Haudenosaunee Environmental News Report

This month's report contains 2 articles. The first article is a comment on a recent law review article by Katyhleen A. Kannler. Her article concerns establishing water quality standards. In the article, she raises an additional concern for "tribes," which is not found in the Clean Water Act. Most interesting is her struggle to understand why the federal government's delegation of authority to sovereign nations. The second article, "Looking to Nature to Measure Air Pollution" is about how a father and son team of researchers are using lichen to measure for air pollutants. 

TABLE OF CONTENTS 

1. Comment: Kathleen A. Kannler, The Struggle Among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards For Waters Located on Reservations, 15 GEO INT. L. REV. 55 (2002).

2. Looking to Nature to Measure Air Pollution

1.) Comment by Barbara Gray

Katyhleen A. Kannler, The Struggle Among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards For Waters Located on Reservations, 15 GEO INT. L. REV. 55 (2002).

Although this article is recent, it should be noted that much has happened prior to its publication concerning tribal water quality standards. For example, the proposed rule to establish federal water quality standards for Indian Country has been stalled by the Office of Management and Budget (OMB). The OMB sent the proposal back to EPA for further analysis because financial impacts to the states were not adequately addressed. 

However, the article raises some interesting questions and offers its readers some valuable insights. Kannler begins by asking a simple question, one that seems so simple, yet the presumption is often not challenged. She questions why the federal government is delegating authority to Indian nations that possess inherent sovereignty to set their own water quality standards and regulate the conduct of their citizens.1 Kannler writes, "Tribes have retained their sovereign status, which they have possessed from time immemorial, they can develop their own water quality programs; therefore, it is unclear why the federal government feels it has the power to grant tribes treatment as state (TAS) status."2 In other words, Indian nations already have this power-it need not be delegated to them through federal statute. 

After a lengthy discussion on tribal sovereignty, the author concludes that the statute is a federal acknowledgment of inherent sovereignty3 rather than a grant of tribal authority. Kannler writes: 

The CWA, therefore, is a federal statute that acknowledges the inherent authority to regulate their waters, recognizes the water quality standards set by tribes, and implicitly requires that the states also recognize and abide by the tribal standards. Since the CWA acknowledges that the tribes have the authority to regulate the waters on the reservation to the extent that the tribe retained inherent authority over those waters, the tribes preserve their sovereign status. Therefore, instead of conferring tribal authority, federal statutes merely clarify that tribes have inherent authority due to their sovereignty. 

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Footnotes:

1 As well written as the article is the author still refers to Indian nations as tribes, and refers to our citizens as members. I will try and use culturally sensitive wording throughout this comment, but please be aware that when I am directly speaking of the statute or quoting the author, I will use tribe and members.

2 Congress, as part of the 1987 Amendments, included Section 1377. This provision grants Indian nations that meet certain criteria treatment as a state (TAS) status; thus like states they may set their own water quality standards. 

3 Inherent sovereignty is defined as the source of authority being derived from the Indian nation not from an outside source.
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Viewing the federal statute as an, acknowledgement of inherent sovereignty, rather than as a grant of authority is, in the mainstream, a novel and important development in western legal thought. Although law review articles are considered to be secondary sources in the hierarchy of precedence, the seeds are planted within mainstream western legal thought to extend the argument.

However seemingly uncomfortable with her own revelation, she turns back into the safety of the cannons of Federal Indian law. Kannler asserts that the federal government included tribal TAS status within the Clean Water Act (CWA) because it is obligated to do so under the trust doctrine. In other words, the federal government is mandated by fiduciary obligations to protect the beneficiaries of their trust. 

The roots of the trust doctrine, relating to Federal Indian law, have its judicial birth in the Marshall Trilogy.4  In the trilogy, Marshall on one hand acknowledges inherent sovereignty, while on the other hand describes the relationship between Indian nations and the United States "as resembling that of a ward to guardian."5 The ward guardianship language has led to an unilateral judicial reassignment of Indian status and rights. One can see this in how criminal and civil jurisdiction has been redefined over the years. 

The federal government does have obligations to Indian nations. However, there is more power in arguing that the obligation comes from treaty rights, rather than from the Trust Doctrine. 

Kennler's TAS requirements

Kenner grabbed my attention when she stated that a tribe must meet four requirements for TAS status because the federal statute requires three. The three federal requirements are as follows:

    (1)     The Indian tribe has a governing body carrying out substantial governmental    duties and powers;

    (2)     The functions to be exercised by the Indian tribe pertain to the management  and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians; held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and

    (3) The Indian tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and of all applicable regulations. 

Kennler adds as her fourth requirement that tribes must prove they have sovereign powers over non-Indians living on the reservation. In general, Indian nations, according to Federal Indian Law, do not have jurisdiction over non-members within their territory. However, there are exceptions to the rule. 

