The Effect of Historical Tribal Policy and Property Rights on Environmental Regulation

Before there were Europeans in the United States, there were Indigenous people. They governed independently through sophisticated governments that included tribal laws, cultural traditions, religious customs, and societal systems. Native American nations treated each other as sovereign governments, often negotiating treaties with each other to govern trade, hunting, and other affairs. When Europeans colonized the Americas, they generally treated Native Americans differently—as a people to be conquered, ruled, and, at times, owned as enslaved persons. From that history came two approaches to federal treatment of Native American tribal members: (1) as a political group and an independent sovereign and (2) as a minority group subjected to racial injustices and discrimination. In recognition of this multifaceted history, this article refers at times to “Indian Nations” or “Indian Tribes” in general reference to a political entity with sovereign rights, and to Native American people and persons with respect to Native American cultural identity. This dichotomy also shaped the rights of Native Americans since colonization dictated property rights, land ownership, and jurisdictional boundaries that, as this article describes, in turn influenced modern environmental regulation.

Modern tribal governance grew from repressive federal policies. Now modern tribal governments often look akin to a state government, with an independent executive branch, policy-making branch, and court system. Separate from tribal sovereign governments, some federal environmental rules permit tribes to develop their own environmental regulations within the framework of environmental statutes. But identifying tribal jurisdiction under federal environmental regulations requires a complex analysis of what constitutes tribal land, a legal analysis that is steeped in centuries of United States’ history. This article tells the story of how we got to today’s mishmash of treaties, statutes, regulations, rules, and court decisions governing tribal jurisdiction and land boundaries, and discusses how this rocky foundation sets the stage for current litigation, statutory interpretation, and environmental policy.

Johnson v. McIntosh Established Federal Control over Indian Tribal Affairs

In 1775—one year before the Declaration of Independence—Thomas Johnson and other British citizens purchased land in Virginia from the Piankeshaw Indian Tribe. Decades later, in 1818, William McIntosh purchased 11,000 acres of land from Congress, some overlapping with the land purchased by Johnson. Johnson’s heirs sued McIntosh in federal court and sought a declaration that as descendants of the man who purchased land from the Piankeshaw, the Johnsons were the rightful owners of the property.

The Court rejected Johnson’s arguments. In its landmark decision Johnson & Graham’s Lessee v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court set the stage for centuries of disputes over tribal property rights. The Court held that tribes themselves cannot sell property to individuals because the federal government has the sole right to negotiate with Indian Nations. So, the Court concluded, McIntosh had superior title because Johnson’s claim to the land was derived from a sale that the Indian tribe did not have the right to execute.

The Court noted a distinction between the right to occupy land and the power to sell land:

[The Indians] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.

Id. at 574.

Johnson v. McIntosh and two cases that followed—Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832)—confirmed federal authority over Indian tribal affairs and established that the federal government has a trust responsibility for Indian tribes. These decisions paved the way for the future of Indian tribal policy in the United States.

History of Federal Indian Policy: Setting the Stage for a Patchwork of Tribal Jurisdiction

After Johnson v. McIntosh and the cases above, the U.S. government adopted a series of vacillatory approaches to its trust responsibility, which dictate current tribal jurisdictional boundaries.

From the 1820s to the 1850s, known as the “Removal Era,” the federal government sought to displace Native Americans to create room for western expansion of U.S. interests. In 1830, Congress passed the Indian Removal Act, which resulted in the infamous and deadly “Trail of Tears,” in which thousands of Cherokee were forced to walk over a thousand miles from Georgia to Oklahoma. This process fractured tribes and resulted in related, but distinct, tribal communities.

Then came the Reservation Era. From approximately 1850 to the early 1890s, it was U.S. policy to unilaterally and forcibly relocate Native Americans to reservations—legally defined portions of land that were specifically allocated to federally recognized tribes. The terms of reservations are governed by treaties, and some tribes have multiple treaties that govern different forms of property rights; some may govern location and some may be specific to hunting and fishing rights. The resulting patchwork of federal regulations means that each reservation has slightly different terms governing its relationship with the United States as well as the tribal control over its land and jurisdictional boundaries.

Next, in the Allotment and Assimilation Era, which spanned from the late 1890s to the early 1930s, it was federal policy to force Native American assimilation to white customs. As part of this effort, Congress passed the Dawes Act, which was designed to break up reservations and tribal lands by providing allotments of land to Native American families. As it relates to identifying tribal land and property ownership, the allotment policy means that some land may be considered “Tribal land,” but not “reservation land,” further confusing tribal jurisdiction and control.

