A QUESTION OF TRUST:
In response to the largest and most damaging oil spill in North American history, Congress in 1990 enacted the Oil Pollution Act (OPA). Among other authorities, OPA provides for the recovery and restoration of natural resources affected by a release of oil into navigable waters or adjoining shorelines. Congress modeled the natural resource damage recovery provisions in OPA after those applicable to the release of hazardous substances found in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enacted ten years earlier in 1980. Together, these two statutes provide comprehensive authorities for responding to and restoring damages to natural resources caused by oil spills and the release of hazardous substances.
Natural resource trustees play a central role in this scheme because both statutes charge the trustees with the responsibility of assessing the extent and value of damage to natural resources in which they claim an interest, as well as developing and implementing plans for restoration activities. The law also provides that trustees may pursue damage actions in federal court to recover assessment and restoration costs from those responsible for the contamination.
Substantively similar provisions in both acts attempt to delineate which natural resources are subject to these authorities, and who can act as a natural resource trustee. Agencies of federal, state and local governments, Indian tribes and, in some circumstances, governments of foreign nations may act as trustees. A cursory glance at this list reveals one definitive limitation on the universe of candidates for trusteeship: only governmental or sovereign entities may act as trustees.
In contrast to the limited class of entities who may act as trustees, the statutes adopt an apparently expansive concept of the corpus of a natural resource trusteeship. The statutes define natural resources as “land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by” the trustee. This definition serves two functions. First, it identifies various environmental media which may become subject to a trust. Second, it identifies a variety of types of interests in those media which supports an assertion of trusteeship.
These definitions create substantial opportunities for assertion of trusteeship by Indian tribes in the lower‑48 states because a broad range of statutorily sanction interests may support trusteeship over virtually any contamination in Indian Country. The availability of these opportunities for Alaskan Native tribes, however, is less clear. When read in combination with the definition of “Indian Tribe” included in these same statutes, these provisions potentially preclude Alaskan tribes from participating as natural resource trustees in the vast majority of natural resource damage scenarios that arise in Alaska. This is because Alaskan tribes do not generally enjoy the kind of relationship to land and resources envisioned by the statute. While Alaskan Native tribal governments are not statutorily precluded from acting as trustees, in general, Alaskan Native tribal governments do not own, manage, or assert governmental control over the bulk of Native lands. Instead, these lands and resources are for the most part owned, managed and controlled by private, for profit Native Regional or Village corporations set up under the Alaska Native Claims Settlement Act (ANCSA). As private entities, these corporations have no statutory authority to pursue natural resource damage claims. Nor may they participate as natural resource trustees in response or remediation actions.
In some ways the subsistence and natural resource interest of
Alaska Natives and the
This paper evaluates each of these bases for affording Alaskan Native tribes recognition as natural resource trustees under OPA and CERCLA. Part II outlines the statutory roles, responsibilities and rights of natural resource trustees, including the important role of the Environmental Protection Agency in notifying trustees of natural resource injury and coordinating response and restoration activities. Part III explores the tension between the public trust rational behind the natural resource damage provisions and the unique history and legal status of Alaskan Native peoples, lands, and resources. This discussion analyzes the relationship of Alaskan Native tribes to the federal government, the system of land ownership created by ANSCA, and the relation of Alaskan Natives both to that system and to the land and resources from which they draw their subsistence. Part IV assesses the effect of relevant federal Indian policies and canons of construction on EPA’s notice and coordination obligations and Alaskan Native trusteeship assertions. Part V concludes that there is ample legal and policy support for EPA and the courts to recognize Alaskan tribes as natural resource trustees.
The natural resource damage provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA) establish three interdependent roles for natural resource trustees. First, trustees are charged with assessing damages for injuries to natural resources that result from a release of oil or hazardous substances. This may include quantifying the extent and value of natural resources injured, destroyed or lost due to the release, the cost of restoring resources to their baseline condition, the cost of the interim loss of resources between injury and recovery, and the reasonable costs of a conducting a damage assessment.
Once the extent of damage suffered has been quantified, the law provides that trustees may recover these damages from potentially responsible parties (PRPs). Trustees may recover these damages through litigation to recover compensation directly from PRPs or negotiation with PRPs to obtain a PRP‑financed assessment and restoration. Sums recovered under the natural resource damage provision may be used only to restore, replace or acquire natural resources equivalent to those damaged. Trustees thus have a subsidiary obligation under the statute to restore natural resources to their pre‑release approximate condition, or to acquire equivalent resources.
