Core Water Quality Standards for Indian Country Waters Without EPA

Core Water Quality Standards for Indian Country Waters
Without EPA-Approved Tribal Standards

Haudenosaunee Environmental Task Force Response

Should EPA proceed to put core WQS in place within Indian country waters that do not have EPA-approved Tribal standards?

For the Haudenosaunee, the answer is no. President Clinton’s Executive Order on Consultation with Indian Tribal Governments (Executive Order 13084 of May 14, 1998) references treaties in which the United States guaranteed the right of Indian tribes to self-government. Section 2 discusses policymaking criteria and states:

"In formulating policies significantly or uniquely affecting Indian tribal governments, agencies shall be guided, to the extent permitted by law, by principles of respect for Indian tribal self-government and sovereignty, for tribal treaty and other rights, and for responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments."

The Haudenosaunee have had a government-to-government relationship with the United States since there were thirteen colonies trying to form one union. In fact, in 1987 (S. CON. RES. 76), the United States Congress passed a concurrent resolution recognizing the contributions of the Iroquois Confederacy (the Haudenosaunee) to the development of the United States Constitution. EPA’s proposed promulgation of core water quality standards (despite its well-meaning intention) represents a paternalistic approach and is inconsistent with this Executive Order and the long-term government-to-government relationship between the Haudenosaunee and United States.

One of our first treaties with the Europeans who later became the Americans and Canadians was the Kaswentha or Two-Row Wampum Belt. The purpose of this treaty is that we are to travel the same river together in our own vessels, one a birch bark canoe for the Haudenosaunee, the other, a ship for the Europeans. As we travel this river together, we are to help each other from time to time, but we are not to try and steer the other’s vessel.

The Haudenosaunee Environmental Task Force has worked with EPA Region 2 to develop a relationship based on this treaty. We have high praise for the Region for its willingness to allow us to develop environmental programs based on our canoe’s perspective instead of trying to impose the ship’s perspective on us. Together, we are focusing on the river that we share in common. Should EPA proceed to try and put in place core WQS in Indian country waters, it will be the equivalent of the ship trying to steer the canoe and be inconsistent with the path the Haudenosaunee have embarked upon with EPA Region 2.

Are the WQS described in this paper appropriate as a first phase?

For the Haudenosaunee, the answer is no. The core WQS, absent traditional knowledge and law, will fail to protect the unique concerns and cultural needs of the Haudenosaunee, and therefore, further promote assimilation by replacing traditional law and knowledge with federal standards.

We have developed a collective knowledge of our lands, natural resources, and environment from interacting with it since time immemorial. This "Traditional Knowledge" is a living knowledge that is constantly changing and is transferred from one generation to the next. We strongly believe that development of water quality protection measures must be done consistent with our traditional knowledge systems and laws that we follow. This is the best way to ensure the continuation of our traditional practices and lifestyles which tie us to the natural world.

Over the past ten to fifteen years, the international community has begun to increasingly recognize the value of traditional knowledge as a tool in monitoring local environments, and in addressing today’s environmental problems. There is a growing appreciation and understanding that this knowledge system is a science.

In 1987, the Brundtland report "Our Common Future," a report of the United Nation’s World Commission on Environment and Development, was one of the first reports to identify the importance of traditional knowledge as a source of knowledge for the entire world to learn from and for the need to protect the ability of Indigenous People to maintain this knowledge:

"These communities are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins. Their disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecosystems."

In 1992, Agenda 21, which resulted from the United Nations Conference on Environment and Development (UNCED) was adopted by 174 governments in Rio de Janeiro. Agenda 21, Chapter 26 specifically references traditional knowledge:

"Indigenous people and their communities have an historical relationship with their lands and are generally descendants of the original inhabitants of such lands... They have developed over many generations a holistic traditional scientific knowledge of their lands, natural resources, and environment."

The Convention on Biological Diversity was also opened for signature at the Rio "Earth Summit" in 1992. Article 8(j) calls for each Contracting Party to, as far as possible and as appropriate:

"Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices."