The New Deal Era brought with it new policies toward the federal government’s approach to Indian law. From the mid-1930s to the mid-1950s, it was federal policy to treat tribes as independent sovereigns that could and should exist for an indefinite period. Responding to pressure to reform the way the federal government treated reservations, the Indian Reorganization Act of 1934 gave tribes more rights to self-government and returned reservation land to tribal ownership, if the land had not been acquired by a different entity in the intervening time.

The federal government reversed course again from the mid-1950s to the late 1960s. In the Termination Era, it was federal policy to work to terminate the federal trustee obligations to tribes that was recognized in Johnson v. McIntosh. Policies unilaterally terminated tribes, removing over a million acres from trust status and stripping Native Americans of their tribal citizenship, and encouraged Native Americans to move to urban areas for cultural assimilation with white culture. Legislation transferred civil and criminal jurisdiction over Native American communities from the federal government to state governments in some instances, which resulted in concurrent state-tribal jurisdiction over some tribal lands.

Finally, in the current Self-Determination Era, prompted by civil rights activism in the 1960s, federal policy supported a return to tribal self-government and a new wave of tribal leadership. Tribes now have the authority to establish their own governments, which often, but not always, function a bit like a state government—with an executive decisionmaker, a legislative authority, and a court system. Each tribe can choose for itself how to exercise its jurisdiction and where it chooses to assert jurisdiction within these boundaries.

In each era, as tribes were fractured, stripped of rights, and rebuilt, tribal jurisdictional boundaries shifted. Because modern jurisdictional boundaries depend on how jurisdictional boundaries and property rights moved in each era, a tribe may have different types of property rights and authority within different jurisdictional boundaries. This, in turn, impacts how environmental laws are applied to and applied by Indian Nations today.

Usufructuary Rights—A Property Right to Use Natural Resources

Recall the distinction that the Supreme Court drew in Johnsonv. McIntosh between the right to use and occupy land and the right to own land. In some ways, this distinction set the stage for a unique type of tribal rights: “usufructuary rights.” Usufructuary rights are a form of property rights that allow parties to use and benefit from a property, distinct from property ownership. Many tribal treaties included a reservation of usufructuary rights that allowed tribes to continue using land for hunting, fishing, or gathering, even without a right to own or occupy the land. For example, the Treaty Between the United States and the Flathead, Kootenay, and Upper Penddoreilles Indians states:

The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.

Treaty Between the United States and the Flathead, Kootenay, and Upper Penddoreilles Indians, art. 3 (Apr. 18, 1859).

Because the specific language that governs usufructuary rights varies by treaty, the specific contours of usufructuary rights will be tribe-specific and may require an interpretation of several treaties. For example, in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), the U.S. Supreme Court considered whether an 1855 treaty revoked usufructuary rights reserved in an 1837 treaty with the same tribe. The 1855 treaty stated that “said Indians do further fully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere.” Id. at 184 (quoting 10 Stat. 1165–1166). The Court, after considering the historical context, held that this language terminated only the remaining land claims and not the usufructuary rights reserved in the 1837 treaty because it did not mention abrogating previous treaty rights, which is something the U.S. government knew how to do.

Some tribes have used usufructuary rights as a basis to bring environmental causes of action. In 2021, the White Earth Band of Ojibwe sued the Minnesota Department of Natural Resources (DNR) in White Earth Tribal Court to challenge the DNR’s decision to grant a water appropriation permit. See generally Manoomin v. Minn. Dep’t Nat. Res., Complaint, Case No. GC21-0428 (White Earth Band of Ojibwe Tribal Ct.). The Band asserted that, by granting the permit, which the Tribe claimed allowed for impermissible water pollution, the DNR infringed on its usufructuary right to gather wild rice—“Manoomin” in Ojibwe—which was granted to it by an 1837 treaty between the Band (called “the Chippewa” by the United States at the time) that stated: “The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers, and the lakes included in the territory ceded, is guarantied [sic] to the Indians, during the pleasure of the President of the United States.” Id. at 3 n.2.

In its Complaint, the Band cited to a series of 44 treaties and federal court decisions interpreting the treaties to argue the “Chippewas have pre-existing usufructuary and water property rights that have been intentionally and systematically ignored” and sought a declaration that “Plaintiff tribal members possess the individual legal rights to harvest manoomin, and protect and save manoomin seeds, and protect the waters that support Manoomin within the 1855 ceded territory and beyond, free of DNR interference and regulation.” Id. at 9, 11. The Tribal Court rejected the state of Minnesota’s motion to dismiss the case. See generally Manoomin v. Minn. Dep’t Nat. Res., Order, Case No. GC21-0428 (White Earth Band of Ojibwe Tribal Ct. Aug. 27, 2021). In response, the state appealed to the White Earth Band of Ojibwe Court of Appeals and sued the tribal judge in federal district court. See Manoomin v. Minn. Dep’t Nat. Res., Opinion, Case No. AP21-0516 (White Earth Band of Ojibwe Ct. App. Mar. 10, 2022). Ultimately, the White Earth Band of Ojibwe Court of Appeals concluded that tribal courts lacked the jurisdiction originally sought by the Tribe, so the case was dismissed. The federal district court also dismissed the case, concluding the state could not sue the Tribe in federal court over this issue.