These three obligations—assessment, recovery of damages, and restoration of resources—are not only interdependent but are intimately related, both in timing and content, to the assessment and selection of appropriate removal and remediation actions taken by PRPs or the federal government in response to a release of hazardous substances or oil. In order to avoid conflict between government or PRP‑led response actions and trustee activities, or the possibility that the rights of trustees could be impaired by such actions, coordination between trustees and others involved in cleanup activities is essential.
For releases or spills on land or inland waterways, CERCLA and OPA assign to the Environmental Protection Agency (EPA) the task of ensuring effective coordination between cleanup operations and natural resource trustees’ activities. Unlike the federal resource agencies, the Environmental Protection Agency is not itself designated as a trustee. Rather, EPA’s role is one of coordinating the assessment activities of trustees with other activities conducted concurrently at the site of a release, such as emergency response, removal and site remediation, investigations and planning.
An essential element of this coordination is ensuring trustees have access to information in the control of or generated by PRPs or others involved in the cleanup. Thus EPA is obligated to make available any information that can assist trustees in assessing natural resource damages. EPA must also coordinate with trustees in requiring PRPs to comply with requests for information.
As a necessary precursor to effective coordination, EPA is obligated to notify trustees when the potential for damage to natural resources arises due to a release of hazardous substances. When natural resources are affected by a discharge of oil, EPA is similarly obligated to consult with natural resource trustees prior to initiating a removal action. As a matter of policy, EPA has determined that it will make “every effort to encourage Trustee participation at all stages” of the CERCLA process.
These authorities serve a variety of functions. By contacting natural resource trustees at an early stage of site investigations, EPA can access the specialized knowledge and technical expertise of trustees who, in most cases, are intimately familiar with the ecosystem dynamics of the areas and resources under their control or management. This information is invaluable in characterizing the extent and effect of contamination on, for example, sensitive species and habitats. Without this information, remedy selection could proceed with little or no consideration of the effects on natural resources.
Notice and coordination also enable trustees to preserve and quantify damage claims by providing trustees access to information that will be helpful in assessing injury and identifying actions that will trigger statutes of limitation. As in any damage action, the ability of trustees to secure fair compensation depends in part on how well the nature and extent of the injury can be assessed and quantified. In many cases, a damage assessment conducted after completion of removal and remediation actions would inadequately measure pre‑release value or lost interim value.
Early and continued involvement in cleanup operations and decision‑making processes also aids trustees in determining the scope of necessary restoration. Trustees participation ensures that natural resource values are considered in the selection of appropriate removal and remediation actions. Because certain removal and remediation alternatives may be inconsistent with the pre‑release uses of the natural resource injured, participation of natural resource trustees in the remedy selection phase is essential. This participation allows trustees the opportunity to ensure that that selected response actions and settlement agreements include measures that are compatible with trustees’ obligations to restore natural resources to their pre‑release state, and that restoration plans do not duplicate or conflict with cleanup efforts.
In recognition of the importance to trustees of notification and coordination, EPA has adopted an aggressive policy of encouraging participation of all potential trustees in all stages of oil and hazardous substance response. A number of factors, such as where the release or spill is located, what habitats or species may be affected, and the proximity of federally, state or tribally managed lands or resources may guide site managers in identifying entities that may claim a trust interest in affected resources.
However, notification of and participation in response actions, while providing access to information necessary to establish natural resource claims, does not itself provide a legal basis for assertions of trusteeship. In other words, EPA does not confer statutory standing to pursue a natural resource damage action by sending a notice letter to a potentially interested entity. Nor does EPA require that trustees substantiate their claim to trustee status prior to receiving notification. Rather, EPA takes the position that trustees themselves are in the best position to determine whether a given release affects resources under their management or control, and all potentially interested entities should thus be notified in the event of a release. In the end, trustees bear the ultimate burden of substantiating their assertion of trusteeship in court. To claim natural resource damages in court, a trustee must show that it meets the statutory requirements for recovery, regardless of whether the trustee benefited from proper notice and coordination by EPA.
