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Assistant Attorney General Ignacia S. Moreno Speaks at the Joint Native American Issues Subcommittee and Attorney General’s Advisory Committee Meeting
Rapid City, S.D. ~ Wednesday, July 27, 2011

Good afternoon.   I’d like to thank U.S. Attorney Brendan Johnson and his staff for hosting this important meeting.   I am honored to be part of the Department of Justice team meeting with you today.   I am the head of the Environment and Natural Resources Division in the Department of Justice.  

 

I would like to introduce several others from the Environment Division who also are here.  One of my Deputies who focuses on Indian issues, Ethan Shenkman, is here with me today, along with Craig Alexander, who is the Chief of our Indian Resources Section.

 

This could not be a more important time to talk about our Nation’s commitment to Indian tribes and their members.

 

I would like to give you a brief introduction to the work of the Environment and Natural Resources Division, or “ENRD.”   I also would like to briefly tell you about some of our current initiatives in Indian country.        

 

One of the core missions of the Division, and a priority of the Obama Administration and the Department of Justice, is strong enforcement of civil and criminal environmental laws to protect our Nation’s air, land, water and natural resources for all Americans.

 

The Division’s core mission also includes: Vigorous defense of environmental, wildlife, and natural resources laws and agency actions; Effective stewardship of our public lands and natural resources; and vigilant protection of tribal sovereignty, tribal lands and resources, and tribal treaty rights.   I could not be more committed to fulfilling the core mission of the Division and the Department.

 

Protecting and defending tribal resources and rights, and vigorously enforcing the nation’s environmental and natural resources laws, are crucial parts of the Justice Department’s efforts to achieve healthier communities and a sustainable future for native people.    

In all of the work that we do, we are mindful of the principles of “environmental justice.”   That is, we strive to ensure that all communities enjoy the benefit of a fair and even-handed application of environmental laws, and we conduct outreach to provide affected communities with a meaningful opportunity to participate in decisions that affect their wellbeing.

 

Principles of environmental justice apply with special force to tribal communities, many of which are uniquely affected by pollution and other environmental harms.   As I have travelled around the country visiting with tribal leaders, I have heard concerns about:

 

Fish that are disappearing, or too contaminated to eat;

 

Lands that are being flooded as a result of climate change;

 

The impacts of mining and oil and gas extraction on their lands and communities; and

 

Tribes that have plentiful water rights but no potable water for their people.  

 

These are quintessential environmental justice issues, and they deserve our full attention.  

 

Also, as you know, President Obama and Attorney General Holder are committed to forging renewed relationships with Indian tribes, including making sure that there is a meaningful government-to-government relationship between the United States and tribal nations.   I fully share that commitment and so does my team in ENRD.

 

Given today’s focus on public safety and law enforcement in Indian country, I would like to highlight two important areas of focus for the Division.  

 

First, I am very excited to announce that we will be developing two new training programs for tribal law enforcement officials and prosecutors on environmental and wildlife enforcement issues.  

 

The National Indian Country Training Initiative within the Office of Legal Education of the Executive Office of United States Attorneys has agreed to sponsor these sessions, one to be held out West and one to be held on the East Coast.

 

This training will help build tribal capacity to assume additional responsibility for the enforcement of environmental and wildlife laws in Indian country.

 

One of the themes will be the need to strike a careful balance between strong wildlife enforcement, on the one hand, and the preservation of Native American cultural and religious practices, on the other.

 

We will be seeking input from tribal leaders and organizations around the country, so that we can ensure that the training suits the needs of tribal law enforcement officers.

 

Second, I am proud to say that the Division’s litigation relating to reservation boundaries and tribal jurisdiction continues to play an important role in clarifying prosecutorial authorities in Indian country.  

 

One obstacle to policing and prosecution of cases in Indian country is confusion over reservation boundaries, which results in uncertainty as to whether the tribe, federal government, or state has policing, prosecutorial, or civil jurisdiction.  

 

For example, working closely with Brendan Johnson’s office, we have successfully supported the existence of the Yankton Sioux Reservation here in South Dakota in a series of cases that concluded just last month when the Supreme Court declined to review the ruling of the Court of Appeals that confirmed the existence of the Yankton Sioux Reservation.  

 

And last year, working with the Saginaw Chippewa Tribe of Michigan, we helped craft a settlement that confirmed the boundaries of the Isabella Reservation.   The settlement with the Tribe, Michigan, and local governments resolves a long-standing dispute by recognizing the original boundaries of the Isabella Reservation, and includes agreements to promote greater inter-governmental cooperation and communication.

