Nez Perce Involvement with Solving Environmental Problems: History, Perspectives, Treaty Rights, and Obligations

Abstract

The Nez Perce, like other federally recognized Tribes, is a sovereign Nation, and the United States is required to consult on a government-to-government basis with the Tribe on action that stand to effect the Tribal resources, such as the cleanup of nuclear wastes at the Hanford Facility near Richland, WA. This chapter examined the Nez Perce perspective on treaty rights and the U.S. government’s obligations, using the case study of the handling of Greater-than-Class C (GTTC) Low-Level Radioactive Waste, with an emphasis on the Department of Energy’s Hanford Site. It also provides an overview of how the Nez Perce view the environmental features and values that effect their lifeways, including seasonal rounds, gathering times, Tribal values, and Tribal perspectives. While the chapter focuses on Hanford, the history, perspectives, treaty rights, and obligations are common to other Tribes and other environmental situations.

Appendix: Legal Framework

7.1.1 Treaty Rights and Obligations

The Nez Perce Tribe is a sovereign government whose territory comprises over 13 million acres of what are today’s northeast Oregon, southeast Washington, and north-central Idaho. In 1855, the Nez Perce Tribe entered into a treaty with the United States, securing, among other guarantees a permanent homeland, as well as fishing, hunting, gathering, and pasturing rights (Treaty with the Nez Perces, June 11, 1855; 12 Stat. 957).

Since 1855, many federal and state actions have recognized and reaffirmed the Tribe’s treaty reserved rights. Since these rights are of enormous importance to the Tribe’s subsistence and cultural fabric, the ecosystems that support fish and wildlife must remain undamaged and productive. DOE recognizes the existence of reserved treaty rights and has shown a commitment to identifying and assessing impacts of all DOE activities to both on and off-reservation lands.

The Nez Perce Tribe has the responsibility to protect the health, welfare, and safety of its members, and the environment and cultural resources of the Tribe. Therefore, activities related to the Hanford operations and cleanup should avoid endangering the Tribe’s environment and culture, or impairing their ability to protect the health and welfare of Tribal members.

7.1.1.1 The Nez Perce Tribe Treaty of 1855

The Nez Perce Tribe Treaty of 1855 promulgated articles of agreement between the United States and the Tribe. The Treaty is superior to any conflicting state laws or state constitutional provisions under the Supremacy Clause of the U.S. Constitution (Art. VI. cl. 2).

Under the Treaty of 1855, the Tribe ceded certain areas of its aboriginal lands to the United States and reserved for its exclusive use and occupation certain lands, rights, and privileges; and the United States assumed fiduciary responsibilities to the Tribe.

Rights reserved under the Treaty of 1855 include those found in Article 3 of the Treaty, “The exclusive right of taking fish in all the streams where 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.”

The reserved rights to the aforementioned areas are a fundamental concern to the Nez Perce Tribe. The fish, roots, wild game, religious sites, and ancestral burial and living sites remain integral to the Nez Perce culture. The Tribe expects, accordingly, to be the primary consulting party in all federal actions related to Hanford that stand to affect or implicate the Tribe’s treaty reserved or cultural interests.

7.1.2 Treaty Reserved Resources

Treaty reserved resources situated on and off the Reservation (hereafter referred to as “Tribal Resources”) includes but are not limited to:

• Tribal water resources located within the Columbia, Snake, and Clearwater River Basins including those water resources associated with the Tribe’s usual and accustomed fishing areas and Tribal springs and fountains described in Article 8 of the Nez Perce Tribe Treaty of 1863.

• Fishery resources situated within the Reservation, as well as those resources associated with the Tribe’s usual and accustomed fishing areas in the Columbia, Snake, and Clearwater River Basins.

• Areas used for the gathering of roots and berries, hunting, and other cultural activities within open and unclaimed lands including lands along the Columbia, Clearwater, and Snake River Basins.

• Open and unclaimed lands which are or may be suitable for grazing.

• Forest resources situated on the Reservation and within the ceded areas of the Tribe.

• Land holdings held in trust or otherwise located on and off the Nez Perce Reservation in the States of Idaho, Oregon, and Washington.

• Culturally sensitive areas, including, but not limited to, areas of archaeological, religious, and historic significance, located both on and off the Reservation.

7.1.3 Federal Recognition of Tribal Sovereignty

A unique political relationship exists between the United States and Indian Tribes, as defined by treaties, the United States Constitution, statutes, federal policies, executive orders, court decisions, which recognize Tribes as separate sovereign governments.

As a fiduciary, the United States and all its agencies owe a trust duty to the Nez Perce Tribe and other federally recognized Tribes. See United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707 (1987); United States v. Mitchell, 463 U.S. 206, 225 (1983); Seminole Nation v. United States, 316 U.S. 286, 296–97 (1942). This trust relationship has been described as “one of the primary cornerstones of Indian law,” Felix Cohen, Handbook of Federal Indian Law 221 (1982), and has been compared to one existing under the common law of trusts, with the United States as trustee, the Tribes as beneficiaries, and the property and natural resources managed by the United States as the trust corpus. See, e.g., Mitchell, 463 U.S. at 225.