Many commentators have noted that the natural resource damage provisions of CERCLA and OPA and the associate notions of trusteeship draw inspiration and historical legitimacy from the common law public trust doctrine. This doctrine holds that certain natural resources are held by governments in trust for the benefit of their people. The legislative history of CERCLA also indicates that the purpose of natural resource liability is to “preserve the public trust in the Nation’s natural resources.”
It is not surprising then, that natural resource damages are recoverable only for resources in which the public holds a primary beneficiary interest, and are not recoverable for purely privately held resources. However, at least one court has held that the statutory language of the NRD provisions “does not limit the definition of ‘natural resources’ to resources owned by a government.” In promulgating regulations governing natural resource damage assessment procedures, the Department of the Interior has likewise taken the position that the statutory language “managed by, held in trust by, appertaining to, or otherwise controlled by,” should be read broadly to apply to “a wide range of legitimate government interest in natural resources that may, in fact, be held in private ownership.” Recovery is intended, however, to compensate for the loss to the public, and thus only representatives of the public, i.e. governmental or sovereign entities, may exercise the duties of natural resource trustee.
By executive order and through promulgation of the National Contingency Plan (NCP), the authority of the President of the U.S. to act as a trustee for natural resources under CERCLA and OPA is delegated to the heads of various executive departments, including the Secretaries of Interior, Commerce, Defense, Energy and Agriculture. These officials are authorized to act as federal trustees for resources controlled or managed by their respective agencies. State governors are also required to designate state officials who are authorized to serve as trustees for resources under state control or management.
While CERCLA and OPA clearly designate federal and state governments as natural resource trustees, the corresponding authority of tribal governments to serve as trustees is statutorily mandated only under OPA. Under sections 1002 and 1006 of OPA, tribal trustees may recover damages from responsible parties for injury, destruction, loss or loss of use of natural resources “belonging to, managed by, controlled by, or appertaining to such Indian tribe.” Section 1006 of OPA provides for designation of tribal trustees and assigns to tribal trustees the same functions as are assigned to federal and state trustees. In contrast, CERCLA does not specifically authorize tribes to act as trustees, although the liability provisions clearly state that liability for natural resource damages “shall be to . . . any Indian tribe.” The authority of tribes to receive notice and coordination benefits in the case of a release of hazardous substances derives from EPA’s interpretation of this liability provision.
In 1990, EPA proposed revisions to the National Contingency Plan that would reconcile the NCP with statutory changes made by the 1986 amendments to CERCLA. In the preamble to the proposed revisions, EPA made the following statement:
The amendments to CERCLA provide that an Indian Tribe may bring an action for injury to, destruction of, or loss of “natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation.” . . . The revisions in [40 C.F.R.] § 300.610 reflect these statutory changes.
The revisions arguably do much more than simply reflect the statutory authority of tribes to bring actions for recovery of natural resource damages. First, the new NCP defines “trustee” as “an official of a Federal natural resources management agency . . . or a designated State official or Indian Tribe who may pursue claims for damages under section 107(f) of CERCLA.” This language confers trustee status to not only those entities statutorily designated as trustees but also to those entities who can statutorily assert a claim for natural resource damages. EPA thus outlined a conceptualization of natural resource trustee status as depending not on the statutory designation of a trustee but rather on the existence of a trust corpus that has suffered injuries cognizably under the statute.
Second, the regulation directs tribal chairman or their designees to act as natural resource trustees, and authorizes these tribal trustees to act whenever tribal natural resources are injured, destroyed, lost or threatened by a release of hazardous substance or oil. The NCP thus charges tribal trustees with the same responsibilities for assessing damages and implementing restoration activities as were statutorily assigned to state, federal and tribal trustees under OPA, and to state and federal trustees under CERCLA and OPA. Tribal trustees are also entitled under these regulations to the same notice and participation rights afforded state and federal trustees when tribal trust resources are potentially affected by a release of hazardous substances or oil.
EPA has taken an expansive view of the role of Indian tribes as natural resource trustees, and of its own obligations to promptly notify and coordinate response actions with trustees. Read in concert, these two policies clearly provide ample opportunity for tribes to ensure that the natural resources in which they claim an interest are protected and restored after a release of oil or hazardous substances. Noticeably absent from EPA’s arsenal of regulations and guidance documents, however, is any substantial consideration of the unique issues raised by assertions of trusteeship by Alaskan Native tribes. These issues arise out of an inherent tension between the public trust rational behind the natural resource damage provisions and the unique history and legal status of Alaskan Native peoples, lands, and resources.
