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6 ing out of on-reservation sales transactions between a non- ronmental evaluations and historic preservation issues in tribal member plaintiff and tribal defendants. This case affirmed transportation projects. Some states have formalized consul- tribal internal sovereignty (8). tation processes through memorandums of understanding (MOUs) (4). In 1992, the NHPA was amended to enhance the tribal role in historic preservation and created the Tribal His- 2.2.6 Self-Determination Era toric Preservation Officer program (6). (1968 to present) The NEPA (1969) established a national policy for the pro- Over the last 40 years, a great deal has changed since the fed- tection and enhancement of the "human environment to pre- eral government has embraced tribal self-determination poli- serve important historic, cultural, and natural aspects of our cies and no longer pursues assimilation policies. The severe national heritage" (4). It requires that an agency prepare an problems resulting from the Termination Period led to Environmental Impact Statement for all "proposals for legis- reforms that expanded the recognition of the powers of tribal lation and other major federal actions significantly affecting self-government. This policy shift strengthened the tribal sense the quality of the human environment" (4). of autonomy, permitted tribes to manage their own affairs, and The AIRFA (1978) was passed by Congress to "protect and produced a significant number of legislative actions that vali- preserve for tribes the right to believe, express, and exercise dated and advanced the self-determination principle (4). As a their traditional religions, including access to religious sites, result, tribal-state-federal relationships regarding transporta- use and possession of sacred objects, and freedom to worship tion planning, program management, and operations issues through ceremonies and traditional rites" (4). are relatively recent phenomena. The ARPA (1979) provided for the protection and manage- ment of archaeological resources and sites that are on public or tribal lands, and requires tribal notification if archaeologi- 2.2.6.1 Legislative Actions cal investigations would result in harm to any location consid- President Richard Nixon is credited with changing the direc- ered by the tribe to have religious or cultural importance. tion of the federal government and its treatment of tribes by Permits are required for excavation or removal of any archae- calling for a policy of "self-determination" (4). In 1968, Presi- ological resource located on tribal lands and requires consent dent Lyndon Johnson described Native Americans as the `for- of the tribe owning or having jurisdiction over the land (4). gotten' Americans and affirmed the rights of Native Americans The NAGPRA (1990) safeguards the rights of Native Amer- to remain Native Americans while exercising their rights as icans by protecting tribal burial sites and rights to items of cul- Americans. This led to the passage of the Indian Civil Rights tural significance to tribes. Protected cultural items include Act (1968), which entitled Native Americans to provisions of Native American human remains, funerary objects, sacred the Bill of Rights and mandated that tribal consent be required objects, and objects of cultural heritage (4). for states to assume civil and criminal jurisdiction over tribal Another significant piece of legislation during this period lands (4). was the passage in 1975 of the Indian Self-Determination and Many of the pieces of legislation enacted during the Self- Education Assistance Act (ISDEAA), which gave tribal govern- Determination Era impacted cultural competency, protection/ ments the authority to assume federal actions and make those preservation of tribal resources, and confidentiality of tribal actions tribal functions. Previously, these functions were sensitive matters. Tribal lands have unique historical, cultural largely a federal responsibility handled through the Bureau of and religious meaning to a tribe and must be respected. Tribal Indian Affairs (BIA). It also gave tribes the authority to per- self-determination policies are reflected in legislation, including form transportation planning, which had previously been done the National Historic Preservation Act (NHPA) (1966), by the federal government. However, because many tribes at National Environmental Protection Act (NEPA) (1969), Amer- the time did not have the resources to do such planning, the ican Indian Religious Freedom Act (AIRFA) (1978), Archae- BIA did the planning on their behalf (4).1 ological Resources Protection Act (ARPA) (1979), Native Legislation concerning business transactions that relate to American Graves Protection and Repatriation Act (NAGPRA) tribal lands was first enacted in 1872, and is now codified in (1990), and the National Historic Preservation Act amended 25 U.S.C. 81 (2005), which is entitled: "Contracts with Indian (1992). Tribes or Indians." It specified that no agreement or contract The NHPA (1966) required federal agencies to consult with with a tribe lasting more than seven years is valid unless it has any Native American tribe that attaches historical, religious, or the approval of the Secretary of the Interior (4). The Secretary cultural significance to historic properties that may be affected by a project (3). Through establishing programmatic agree- ments and state or tribal historic preservation officer positions, 1The lack of resources is still a current issue that endangers many tribes' ability to states and tribes have increased their capacity to address envi- develop and/or maintain a transportation planning program.