 

These are just some examples of our work in this area.   In addition to these matters, ENRD has been considering additional ways that we can best address significant issues facing tribes and tribal members.  

 

We have identified several goals:     

 

First, we are working to increase affirmative litigation to protect tribal rights and resources.   This includes cases like the ones that I have just described, which seek to protect reservation boundaries, as well as cases to assert tribal water rights, to defend treaty hunting and fishing rights, and to protect the scope of tribal jurisdiction.  

 

We also will continue to work hard to resolve complicated tribal water rights issues.   The Division is currently involved in about 30 water rights adjudications, in nearly every Western state.

 

Last year, the Division contributed to five landmark Indian water rights settlements which, when fully implemented, will resolve contentious Indian water rights issues in three Western states, New Mexico Montana, and Arizona.   These settlements allow tribes to take care of their members and fulfill the promise of a bountiful homeland.

 

Second, we are looking for bold, new ways to settle conflicts that have defied resolution, despite decades of costly and fruitless litigation, while protecting tribal rights and interests.   

 

One example is our participation – with the Klamath, Yurok, and Karuk Tribes, the States of Oregon and California, and multiple local and federal stakeholders – in negotiating a broad settlement addressing the fish, water, and hydropower resources of the Klamath River Basin in Oregon and California.  

 

The settlement may lead to the removal of four dams that have long prevented salmon from reaching their historic waters.   The settlement also will help to provide for a fair allocation of limited water resources among the tribes and other water users. 

 

At the reception the night before the agreements were signed, I was inspired to see tribal leaders, farmers, fishermen, corporate officers, and environmentalists standing shoulder-to-shoulder, when once they were toe-to-toe.   A similar innovative approach is needed to resolve the government’s Tribal Trust litigation.  

 

That litigation consists of 94 lawsuits that have been brought by over 100 separate Tribes or tribal groups, including several Tribes in South Dakota, and that allege decades of government mismanagement of tribal trust funds and natural resources.   We have been working at a high level within the Departments of Justice, the Interior, and Treasury to explore opportunities to resolve pending cases in a fair and expeditious manner.  

 

The resolution of the Cobell litigation was an important step forward, and we hope that many of these tribal lawsuits may be resolved as well.  

 

Third, we will continue to address legal issues impacting Indian tribes.   For example, we are working closely with the Department of the Interior on challenges to the Secretary’s authority to acquire land into trust for tribes, one of the key authorities provided by the 1934 Indian Reorganization Act.  

 

Right now, we are defending decisions by the Department of the Interior to take land into trust in South Dakota on behalf of two tribes, the Sisseton Wahpeton Oyate Tribe and the Yankton Sioux Tribe.

 

Fourth, we are working to improve environmental compliance in and around tribal communities.   Many tribal communities face disproportionate environmental burdens, including the lack of safe drinking water, pollution from current and former mining operations, and open dumps.   These problems are complex, but we are working collaboratively with other federal agencies and with tribes to address them.

 

Fifth, we are seeking opportunities for the Department to participate in legal cases to strengthen and support tribal courts and tribal judicial systems.   Just last month, in the Water Wheel case, the Ninth Circuit held that a tribal court’s ability to exercise jurisdiction over non-member’s use of tribal lands is an inherent part of its authority.   This is an important development that will allow tribes to take control over their lands.  

 

Finally, we are increasing our outreach to tribes.   For example, last September, I joined Brendan Johnson, Mike Cotter, and many others who are here today in a listening session with Montana tribes.   Soon after that session, a team of DOJ lawyers visited one of the Montana reservations to follow up on a possible case involving potentially polluted water flowing onto tribal lands.

 

We also travelled around the country, from Alaska to Arizona, and from Oklahoma to Washington State, to meet with tribal leaders to hear about their environmental and natural resources concerns, which include climate change impacting their lands and fishing grounds, the effects of mining operations, and access to subsistence hunting and fishing.

 

Meeting directly with affected tribal communities is at the heart of environmental justice, and is also key to strengthening our government-to-government relationship with tribes.  

 

In all of our efforts, and in our litigation, Division lawyers will continue to manage the United States’ obligations and government-to-government relationship with tribes with both care and respect.  

 

As President Obama has recognized:   “History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results.”  

 

I could not agree more.   The time has come to change the course of history.   Today, I brought with me key people from the Division, who, along with me, could not be more committed to the work we do on behalf of Indian Tribes. Please make sure to let us know how we may foster a stronger government-to-government relationship. Thank you very much.

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