The foundation of the natural resource damage claim in the public trust doctrine means that, in general, trustees cannot recover damages for injury to purely privately owned resources. Rather, recovery under these provisions is intended to compensate the public for the loss of use and benefit from injured public resources. The statutes incorporate this doctrine by defining natural resources as “belonging to, managed by, held in trust by, appertaining to, or otherwise controlled” by a government. The only decision interpreting the scope of this provision, Ohio v. United States Department of the Interior, held that while this language excludes “purely private resources” it does not limit recovery to resources owned by a government. Rather, the phrases following “belonging to” indicate that certain types of governmental interest other than ownership may create a trustee interest in even privately‑owned resources.
No court or administrative body has definitively addressed
the question of how extensive or tenuous an interest may be to substantiate a
trusteeship claim. The
In the preamble to revised regulations promulgated in response to this remand, DOI stated:
[T]he Department notes that it had not meant to suggest that recoveries under the rule hinge solely on ownership or exercise of a formal document transferring the property to a government entity . . . . The rule repeats the statutory language of “belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by,” and thus covers a broad range of government interest in natural resources on behalf of the public. Pursuant to that language, general sources of authority for recovery under the rule could include, but not necessarily be limited to, relevant treaty or other provision of international law, constitution, statute, common law, regulation, order, deed or other conveyance, permit, or agreement.
The statutory phrase “belonging to” connotes ownership and would cover government‑owned lands, as well as resources affixed, i.e., permanently attached, to such lands. However, the remaining terms, “managed by, held in trust by, appertaining to, or otherwise controlled by,” ensure a wide range of legitimate government interest in natural resources that may, in fact, be held in private ownership.
This language does little to pin down the precise nature of
the government interest required to recover for injury to privately held
resources. It does indicate, however,
The relevant question in the context of
This situation presents a dilemma for both EPA and natives whose subsistence resources are injured by a release of oil or hazardous substances. EPA is constrained by law and executive policy from treating ANCSA corporations as trustees. In reality, however, much of the land owned by these corporations is used not as private land but as subsistence hunting and fishing grounds for local Native populations. As governmental entities responsible for protecting the health and welfare of their members, federally recognized tribal governments would appear to be the most logical choice when a release or spill injuries these resources. However, the tenuous nature of tribal governments’ jurisdictional claims over ANCSA lands would appear to bar such a choice under the statutory definition of natural resources.
What is needed then, from the viewpoint of Alaskan Native tribes who seek to employ the natural resource damage provisions to protect the resources used by their members, is an expansive interpretation of the definition of natural resources coupled with a re‑conceptualization of Alaskan Native tribal jurisdiction. This position recognizes the public nature of subsistence resources located on ANCSA lands, while remembering that the sovereign power of tribal governments does not reset solely on the basis of property ownership and control, but rather finds an independent grounding in notions of tribal inherent sovereignty, self‑determination, and protection of tribal members’ health, welfare and traditional way of life. To understand the dilemma and its resolution through such a position requires a clear understanding of the relationship between Alaskan Native tribes and the federal government, the system of land ownership and control created by ANSCA, and the relation of Alaskan Natives both to that system and to the land and resources from which they draw their subsistence.
One of the main arguments made prior to the 1993 against recognizing the tribal status of Alaskan Natives was the “peculiar nontribal organizations under which the Alaska Indians operate.” The Supreme Court of Alaska expressed this sentiment in noting that “the village rather than the ethnological tribe has been the central unit of organization.” However, this position ignores the many ways in which Alaskan Native villages resemble historical or ethnological tribes in the lower‑48 states.
