Tribal Case Study:Data and Tribal Sovereignty

Nate Herbst

Southern Ute Indian Tribe

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Introduction

• Monitoring provides data that allowstribe to make important decisions

• Data – Can protect tribal development rights – Help protect health of tribal members– Help tribe make knowledgeable environmental

decisions

• All aspects of tribal sovereignty

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History of Tribal Sovereignty• 1934 “Indian Reorganization Act”, part of

Franklin D. Roosevelt’s “New Deal” • Tribes have “inherent powers of a limited

sovereignty which has never been extinguished”

• Act provided foundation for tribal sovereignty, though few legal rights granted

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• 1973 In McClanahan vs. Arizona, Supreme Court ruled against income tax on individual Native Americans living on reservations--tribal sovereignty issue

• 1997 In Idaho vs. Couer d’Alene Tribe, Supreme Court: “Indian Tribes…should be accorded the same status as foreign sovereigns, against whom states enjoy 11th amendment immunity.”

History of Tribal Sovereignty (cont.)

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Recent Tribal Sovereignty Cases

• United States vs. White Mountain Apache Tribe: Tribe sued because of un-kept property

• United States vs. Navajo Nation: Tribe sued govt. for monetary compensation ($600M) for unpaid mineral leasing monies

• Inyo County vs. Paiute-Shoshone Indians: Tribe claimed law enforcement searches on tribal property without tribal consent are illegal

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Tribal Sovereignty and the EPA

• 1984 EPA Administrator William Ruckelshaus signed EPA Policy for the Administration of Environmental Programs on Indian Reservations

• Recognized tribal sovereignty in environmental areas

• Policy reaffirmed by EPA Administrator Christine Whitman in 2001

• In January 2001, OECA issued Final Guidance on the Enforcement Principals Outlined in the 1984 Indian Policy

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• U.S government officially recognizes tribal sovereignty

• Tribes have many rights that states have

• Rights cover environmental monitoring and compliance issues

• Data necessary to support environmental decisions/ tribal sovereignty

Tribal Sovereignty Issues

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• Steady growth in population, natural resource development

• Increased public awareness of environmental issues

• Many live here because they love outdoors, pristine environment

• Residents do not want further deterioration of environmental quality

Four Corners Environmental History

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Ozone in the Four Corners

• Southern Ute Air Quality Program (SUAQP) began in 1981

• One of the first tribal air programs• Local ozone levels always “reasonable”• Few new air quality programs in area

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Regional Ozone Data

• SUAQP data show recent decresed ozone levels

• Bloomfield and Mesa Verde data show ozone increase

• Ozone formation complex• Southern Ute Reservation in a geographically,

topographically and meteorologically unique area

• Reservation has different types of sources

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Development on Reservation

• Southern Ute Tribe – Developing its natural resources– Environmentally conscientious

• Tribes has drawn criticism from different “fringe” groups

• These groups often cite Bloomfield’s increased ozone levels as basis for their concerns

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Development in San Juan County

• Bloomfield may surpass ozone 8-hr NAAQS • San Juan County entering agreement with

EPA• Agreement

– Designed to protect San Juan County in case of “nonattainment”

– Will limit economic development in county– Will protect San Juan air quality

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The “Situation”

• Local activist groups believe same reduction strategy good for La Plata County

• Such an agreement would decrease tribal economic growth

• If reservation ozone levels elevated, similar agreement might be good

• Local activists haven’t used any data

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Southern Ute Tribal Sovereignty

• EPA limitations on tribal development would undermine tribal sovereignty

• Cautious, environmentally conscientious development has occurred

• Developing economic resources while maintaining reservation environmental health is an illustration of responsible tribal sovereignty

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The Importance of SUAQP Ozone Data

• Without reservation ozone data, limitations would be imposed

• Tribe has 22 years of ozone data • Data confirm ozone levels reasonable,

decreasing• Continued responsible development is OK• Data have helped preserve tribal sovereignty

Note: Importance of data illustrates need for good data QA/QC

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Actual 8-hr Ozone Data

Four corners area historical 8hr Ozone 4th max vs. primary standard.

00.01

0.020.03

0.040.05

0.060.07

0.080.09

1988 1990 1992 1994 1996 1998 2000 2002 2004Year

8hr [O3] PPM

Primary std. (0.084 ppm)

Bloomfield

Ute 3Bondad

Ute 1 Ignacio

NO2

A.A. Mean

Ute 2Red Mesa

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Actual Ozone Design Values

Ozone 3 year running, 8hr 4th max, design values

0.055

0.060

0.065

0.070

0.075

0.080

0.085

0.090

1988 1990 1992 1994 1996 1998 2000 2002 2004

Year

Design value (ppm)

Ute 1Ignacio

Ute 3Bondad

Primary std. (.084 ppm)

Mesa Verde

Bloomfield

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Different Ozone Levels

• Reservation ozone levels at record lows • Data confirm responsible economic growth

has occurred• San Juan County, NM emits 22 times Nox, 7

times VOCs as La Plata County,CO • San Juan County warmer, more arid • San Juan County ozone levels not

representative of Southern Ute Reservation or La Plata County

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Data to the Rescue

• Without data, tribal economic development would be limited

• Direct infringement on tribe’s sovereignty • Tribe’s data priceless • Data have

– Preserved environmentally responsible economic development

– Helped preserve tribal sovereignty

Note again: data QA/QC were vital here

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Data will Help Your Tribe

• Ozone monitoring is beneficial• If data show ozone problem, your tribe can

implement control strategies • If data show no problem, your tribe can

encourage environmentally responsible economic development

• Data help tribes make good decisions• Data help protect tribal sovereignty

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Summary

• Federal government beginning to recognize tribal sovereignty

• Tribes must exercise sovereignty • Rights include decisions on health and

economic development on reservation• Data necessary to make well informed

decisions • Without data, tribal sovereignty is limited • Without good QA/QC, data are worthless