Articles
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Rich McAllister, Spring 2009
The Clean Air Act (CAA or the Act) is an important cornerstone of the Federal environmental statutes that protect the quality of the nation’s air and waters. Indian tribal governments understandably wish to manage air quality within their reservations and to address air pollution that affects their lifeways. Reservations in the Pacific Northwest have common problems with particulate matter air pollution, such as from open burning and fugitive dust, which can endanger people’s health and safety, as well as cause other environmental impacts such as regional haze. In addition to being able to use a tribe’s sovereign authority, the 1990 amendments to the CAA expressly grant Federally recognized Indian tribes the power to undertake and assume duties under Federal authority. This article first reviews the authorities available to tribes and EPA for managing air quality in Indian country, and then discusses the several approaches that a tribe can consider when deciding how to become involved in air quality issues. For the most part, this article is written from EPA’s perspective about implementation of the Act, and does not review the many ways that tribes are interested in air quality outside of Indian country to address climate change or off-reservation air pollution that may affect reservation air quality or a tribe’s natural resources.
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Dean B. Suagee, Spring 2009
Fundamental changes are coming as we move toward a post-fossil-fuels economy. Global climate change is a compelling reason why we need to shift to an economic order that uses energy efficiently and meets most of our needs for energy services with renewable resources.
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Dean B. Suagee, Spring 2009
Where do federally recognized Indian tribes fit in the development of environmental law? Where do American Indian and Alaska Native cultures fit into the landscape of environmental protection and natural resources management? The answer that I would give to both questions is a lot of places.
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Starla K. Roels, 2006
The Department of Health and Human Services (DHHS) published final privacy standards for the protection of individually-identifiable health information on August 14, 2002. The privacy standards are part of the regulations promulgated under the administrative simplification provisions of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. These HIPAA privacy protections raise some interesting questions for Indian health care programs regarding privacy and tribal governmental provision of health care, disclosures related to cultural differences or varied governmental structures, and the health and safety of Indian people. This article explores the emerging importance of health care privacy in tribal health care facilities.
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F. Michael Willis, Timothy C. Seward, Spring 2006
"You must first change the way people think." That was the wisdom passed to a representative of the Washoe Tribe by an indigenous Buryat monk from the Russian state Buryatia, discussing how to protect Lake Baikal and the lands and natural resources of cultural importance to the indigenous people that region in southern Siberia. Notwithstanding international norms and national laws to protect indigenous peoples’ customary use and tenure of their lands, persuading nonindigenous authorities and businesses to respect these rights demands innovative strategies that blend a variety of approaches and tools. As economic globalization introduces commerce to new regions and private actors seek to exploit new resources, indigenous peoples’ cultural identity and very survival may hinge upon their ability to design new tools and breathe fresh life into existing mechanisms to change the thinking of governments, businesses, and the public at large.
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Steve D. Osborne, Geoffrey D. Strommer, June 2005
Today Alaska Native tribes face one of their most difficult challenges since the days of the Alaska Native Claims Settlement Act (ANCSA). Ever since the United States Supreme Court ruled in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), that ANCSA largely extinguished “Indian country” in Alaska, and thus the tribes’ territorial jurisdiction, the extent of Alaska tribal sovereignty and authority has been shrouded in uncertainty.
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Steve D. Osborne, 2003
As any New Age shaman - and many grave robbers - can tell you, Indians are hot. As appreciation of traditional Native American cultures has grown over the last few decades, so too has the market in objects and experiences thought to express those cultures.1 To the extent that it indicates respect for Native American tribes and individuals and offers them a chance to profit in the market, this development has been embraced.
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Dean B. Suagee, Fall 2002
American Indian and Alaska Native tribes inhabit special places in the landscape of American democracy. This article begins and ends with this principle-federally recognized tribes have a special status in our system of government. Over the course of American history we should have learned that tribal sovereignty within a recognized homeland is crucial for tribes to be able to maintain their cultural distinctiveness, to exercise what might be called cultural self-determination. By “cultural self-determination” I mean the process of a tribe deciding for itself how its way of life changes over time, including deciding what aspects of other cultures the people who comprise a tribe adapt for their own uses. The concept of cultural self-determination overlaps with the concept of “cultural sovereignty,” although I will save my thoughts on this topic for the end of this article.
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Jerry C. Straus, Fall 2000
In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA).1 The states, disappointed with certain aspects of the IGRA legislation, launched a war against Indian tribes to stop them from conducting the gaming which Congress had determined was a vital source of economic development for tribes and a proper exercise of tribal sovereignty.
