EPA and TAS – Treatment
as States
By Elaine Willman, Executive Director Citizens
Standup! Committee
A policy known as Treatment As States (TAS) must be given serious EPA agency review. Each of us must take the time to write our elected officials and EPA Assistant Administrators. Issues that we must bring to their attention, include:
The definition of "Indian Country" varies in Federal statutes, and within recent U.S. Supreme Court rulings. An inconsistent Federal definition of "Indian Country" promulgates unnecessary delays in projects, and costly litigation across the country. EPA defines Indian Country as ALL lands within the exterior boundaries of a federally recognized reservation. Yet, where reservations have been formally disestablished by Congress (i.e. Mille Lacs Reservation), EPA arbitrarily "constructs" a reservation for purpose of a Garrison- Kathio-Mille Lacs Wastewater Treatment Plant. Another example: U.S. Attorney James Shively recently ruled that the municipalities located on the Yakama Reservation, are not Indian Country," based upon a predominant (90%) non- Indian population and existence of some 9,728 fee-simple non-Indian owned) parcels. On "checker-boarded" reservations with majority fee-simple parcels, and reservations that are predominantly non-Indian populations as documented by the U.S. Census, the EPA policy of TAS poses serious concerns to state, county and municipal entities located within or near reservation boundaries. Major concerns include:
A. A loss of the Constitutionally guaranteed right to representative government, and the right to recourse (appeal). Non-Indian citizens subject to Tribal control of air, energy and water experience a direct loss of representative government and right of recourse; including a Federally constructed taking of such basic public health resources as air, energy and water;
B. A profound change in the legal character of a PUBLIC resource such as air or water, into a non-public (tribal government) property.
C. Justice Scalia wrote in U.S. Supreme Court, Nevada v. Hicks, decided on June 25, 2001, states: "…the Indians right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation border…an Indian reservation is considered part of the territory of the State."
A review and revision of the Federal definition of "Indian Country" should result in a definition that is consistent with Tribal self-government and self-determination, but that does NOT infringe upon or remove non- Indian rights to representative government, and right of recourse for non-tribal citizens residing within actual Indian reservation boundaries. State and local government authority over public resources and non-Indian citizens on reservations is the only guarantee for preservation of Constitutional and States rights.
This section states: "Sound environmental planning and management require the cooperation and mutual consideration of neighboring governments, whether those governments be neighboring States, Tribes, or local units of government. Accordingly, EPA will encourage early communication and cooperation among Tribes, States and local governments. This is not intended to lend Federal support to any one party to the jeopardy of the interests of the other. Rather, it recognizes that in the field of environmental regulation, problems are often shared and the principle of comity between equals and neighbors often serves the best interests of both."
Section 6 of the 1984 EPA Indian policy is NOT actually practiced in EPA planning, management, permitting and other decision-making processes. EPA staff consistently ignore this critical section of their 1984 EPA Indian Policy completely skewing a process that now "lends Federal support to one party." There is almost zero consideration of state and local units of government interest and responsibility to non- Indian citizens within an area being considered for TAS. EPA's "special trust relationship" with Federally recognized Tribal governments is being perceived across the country as "no relationship whatsoever" with other citizens and units of government.
The EPA is required to follow Congressional legislation and judicial directives but systematically ignores rulings of the U.S. Supreme Court. Cases with origins generally proceeding from the Montana cases, have narrowed tribal governance or jurisdiction over non-Indian persons and lands. Just a few recent cases EPA ignored are:
Brendale,
1989: Tribal government may
not zone non-Indian fee simple parcels
Cass, 1998: States may impose ad valorem tax upon alienable lands repurchased by
Tribes.
SD v. Yankton, 1998: Congress
intended to diminish the Yankton Reservation
Klamath Water 2001: Tribal
documents are not exempt from FOIA.
Atkinson, 2001: Tribal
government may not tax non-Indian entities on fee simple land
Palazzolo, 2001: The Takings
Clause of the Fifth Amendment, applicable to States through the 14th Amendment
prohibits the government from taking private property for public use without
just compensation.
Nev. v. Hicks, 2001: State
authority does not end at a reservation border.
We are a legitimately endangered homeland in need of strengthening domestic food and energy resources, and economic stimulus. We are the United States of America and Americans. We are not Native-Americans, Hispanic-Americans, Chinese-Americans, Muslim-Americans; nor can we afford to continue fostering this hyphenated-American divisiveness. We can ill afford to parcel out critical resources of air, energy and water to tribal governments that balkanize and negatively impact or outright destroy a region's ability to strengthen domestic food and energy supply.
In the greatest possible leap of our society's imagination, we are not "567 Nations Under God." We are "One Nation Under God" including 566 Federally recognized tribes, whose members are first and last, citizens of the United States. Our country is in need of greatest possible unity at the current time, and Federal Policy must reinforce this principle, perhaps now, as never before.
According to the TAS Matrix posted on the American Indian Environmental Office (AIEO) internet site, there are currently over 144 Tribes pursuing multiple requests for Treatment As States within the 50 United States. This program has profound impact on air, energy and water regulation within State territories, considering some 566 Tribes may also proceed with requests. Decisions by the EPA regarding TAS have direct and often debilitating effects upon our Nation's ability to produce food and energy. This must stop.
It is time to unite and demand fair and balanced EPA policy that embraces the needs of citizens of every ethnicity within every State, without diminishing the rights of such State or the civil and property rights of any citizen. Today the EPA is an autonomous governing nightmare unto itself. It's our own fault if we let this monster keep swallowing up our States and individual properties and rights.