The United States’ trust obligation includes a substantive duty to consult with a Tribe in decision-making to avoid adverse impacts on treaty resources and a duty to protect Tribal treaty reserved rights “and the resources on which those rights depend.” Klamath Tribes v. U.S., 24 Ind. Law Rep. 3017, 3020 (D.Or. 1996). The duty ensures that the United States conduct meaningful consultation “in advance with the ­decision maker or with intermediaries with clear authority to present Tribal views to the … decision maker.” Lower Brule Sioux Tribe v. Deer, 911 F. Supp 395, 401 (D. S.D. 1995).

Consistent with the United States’ trust obligation to Tribes, Congress has enacted numerous laws to protect Tribal resources and cultural interests, including, but not limited to the National Historic Preservation Act (NHPA) of 1966; the Archaeological Resources Protection Act of 1979; the Native American Graves Protection and Repatriation Act (NAPRA) of 1990; and the American Indian Religious Freedom Act (AIRFA) of 1978.

7.1.4 Executive Orders

Executive order, 13007, May 24, 1996. Updated April 30, 2002.

Section 1. Accommodation of Sacred Sites. (a) In managing Federal lands, each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall – to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions – (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.

This Executive Order directs Federal land-managing agencies to accommodate Native Americans’ use of sacred sites for religious purposes and to avoid adversely affecting the physical integrity of sacred sites. {267} Some sacred sites may be considered traditional cultural properties and, if older than 50 years, may be eligible for the National Register of Historic Places. Thus, compliance with the Executive Order may overlap with Section 106 and Section 110 of NHPA. Under the Executive Order, Federal agencies managing lands must implement procedures to carry out the directive’s intent. Procedures must provide for reasonable notice where an ­agency’s action may restrict ceremonial use of a sacred site or adversely affect its physical integrity. {268} Federal agencies with land-managing responsibilities must provide the President with a report on implementation of Executive Order No. 13007 1 year from its issuance.

Executive Order No. 13007 builds upon a 1994 Presidential Memorandum ­concerning government-to-government relations with Native American Tribal ­governments. The Memorandum outlined principles Federal agencies must follow in interacting with federally recognized Native American Tribes in deference to Native Americans’ rights to self-governance. {269} Specifically, Federal agencies are directed to consult with Tribal governments prior to taking actions that affect federally recognized Tribes and to ensure that Native American concerns receive consideration during the development of Federal projects and programs. The 1994 Memorandum amplified provisions in the 1992 amendments to NHPA enhancing the rights of Native Americans with regard to historic properties.

7.1.4.1 Executive Order 11593

Section 1. Policy. The Federal Government shall provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the Nation. Agencies of the executive branch of the Government (hereinafter referred to as “Federal agencies”) shall: (1) administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations, (2) initiate measures necessary to direct their policies, plans, and programs in such a way that federally owned sites, structures, and objects of historical, architectural or archaeological significance are preserved, restored, and maintained for the inspiration and benefit of the people, and (3), in consultation with the Advisory Council on Historic Preservation (16 U.S.C. 4701), institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of nonfederally owned sites, structures, and objects of historical, architectural, or archaeological significance.

The Executive Order requires Federal agencies to administer cultural properties under their control and direct their policies, plans, and programs in such a way that federally owned sites, structures, and objects of historical, architectural, or archeological significance were preserved, restored, and maintained. {250} To achieve this goal, Federal agencies are required to locate, inventory, and nominate to the National Register of Historic Places all properties under their jurisdiction or control that appear to qualify for listing in the National Register. {251} The courts have held that Executive Order No. 11593 obligates agencies to conduct adequate surveys to locate “any” and “all” sites of historic value, {252} although this requirement applies only to federally owned or federally controlled properties. {253} Moreover, the Executive Order directs agencies to reconsider any plans to transfer, sell, demolish, or substantially alter any property determined to be eligible for the National Register and to afford the Council an opportunity to comment on any such proposal. {254} Again, the requirement applies only to properties within Federal control or ownership. {255} Finally, the Executive Order requires agencies to record any listed property that may be substantially altered or demolished as a result of Federal action or assistance and to take necessary measures to provide for maintenance of and future planning for historic properties {256}.

7.1.4.2 Executive Order 13175, November 6, 2000

Executive Order 13175 establishes regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, to strengthen the United States government-to-government relationships with Indian Tribes, and to reduce the imposition of unfunded ­mandates upon Indian Tribes. The executive Order applies to all federal programs, projects, regulations, and policies that have Tribal Implications.