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7 will not sign a contract or agreement if "the agreement or con- 2.2.6.3 Executive Initiatives on Government- tract violates federal law, does not include remedies for a breach to-Government Relations of agreements or contracts, or includes an express waiver of Executive initiatives during this period established require- immunity as a defense in an action; or includes an express ments for government-to-government relationships that rec- waiver of the right of the tribe to assert sovereign immunity as ognized and respected tribal sovereignty and consultation with a defense in an action brought against the tribe." In addition, tribes prior to taking actions impacting them. Other actions the Secretarial approval is required for any contract that lim- that furthered tribal self-determination included legislation its tribal control of Native American land or transfers posses- designed to protect natural, religious, and cultural assets impor- sion or control to a non-tribal party (4). tant to Native Americans and Native American tribes. Presidential Indian Policy Statement of January 24, 1983, 2.2.6.2 Supreme Court Cases pledged a government-to-government relationship between the U.S. Government and Indian tribes (4). During the Self-Determination Era there was much litigation Presidential Memo, Government-to-Government Relations that reached the Supreme Court concerning tribal jurisdiction with Native American Tribal Governments (May 4, 1994), over non-Native Americans on tribal lands. From the 1960s to directed all executive departments and agencies to implement the 1980s, the Supreme Court recognized tribal sovereignty, the activities affecting tribal rights or trust resources "in a knowl- trust relationship, and tribal jurisdiction over nonmembers. edgeable, sensitive manner respectful of tribal sovereignty" (4). However, that changed in the 1990s as the Supreme Court sig- Presidential guiding principles included: operating within a nificantly impacted tribal sovereignty by limiting the ability of government-to-government relationship with federally recog- Native Americans to regulate the civil or criminal conduct of nized tribal governments; consulting with tribal governments non-Native Americans (5). "In the 1990s, tribes lost 23 of 28 before taking actions that affect federally recognized tribes; cases in which they appeared before the Supreme Court" (5). assessing the impact of activities on tribal trust resources and In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), assuring that tribal interests are considered before activities are the Supreme Court determined that tribes have "impliedly undertaken; and removing procedural impediments to work- lost certain sovereign powers due to the incorporation of tribal ing directly with tribal governments (4). nations into the United States." As a result, tribal courts do not Presidential Executive Order No. 12898, Federal Actions to have criminal jurisdiction over non-tribal members (4). Address Environmental Justice in Minority Populations and In Washington v. Confederated Tribes of the Colville Reserva- Low-Income Populations, directed each federal agency to tion, 447 U.S. 134, 100 S. Ct. 2069, 65 L.Ed.2d 10 (1980), the make environmental justice part of its mission by identifying Supreme Court determined that states cannot interfere with and addressing disproportionately high and adverse human tribal nations' sovereignty and that tribal sovereignty is health or environmental effects of its programs, policies, and dependent on, and subordinate to, only the federal govern- activities on minority and low-income populations including ment, not states (4). Native Americans (9). Montana v. United States, 450 U.S. 544 (1981) is considered Presidential Executive Order No. 13007, Indian Sacred Sites a decisive case in which the Supreme Court denied tribal juris- (May 24, 1996), directed federal agencies to accommodate diction over non-Native Americans engaged in conduct on access to tribal ceremonial use of sacred sites by tribal religious their own land within the reservation. "Montana exceptions" practitioners and protect the physical integrity of such sacred would be allowed if the tribe has a contractual relationship sites. This Executive Order addressed a problem in the AIRFA with the non-tribal member or if the non-member's activities by requiring federal agencies to avoid harming the physical have a substantial impact on significant tribal interest (1). integrity of such sacred sites (4). In Merrion v. Jicarilla Apache Tribe, 455, U.S. 103 (1983), The FHWA Indian Task Force Report (February 4, 1998) the Supreme Court recognized that Native American tribes was issued to provide guidance to FHWA regarding its rela- have the inherent right to tax activities occurring on tribal tionship with federally recognized tribal governments with lands, including activities by non-tribal members (1). the Federal Lands Highway and Federal-Aid Highway Pro- In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court grams. Environmental issues and processes had already been held that a tribal court does not have criminal jurisdiction a part of project development through the FHWA's NEPA over non-member Native Americans. In response to this process. However, tribal environmental issues were to be decision, Congress, using its plenary power, passed the `Duro incorporated to a greater degree into the tribal transportation fix,' which recognized the sovereign power of tribes to exer- planning process as well as during the project development cise criminal jurisdiction within their reservation over all and implementation processes in federally funded state trans- Native Americans, including non-members. This decision portation projects that impact tribal trust resources or tribal was upheld by the Supreme Court in 2004 (3). communities (4).