challenge and substitute NEPA’s purely procedural
requirements, with substantive requirements and promote economic
development without secretarial approval.
By incorporating culturally relevant concerns and knowledge and
modeling HEARTH’s environmental review processes to meet federal
standards, tribes will be able to attain practical sovereignty and
intergovernmental cooperation. However, problems may still be present in
tribal environmental law under the HEARTH Act. Who will decide whose
cultural preservation rights outweigh interests others present? Will this
become a problem in ownership battles of cultural rights to things like
preserving plant genetics in the future? Can a tribe’s ceremonial use of
certain threatened plants be combated by a neighboring tribe with an
interest under this logic? If that happens, will that further indigenous efforts
to rights of plant genetics or hinder them?
Even still, the HEARTH Act has the potential of reinstituting
substantive environmental review based upon a tribally customary
environmental ethics in order to protect unwavering cultural and spiritual
associations with the land. The Declaration and concepts of
intergovernmental co-management provide a roadmap for tribes making
preservation of cultural property and environmental resources achievable.
By balancing authority between individual tribal councils and the federal
government, as well as by adopting legislation such as the HEARTH Act,
practical sovereignty is feasible.
33