In Montana v U.S., the court held that tribes may regulate non-member activity that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."6   Kennler does not flush this thought out other then to say a tribe must show they have jurisdiction over non-members. However, the regulation of pollutants at any rate should be viewed as having a direct impact on the health and welfare and would easily be covered by the Montana exception. I think her concern here is a non-issue, but it is always good to keep the argument in mind. 

Developing Water Quality Standards

Kennler's article concludes that Indian nations have the inherent right to create their own water quality standards. She goes on to say that because of the lack of funding, Indian nations should create WQS under the Clean Water Act and the Trust relationship with the United States. The need for funding is an issue, and more assistance to Indian nations for creating water quality standards would be beneficial. 
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6. Montana v United States, 450 U. S. 544, 564-67 (1980). 
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However, I am leery in advocating the trust responsibility. The trust relationship, although there are beneficial legal aspects, is based not on equality, but it is based on a hierarchal relationship. In essence the relationship is one of paternalism with the Canoe being viewed as a child to the father Ship. 

Therefore, I would rather assert that there are treaty obligations that bind the United States and the Indian nations to work together, as equals, as brother and sisters, to find solutions to environmental problems that the Ship and Canoe share. 

In keeping with the teachings of the Two Row Wampum, the willingness to work together with our brothers and sisters to protect the environment, we should not only meet the CWA standards, but we should exceed them to protect our culturally significant uses. There is great power in using one's own cultural traditions to create Water Quality Standards that reflect the traditional teachings and protects culturally significant flora and fauna, uses, and practices that would not be afforded the same protection under the Clean Water Act. 

Conclusion 

Overall, I really enjoyed reading Kennler's article. The article was well researched, written, and documented. Kennler was really gaining good momentum with her argument, but she back-slides a little. I think her abrupt stop happens when she comes upon the oft conflicting cannons of Federal Indian law, which developed over numerous policy shifts between Indian and white relations. She inspired critical thought and further discussion on the subject, which is always a good thing. 

2.)  

Looking to Nature to Measure Air Pollution

by Barbara Gray

As Haudenosaunee, we know that each being, no matter how small, has duties and responsibilities for maintaining balance of the Natural World. We also know that all the Natural World, including humans, is interconnected and dependent on each other for survival. 

Today, researchers are beginning to understand the importance of looking to indicator species for answers on how pollutants are impacting them and species that depend on them for survival. In addition, they are looking at what I shall call "Nature's Technology" for alternative ways to monitor pollutants rather than using costly standard mechanical devices.

For example, researchers are looking to lichens, a combination of fungi and algae because they take in things from the air to monitor pollutants. The lichen tissue functions much like a natural filter, in that it accumulates airborne pollutants as they are deposited on the lichen surface. 

Unfortunately, the Great Web of Life is impacted in numerous ways by contaminated lichen, which accumulates in the food chain. Birds and small mammals absorb toxins as they use the material to build nests or eat contaminated lichen. Humans may absorb toxins as they use lichens to make traditional dyes, paints, and medicine infusions by breathing in the smoke from contaminated logs, or by eating small game, deer, or caribou who have consumed contaminated lichens. (See, Richardson and Young, 1977)

Prior to the research of Larry St Clair, Professor of Integrative Biology at the Brigham Young, and his son Sam, who is currently pursuing a PhD at Pennsylvania State University; it had not been scientifically documented as to whether what is in the lichen accurately reflects what is in the air. The team began its research looking at one specific pollutant copper, because the area of research was a common copper smelting area. They used two basic forms of lichen in their study, foliose and fruticose growths. However, they believe other lichen would have similar results. The data was collected for a four year period and was compared to data collected during the same period by scientists from the University of California using mechanical measurements. The team gathered significant data showing that the lichens accurately reflected the copper amounts in the ambient air. 

The team's next study will be to study lichens for 15 to 20 common pollutants. This will further test their hypothesis that lichens accurately reflect the ambient air. The potential use of nature's technology using lichens as biomonitors and replacing the need for mechanical devices makes their work very exciting. 

Uncontaminated lichens can be introduced to an area and used to monitor for air pollutants. This will be helpful to Native nations who might not have the funding for costly mechanical devices that may not reflect the ambient air as well as nature's own technological marvel, lichen.
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To read more see:

Brigham Young University: Media Press Release: http://www.byu.edu/
Lichen: An Identification and Use Resource: http://www.lichen.com/

Richardson, D.H.S and C.M. Young. 1977. Lichens and vertebrates. 
Pages 121-144 in Lichen Ecology, M. R. D. Seaward, ed. Academic
Press, London.

Viereck, L.A. Radioactivity Report. 1964. Vol. IV, Annual
Project Segment Report, Fed. Aid in Wildlife Report, Project W-6-R-
4, Work Plan L. Alaska Dept. of Fish and Game, Juneau, AK.