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Pallone: Environmental Protection Agency ignores tribal governments

All across America, tribes are being forced to fight with states and the federal government over encroachment on their inherent sovereignty. Recent actions at the federal and state levels have seriously undermined the sovereignty of tribes, and demonstrate why the U.S. Congress must re-evaluate tribal-state relations, and reaffirm America's commitment to tribal sovereignty.

The U.S. Environmental Protection Agency's (EPA) recent decision to turn over water pollution controls on two Indian reservations in Maine to the state is the latest example of how federal actions can seriously undermine tribal sovereignty.

In response to EPA's decision, Chief Barry Dana of the Penobscot Nation has already requested Congress revisit the Maine Indian Claims Settlement Act (MICSA), an act approved in 1980 that serves as the foundation of tribal-Maine relations. I too share in Chief Dana's disappointment with the EPA's decision, and fear that its actions will have irreversible consequences for the environmental health, safety, and welfare of tribal members and lands.

Both the Penobscot Nation and Passamaquoddy Tribe are already faced with polluted waters because Maine has failed to regulate industry pollution into tribal waterways. Presently tribal members can no longer fish freely from the Penobscot River because fish consumption advisories have been extended from the principal residence of tribal members (Indian Island) to 40 miles upriver. By granting Maine control over pollution into tribal waterways, I believe the EPA will place tribal lands at increased risk for degradation, as well as further impact the long-term health of current and future generations of tribal members.

As part of its decision, the EPA argued that in enacting MICSA, Congress fashioned a unique set of jurisdictional provisions that substantially revise the typical relationship among Indian, state, and federal governments that would usually apply in Indian country. According to the 1980 law, both the Passamaquoddy Tribe and the Penobscot Nation were subject to the laws of the State of Maine unless an action involved internal tribal matters.

While I understand the EPA's assessment of Congress' intent to create a distinct relationship between Maine and the two tribes, I do not feel that it was the intent of Congress to erode the sovereignty of the Maine tribes, nor do I feel that the EPA has accurately realized the congressional intent in determining what constitutes an "internal tribal matter."

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The EPA argues that administration and enforcement of the water pollution controls of the Penobscot River cannot be considered an "internal tribal matter" because the impact on non-tribal members would be far greater than its impact on tribal members. The federal agency bases its decision on the fact that many of the facilities that would be impacted by these pollution controls are located on non-Indian lands, are publicly owned, and often provide vast employment opportunities to local communities.

The EPA further argues that decisions concerning these facilities and the manner in which they can pollute the Penobscot River involve the interests of citizens of the towns and employees of these facilities, most of whom are non-tribal members. Clearly, the EPA is addressing the concerns of non-tribal members over those concerns experienced by tribal members.

Particularly troubling is the EPA's failure to consider what is of most significance: it is not the number of persons whose interests are affected by this decision, but rather the effects of the decision itself. In other words, by turning over water pollution controls of the Penobscot River to the State of Maine, there would be far greater consequences for the survival of tribal members than those suffered by non-tribal members. As such, the administration and enforcement of water pollution controls should be considered an "internal tribal matter."

The EPA has long recognized that tribes require clean water for a domestic water supply and to maintain fish, aquatic life and other wildlife for both subsistence and cultural reasons. Furthermore, the EPA has acknowledged that clean water is a crucial resource that plays a central role in tribal culture. Unfortunately, in its decision the EPA has departed from its previously held philosophy, and joined in the current assault on American Indians, and tribal sovereignty.

It is clear that tribes have a strong interest in regulating water quality because clean water has a direct effect on the health and welfare of tribes that is serious and substantial. Accordingly, in an effort to ensure the Penobscot and Passamaquoddy tribes retain their inherent sovereignty rights, including the right to manage tribal waterways, I welcome Chief Barry Dana's request to revisit the Maine Indian Claims Settlement Act of 1980. Furthermore, I encourage a lively and active debate within the 108th Congress on Indian sovereignty issues in general. It is time for America to reaffirm its commitment to American Indians and their right to co-exist with us as sovereign nations.

Congressman Frank Pallone Jr. is currently serving his eighth full term in the U.S. House of Representatives. Rep. Pallone represents New Jersey's Sixth Congressional District, serving as a senior member of the House Energy and Commerce Committee and the House Resources Committee.