The case of Manoomin is an example of ways that tribes might assert that a state infringed on usufructuary rights to raise environmental issues. The case was dismissed only on jurisdictional grounds. Future cases may further develop the extent to which usufructuary rights are property rights that give tribes a right to sue over natural resources.

Tribal Regulatory Authority over Natural Resources

The Clean Air Act (CAA), Clean Water Act (CWA), and Safe Drinking Water Act (SDWA) expressly provide authority for Indian tribes to regulate like a state under certain conditions. The Environmental Protection Agency (EPA) is authorized to treat eligible federally recognized Indian tribes in a manner similar to a state through “Treatment as a State” (TAS). To be eligible for TAS, a tribe must be federally recognized, have a governing body carrying out substantial government duties and powers, have the ability to implement the program consistent with the governing act and EPA regulations, and have the ability to identify the exterior boundaries of the reservation and, for nonreservation areas, to demonstrate the basis for jurisdiction.

TAS allows eligible tribes to submit CAA, CWA, or SDWA programs to EPA; it does not require that tribes develop their own programs. And tribes can implement a whole program, or even just part of a program as relevant to the tribe. Once a tribe’s program has been approved by the EPA, tribes have the same authority as delegated states under the CAA, CWA, and SDWA. But because the TAS program applies based on tribal jurisdiction, it brings with it all the uncertainty surrounding property rights that follows from the centuries of shifting federal policy toward Indian tribal land discussed above.

For example, in HRI, Inc. v. EPA, 198 F.3d 1224 (10th Cir. 2000), the Tenth Circuit considered whether the EPA’s approval of the Navajo Nation’s designation of jurisdictional land for TAS under the SDWA’s underground injection control program was proper, including “the level of procedural formality required for EPA decisions regarding federal Indian country jurisdiction under the SDWA; the effect of state adjudications against a tribe on EPA’s authority to assess whether lands are Indian country; and the Indian country status of certain federal trust lands in the Eastern Navajo Agency.” Id. at 1230. The EPA had approved the Navajo Nation for TAS with respect to “all lands located within the exterior boundaries of the Navajo Reservation . . . all satellite reservations . . . and the following lands located outside the boundaries of the formal Navajo Reservation within the Eastern Navajo Agency: all Navajo tribal trust lands, all Navajo allotments, and all tribal fee lands and federal lands previously determined to be part of ‘Indian country.’ ” Id. at 1232. This resulted in the application of TAS jurisdiction in areas where jurisdiction was in dispute.

The Tenth Circuit upheld EPA’s determination and concluded that “EPA’s decision, while made within the framework of administering the SDWA, implicates the core federal trust responsibilities of administering—and safeguarding—Indian lands” even though there was “no allegation before us of a breach of a specific statutory, treaty, or trust obligation.” Id. at 1246. Notably, to the court, the EPA was not taking a position about “Indian lands” or the status of such lands because “EPA does not have the power to change the Indian country status of land—that is a status conferred by Congress.” Id. at 1242. Instead, EPA was applying its authority under the SDWA. In other words, TAS is an independent source of tribal authority that applies in jurisdictional areas related to tribal lands, but potentially with boundaries that vary from reservation boundaries. See also Wyoming v. U.S. Env’t Prot. Agency, 875 F.3d 505 (10th Cir. 2017) (discussing an objection to a TAS application based on a dispute over the boundaries of the reservation). In other words, tribal air and water quality regulations may apply in jurisdictional boundaries that are distinct from reservation boundaries or other tribal boundaries because of tribal property rights. Practicing attorneys should check TAS designation independently from tribal boundaries to identify where tribal water quality standards apply.