As a signatory to these international agreements, the United States has an obligation to show the world how it is fulfilling its end of the agreements. Accepting traditional knowledge as being complementary to western science and working with the Haudenosaunee and other Indigenous Peoples in a cooperative manner provides an opportunity to demonstrate its commitment to meet this obligation.

Should EPA promulgate core WQS in Indian Country, it will be done from the ship’s perspective, on Anglo policies and laws which are very different from the cultural and spiritual based traditional laws and ecological knowledge of the Haudenosaunee and other Indigenous Peoples. Anglo environmental laws are driven, primarily by economic concerns, whereas, the Haudenosaunee are "traditionally" concerned with protecting the environment for future generations and maintaining a balance between people and nature.

We believe that the first phase should focus on increased resources (financial and technical) to codify "traditional" knowledge-based environmental protection processes in Indian Country. Our tenets, doctrines, and treaties already contain provisions that cover designated uses of water bodies, narrative water quality criteria, and anti-degradation policies. It is a matter of extracting this information and presenting it in a manner that can be understood by EPA.

What would be reasonable time frames for Nations to identify their preferences?

The Haudenosaunee Environmental Task Force has prepared a three-year plan to develop a culturally-based environmental protection process that will help the individual Nations to protect and restore the natural world, while preserving our unique relationship with it, as sustainable societies. We believe this is the best way to promote our sovereignty and is most consistent with our culture. It is the most appropriate approach to protect and preserve our unique cultural needs, traditional ways, and to live in harmony with the natural world. This plan is being submitted as a proposal to the Administration for Native Americans’ Environmental Regulatory Enhancement Project fiscal year 2000 funds in late February 2000.

It is envisioned that the first year of the project will involve research and analysis of the principles, tenets, doctrines and treaties of the Haudenosaunee that will serve as the foundation for the culturally-based environmental protection process. This will be combined with a review of existing federal environmental laws (including the CWA) and their implications in Indian Country. We recognize the importance of this step as the Haudenosaunee environmental protection process must meet or exceed the requirements of federal environmental law.

One way that a Haudenosaunee culturally-based environmental protection process could be more restrictive than the CWA can be seen by examining the goals and policy section of the CWA and comparing them with one based on the tenets, doctrines and treaties of the Haudenosaunee. Section 1251 of the CWA states that the congressional goals and policy are as follows:

"The object of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. It is the national goal that whenever attainable, an interim goal of water quality which provides for the protection of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved. The discharge of toxic pollutants in toxic amounts is prohibited."

While these CWA goals and policy are important, they fall short on protecting the unique and holistic Haudenosaunee water concerns. A Haudenosaunee culturally-based environmental process for water goals and policy might read as follows:

"The objective is to restore, maintain, and protect the chemical, physical, and biological integrity of the waters within Haudenosaunee territories to support traditional practices, cultural and spiritual purposes, for the use and propagation of the natural world, and to ensure the availability of water resources for future generations. It is the goal to achieve water quality that provides for protection of the sacred web of life. The discharge of toxic pollutants in toxic amounts is prohibited. Nothing in this section shall be construed as a relinquishment of any treaty rights or the sovereignty of the Haudenosaunee Nations."

The second year of the project would be the actual codification of the "traditional knowledge" process based on the research and results of the previous year. The third year would involve testing the ability of the process to address today’s environmental problems.

We believe that such an environmental protection process will meet and exceed the requirements of WQS because traditional uses of our territories require greater protection of the environment then state and federal WQS are designed for. They provide for a greater integration of environmental, cultural, and spiritual protection for the people, the natural world, and future generations to come.

What do you believe should be the next phases of the promulgation?

The Haudenosaunee Environmental Task Force believes that EPA should financially and technically support the development of culturally-based environmental processes by Indigenous Peoples. We believe our proposal has the potential to serve as a model for creating culturally-based environmental protection processes that will meet EPA requirements for WQS.

EPA needs, in cooperation with Indian Tribes, to clearly identify the status of environmental programs within Indian Tribes across the country. EPA has identified the 14 Tribes who have adopted water quality standards that EPA has approved as consistent with the CWA and EPA has promulgated federal standards for the Colville Reservation at the request of the Tribe. EPA has also indicated that it only expects an additional 8 to 10 Tribes to adopt WQS and submit them to EPA this year. EPA also indicates that some Tribes will not adopt WQS in the foreseeable future.