E.O. further provides that each “agency shall have an accountable process to ensure meaningful and timely input by Tribal officials in the development of regulatory ­policies that have Tribal implications.” According to the President’s April 29, 1994 memorandum regarding government-to-government relations with Native American Tribal Governments, federal agencies “shall assess the impacts of Federal Government plans, projects, programs, and activities on Tribal trust resources and assure that Tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities.” As a result, Federal agencies must proactively ­protect Tribal interest, including those associated with Tribal culture, religion, subsistence, and commerce. Meaningful consultation with the Nez Perce Tribe is a vital component of this process.

On November 5, 2009 President Obama issued a Presidential Memorandum for the Heads of Executive Departments and Agencies. That Memorandum affirms the United States’ government-to-government relationship with Tribes, and directs each agency to submit to the Office of Management and Budget (OMB), within 90 days and ­following consultation with Tribal governments, “a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175.”

7.1.4.3 U.S. Department of Energy American Indian Policy

On November 29, 1991, DOE announced a seven-point American Indian Policy, which formalizes the government-to-government relationship between DOE and federally recognized Indian Tribes. A key policy element pledges prior consultation with Tribes where their interests or reserved treaty rights might be affected by DOE activities. The DOE American Indian Policy provides another basis for the Cooperative Agreement. The Cooperative Agreement will also serve as an Office of Environmental Management Implementation Plan for the DOE American Indian Policy regarding interactions with the Nez Perce Tribe.

7.1.5 The Roles of the Nez Perce Tribe at Hanford

The Tribe has a duty to protect its reserved treaty rights and privileges, environment, culture, and welfare as well as to educate its members and neighboring public to its activities. The Tribe assumes many different roles. It is a governmental entity with powers and authorities derived from its inherent sovereignty, from its status as the owner of land, and from legislative delegations from the Federal government. The Tribe exercises its powers and authority to serve its members and to regulate ­activities occurring within the reservation. The Tribe is also a cultural entity and is accordingly charged with the responsibility of protecting and transmitting that ­culture which is uniquely Nez Perce. The Tribe is also a beneficiary within the ­context of federal trust relationship with, and obligations to Indian Tribes. The Tribe is a trustee responsible for the protection and betterment of its members and the protection of its and their rights and privileges. The Tribe is also party to treaties between itself and the United States government.

7.1.5.1 Nez Perce and DOE Relationship

The relationship between the Tribe and DOE is defined by the trust relationship that exists between the Federal government and the Tribe, by treaty, federal statute, executive orders, administrative rules, caselaw, DOE’s American Indian Policy, and by the mutual and generally convergent interests of the parties in the efficient and expeditious cleanup of the DOE weapons complex, and by the Cooperative Agreement. The structured relationship embodied by the Cooperative Agreement can best be described as a partnership grounded in the site-specific cleanup of Hanford, and extends to all trust-related activities of the Department.

The Tribe sees itself not only as an advisor to DOE, but also as a technical resource available to assist DOE. The Tribe sees its members and employees as a source of technically trained and certified labor for environmental restoration and decontamination and decommissioning work. The continuation of the Cooperative Agreement contemplates an approach that will integrate these and other roles into a comprehensive Nez Perce-DOE program.

The Tribe is asked to review and comment on documents and activities by DOE implicates our Treaty reserved rights and DOE’s acknowledgement of other federal statutes, laws, regulations, executive orders, and memoranda governing the United States’ relationship with Native Americans and the Nez Perce people. Several Tribal departments lend their respective technical expertise to DOE Hanford issues and present recommendations to the NPTEC, for consideration and guidance. The NPTEC also may requests formal consultation with the federal agency to discuss a proposal or issue further.

7.1.5.2 Consultation with Native Americans

DOE’s consultation responsibilities to the Tribe are enumerated generally in the document entitled, Consultation with Native Americans. This policy defines consultation in relevant part:

“Consultation includes, but is not limited to: prior to taking any action with potential impacts upon American Indian and Alaska Native nations, providing for mutually agreed protocols for timely communication, coordination, cooperation, and collaboration to determine the impact on traditional and cultural lifeways, natural resources, treaty and other federally reserved rights involving appropriate Tribal officials and representatives through the decision making process.”

In regard to security clearance, none of the various provisions of the continuation of the Cooperative Agreement shall be construed as providing for the release of reports or other classified information designated as “classified” or “Unclassified Controlled Nuclear Information” to the Nez Perce Tribe, or as waiving any other security requirements. Classified information includes National Security Information (10 CFR Part 1045) and Restricted Data (10 CFR Part 1016). Unclassified Controlled Nuclear Information is described in 10 CFR Ch. X, Part 1017.

In the event that reports or information requested under the provisions of the continuation of the Cooperative Agreement, while not “classified” or “Unclassified Controlled Nuclear Information,” are determined by DOE-RL to be subject to the provisions of the Privacy Act, or the exemptions provided under the Freedom of Information Act, DOE-RL may, to the extent authorized by law, provide such reports or information to the Tribes upon receipt of the Tribe’s written assurance that the Nez Perce Tribe will maintain the confidentiality of such data.