The National Historic Preservation Act: An Unexpected Vehicle for Environmental Challenges

The National Historic Preservation Act (NHPA), 54 U.S.C.§§ 300101 et seq., may not traditionally be thought of as an environmental statute, but it has been used in environmental challenges to assert that the government failed to adequately engage in consultation with a Native American tribe. Section 106 of the NHPA requires that federal agencies take into account the effect of their undertakings on historic properties and aims to identify historic properties potentially affected by the undertaking, assess its effects, and seek ways to avoid, minimize, or mitigate adverse effects to historic properties. 36 C.F.R. § 800.1(a). In addition, Section 106 applies to projects that involve disturbing the earth or construction activity that have the potential to cause effects to historic properties and so they typically require consultation to assess potential effects on archeological and tribal resources.

In Sierra Club v. Dep’t of Transp., one of many cases regarding federal responsibility to consider the environmental impact on tribes, the Puyallup Tribe argued that the U.S. Department of Transportation failed to meaningfully engage in Section 106 consultation in developing a rule permitting bulk rail transport of liquified natural gas. Puyallup Tribe Reply Brief, Case Nos. 20-1317, 20-1318, 20-1413 & 21-1009, at 17 (D.C. Cir. Mar. 18, 2024). In addition to the NHPA, the Puyallup Tribe asserted that the consultation requirement is informed by historical dealings with tribes because “the consultation requirement [in NHPA] squarely implicates the ‘overriding duty of our Federal Government to deal fairly with Indians wherever located.’”See id. This shows a continuation of the arguments raised in HRI v. EPA, supra, and shows that tribes may continue to use the history of federal policy to inform present environmental regulations and obligations. The Sierra Club case is currently pending before the D.C. Circuit and has not been set for oral argument but will be a case to watch regarding how historic regulation of tribes informs the extent of consultation with Indian tribes that the law requires in the course of rule promulgation.

Environmental Justice: A New Era of Tribal Environmental Regulation?

More recently, the United States has adopted a new approach to environmental policy for Indian tribes: environmental justice. This approach is aimed at empowering and investing in tribes and Native American communities with the recognition that tribes are independent sovereigns. These policies are arguably a continuation of the Self-Determination Era of permitting Tribal Nations to act on their own behalf. As both federal and state environmental justice efforts strive to recognize the marginalization of Native American communities and acknowledge the land boundary and jurisdictional problems our past policy efforts have wrought upon Native Americans and Tribal Nations, these policies may be the start of a new era in federal Indian policy: the “Environmental Justice Era.”

In 2014, the EPA released its Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples. This policy sets forth 17 principles the EPA has been working on implementing through various methods, such as integrating Traditional Ecological Knowledge into its environmental science and decision-making.

In 2021, the Biden administration announced its Justice40 Initiative, which requires that covered programs or covered investments identify the benefits of the program and adopt a comprehensive approach to advancing equity. The ultimate goal is that 40% of investments in certain federal climate and clean energy programs flow to disadvantaged communities, including many tribes. See Memorandum from Shalanda D. Young et al., Exec. Off. of the President, M-21-28, Interim Implementation Guidance for the Justice40 Initiative (July 20, 2021). Then, in November 2023, the administration announced $2 billion in funding to support community-driven projects to drive clean energy development, strengthen climate resilience, and build capacity for communities to tackle environmental and climate justice. This Community Change Grant program is “the single largest investment in environmental justice going directly to communities.” Press Release, EPA, Biden-Harris Administration Announces $2 Billion to Fund Environmental and Climate Justice Community Change Grants as Part of Investing in America Agenda (Nov. 21, 2023). The EPA identified five target investment areas, including $150 million for projects benefiting Indian tribes in Alaska and $300 million for projects benefiting Native American communities in other states.

Many states have also adopted an environmental justice approach to tribal environmental regulations. In Minnesota, for example, the Minnesota Pollution Control Agency (MPCA) has adopted an Environmental Justice Framework with the goal of reducing or preventing disproportionate negative impacts from pollution. As part of the goal, the MPCA committed to “[e]nsureenvironmental justice issues are considered in [its] government-to-government interactions with Minnesota tribes.” MPCA, Environmental Justice Framework 10 (May 2022).

The Environmental Justice Era might become the first era of federal Indian policy that recognizes the complex history of the United States’ relationship with tribes and acknowledges that Indian tribes are independent sovereigns and that Native American communities have been historically disempowered. Attorneys practicing in this space should be on notice of the evolving nature of this new era and closely monitor its evolution.

The U.S. government’s continually shifting approach to tribal policy sets the stage for the dizzying patchwork of tribal jurisdictional boundaries today. This history continues to influence environmental litigation, statutory interpretation, and tribal policy. Environmental law practitioners working with Indian tribes and other Native American communities should be aware of this history when considering the application of tribal regulations and jurisdictions, when engaging in tribal consultation when required, and when working on new Environmental Justice initiatives with Tribal Nations and Native American communities.