EPA needs to qualify and quantify this problem with a lack of WQS in the rest of Indian Country. What is the actual status of the remaining Tribes that EPA feels it is necessary to promulgate core WQS across Indian Country? How much economic development activity is taking place in Indian Country that requires NPDES permits? How many Tribes have actual water quality problems originating from within their territories that would benefit from WQS.

It has been our experience, that WQS do not always equate to greater protection of water quality. We have witnessed first-hand the lack of enforcement of existing State Pollutant Discharge Elimination System (SPDES) permits by the New York State Department of Environmental Conservation to state lands that impact on Haudenosaunee territories. If these permits had been properly enforced, many of the environmental problems facing our communities would not exist today. How many other Indian Tribes have similar problems?

EPA clearly identifies the types of benefits core standards would provide. However, it is not clear how many tribes fit into each category of problems and benefits. We question whether the ends (the imposition of EPA promulgated core WQS) justify the means (the infringement on self-determination that is paternalistic and does not take into consideration traditional knowledge and law) to get there?

Are the provisions to "opt out" of the core WQS appropriate?

For the Haudenosaunee, the answer is no. EPA’s promulgation process is not in the spirit of a government-to-government relationship, but is rather a paternalistic approach that places the burden on Indian Tribes to tell the "great white father" no. An analogy would be like the telephone companies and a long-distance carrier slamming you. They would come in and switch you to their company. Then you must call them up and tell them no. By law, this is not allowed. Instead, you must request to be switched.

The same thinking should apply to the WQS. The Haudenosaunee have been in existence since time immemorial. We have not survived all of this time by chance. Our principles, tenets, doctrines and treaties guide us in our decision-making. It can be argued that the greatest bio-diversity in the United States exists in Indian Country. I know it is true for the territories of the Haudenosaunee. It is disrespectful for the EPA to tell the Haudenosaunee that the only way we won’t do this is for you to ask us not to.

The second approach EPA considered, the "opt-in" is more respectful to the Haudenosaunee and other Indigenous Peoples. While EPA has expressed concern about whether the Agency could implement this approach consistent with CWA authorities, it doesn’t say it can’t. Furthermore, in the case of the Colville Reservation, it has demonstrated it can when requested by a Tribe. This approach is more consistent with Executive Order 13084 and the government-to-government relationship between the EPA and the Haudenosaunee.

How would the Nations be involved if EPA moves ahead with federal core WQS in Indian Country?

If the EPA approach is the "opt-out" approach, the Haudenosaunee will view this as an intrusion on our sovereignty and will not participate. The Haudenosaunee retain complete jurisdiction within our territories and will continue to exercise it.

This is not to say that the Haudenosaunee are not interested in protection of water quality. The Creator has instructed us to respect all life and to live in peace and harmony with the natural world. We continue to maintain this viewpoint despite intrusions on our territories from pollution originating from the larger non-Indigenous Society.

We will continue to work with EPA Region 2 consistent with the Two-Row Wampum Belt. We remain committed to codifying our existing environmental protection processes such that EPA can understand them and assist us in fulfilling our responsibilities as given to us by the Creator.

What are the implications of this approach for the Nations’ interests (e.g., fiscal and staff resources)?

If the EPA goes ahead with the "opt-out" approach, there will be no implications for the Haudenosaunee. We will not participate as this approach is inconsistent with the Kaswentha-based approach we are taking with EPA Region 2 to develop culturally-based environmental protection processes.

However, if the EPA is interested in working with the Haudenosaunee Environmental Task Force, we project it will cost $289,000 for the first year of our three-year plan to develop culturally-based environmental protection processes. This includes an in-kind contribution of $65,000 in personnel resources that we are prepared to contribute to this effort.

This effort will require three full-time positions and a one-quarter position for the first year. The second and third years would require a similar amount.

This project will directly benefit all of the Nations of the Haudenosaunee Confederacy, including four that are federally recognized. It can also serve as a model nationally for other Nations interested in developing culturally-based environmental protection measures.