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Edmund Clay Goodman, 2000
As courts protected off-reservation resource rights for Native American tribes on paper, they consistently left unanswered the question of who will protect those resource rights on the ground. This Article traces the development of the recognition and protection of tribal off-reservation legal rights to demonstrate that tribes have an off-reservation comanagement right as well. Further, the Article articulates key principles that must be present in order for tribal comanagement to be successful.
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Dean B. Suagee, John P. Lowndes ::
Winter 1999
Environmental law as it has evolved in the United States can be described as “environmental federalism.” Federal laws establish the basic framework for protecting and restoring air and water quality, managing wastes, dealing with hazardous materials, and a range of other subjects. Within the framework of these federal laws, states are required to perform certain functions, and they have the option to perform other functions pursuant to delegations of authority from the federal Environmental Protection Agency (EPA). States also have the option, through the exercise of their sovereignty, to enact and carry out laws that deal with aspects of environmental protection that are not covered by federal law.
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Craig A. Jacobson, Geoffrey D. Strommer, 1999
Since the end of the Cold War, the United States Department of Defense has been engaged in a process of downsizing the military bases it uses to support defense objectives. This process is controlled by the Base Realignment and Closure Act (BRAC) and has already resulted in the closure of a large number of bases in the United States through BRAC 88, BRAC 91, BRAC 93, and BRAC 95.
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Dean B. Suagee, 1999
These communities [of indigenous or tribal peoples] are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins. . . . It is a terrible irony that as formal development reaches more deeply into rain forests, deserts, and other isolated environments, it tends to destroy the only cultures that have proved able to thrive in these environments.
“One must never go against the forces of nature.”
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Starla K. Roels, 1998
This Article examines the nature of the right to fish that Indian tribes reserved in treaties with the United States Government, concluding that the exercise of the treaty right to fish is a compensable Fifth Amendment property right.
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Christopher T. Stearns, Dean B. Suagee, Winter 1994
Indigenous peoples seek recognition under international law of their collective human rights to govern themselves within their traditional homelands. They seek assistance in defending their homelands against environmentally destructive and culturally devastating so-called “development.” The Draft Declaration of the Rights of Indigenous Peoples (Draft Declaration), which is under consideration in the United Nations (UN), declares that indigenous peoples are entitled to certain enumerated human rights, including the right of self-determination, and that they are entitled to assistance from national governments and the international community in exercising these rights.
If we can assume that the Draft Declaration eventually will be adopted by the United Nations General Assembly with substantive provisions acceptable to indigenous peoples, that adoption will constitute the formal reversal, as a matter of international law, of hundreds of years of practice by the world's states. Achieving widespread reversal in nations' actual practice will be much more difficult. Established patterns of dominance over indigenous peoples, and exploitation and expropriation of their homelands by nations with more powerful technologies and domineering worldviews, will take time and effort to change. The recognition in international law of the human rights of indigenous peoples will be an important step in the right direction, but it certainly will not be the end of the struggle. Rather, it will only begin a new era of the struggle.
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Dean B. Suagee, 1994
Once, a long time ago, Turtle organized a war party against the Human Beings. As he was paddling his canoe down the river, he chanced upon Bear, who asked him where he was going. Turtle said that he was going to make war on the Human Beings, the ones that call themselves the Haudenosaunee (who are more commonly known now as the Iroquois). In explaining his course of action to Bear, Turtle said, “Too long they have made war on animals. Now is the time for us to strike back.” When Bear offered to join in, Turtle turned him down, purportedly because Bear would be too slow but more likely because Bear was just too big for Turtle's small canoe. Turtle also passed up an offer by Wolf to join his war party. His stated reason was that Wolf was too fast and that he would run away and leave Turtle behind, but the real reason was that Turtle had gotten a good close look at Wolf's long sharp teeth.
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S. Bobo Dean, 2000
In 1970, President Nixon sent to the Congress a Message on Indian Affairs which represented the most innovative and far reaching approach to change in the field of Indian affairs since so-called "Indian New Deal" in the Roosevelt Administration.
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S. Bobo Dean, 1971
The Indian tribe is a unique component in our federal system of government. Unlike all our other governmental institutions, the tribe is not a creature of the Constitution of the United States, nor of the federal government created by the Constitution, nor of the states which created the Constitution.
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