Scholars have argued that the characteristics of these
As historical tribes, therefore, Alaskan Native societies
entered into a political relationship with the federal government upon contact
This relationship was officially recognized by the federal
government when the Bureau of Indian Affairs (BIA) published a notice in the
Federal Register clarifying that recognized tribes in
Establishing the status of Alaskan Native tribes as sovereign governments does not answer the question of the extent of the powers that a tribe can exercise in the name of its sovereign status. Under well established principals of federal Indian law, the validity of a tribe’s exercise of a given sovereign power is assessed by determining whether and to what extent a given power has been divested by Congressional action or by implication. A Congressional divestiture of sovereign trustee power is not present in either CERCLA or OPA because both statutes allow federally recognized tribes, including Alaskan Native tribes, to serve as natural resource trustees under appropriate circumstances. The next question then, is whether any other Congressional act has divested Alaskan tribes of this authority. Because natural resource trustee activities necessarily touch on issues of land and resource use and management, the set of federal laws governing Alaskan Native land ownership and use are relevant to this question.
In 1971, Congress passed the Alaska Native Claims Settlement
Act (ANCSA). In return for relinquishing their claims of
aboriginal title to lands within the state of
Although ANCSA expressly did not diminish the political relationship of Alaska Natives to the federal government, the lands and settlement payments were not directed to the tribal governments. Instead, Congress established a complex arrangement where the land grants and payments from the settlement were received by a new set of regional and village corporations, chartered under state law as business for‑profit corporations. ANCSA established twelve Regional Corporations to select and take fee title to 16 million acres of land, and 203 Village Corporations to select 22 million acres in and near Native villages. All of the lands were transferred in fee simple with few restrictions on alienation. The rest of the settlement lands were set aside for pending native allotment applications, townsites, historic sites, and other purposes.
Each Alaskan Native alive on the date ANCSA was passed was entitled to 100 shares in a regional corporation and, depending on residency, to become a shareholder in a village corporation. Alaska Natives born after that date may become shareholders only by inheritance. In some cases, the shareholders of some Village Corporations have transferred village corporation lands to the local tribal government for the village.
The legal implications for tribal governments of the new corporatism heralded by ANCSA were, for many years, uncertain at best. The 1998 U.S. Supreme Court decision in Alaska v. Native Village of Venetie Tribal Government settled one aspect of this question when the Court definitively held that ANCSA lands are not Indian Country. This means that Native village tribal governments and courts cannot exercise tribal jurisdiction over certain matters even on land held in fee simple by the tribal government.
The primary issue in Venetie was whether lands held in fee by the
The Supreme Court determined that to be considered a dependent Indian community, and thus Indian Country, two requirements must be met. First, the lands must have been set aside by the federal government for the use of the Indians as Indian land. Second, the lands must be under the superintendence of the federal government. The Court decided there was no federal set‑aside in the case of the Venetie lands because ANCSA revoked the former reservation status of the land and transferred unrestricted title to private, for‑private corporations, with the legislative goal of promoting self determination and avoiding any permanent racially defined institutions, rights, privileges or obligations. As to federal superintendence, the Court found that several aspects of ANCSA were inconsistent with continued federal superintendence, and did not agree that the continued provision of federal health, social, welfare and economic programs supported a finding of federal superintendence.
While ANSCA dramatically limited the territorial sovereignty
of Alaskan Native tribes by eliminating Indian Country, the Act had little effect
on other attributes of tribal sovereignty. No attempt was made in ANCSA to limit the
authority of traditional tribal governments in Native villages. Rather, Congress expressed clearly on the
face of the Act that it intended the Act to be a land claims settlement. Section 1626(a) states that the payments
and corporate land selection provisions “shall constitute compensation for the
extinguishment of claims to land, and shall not be deemed to substitute for any
governmental programs otherwise available to the native people of
While the Venetie court’s interpretation of ANCSA stripped Alaskan Native tribal governments of significant basis for asserting certain governmental powers, the decision does not resolve all questions as to the scope of tribal sovereign powers in Alaska. The ruling may be definitive for those powers which federal law limits to exercise within the boundaries of Indian Country, such as taxation and criminal jurisdiction. However, the decision has little import for those aspects of tribal sovereignty that do not depend upon the existence of Indian Country. Amongst these are tribes’ sovereign power to act in situations where there is a “direct effect on the political integrity, economic security, or the health or welfare of the tribe.” When the natural resources that a tribe’s members depend upon for subsistence have been injured, Alaskan Native tribal governments can argue that the power to act as a natural resource trustee falls within this realm.
Alaskan Natives traditionally enjoy a subsistence lifestyle which relies upon the capture of local fish and wildlife to provide the sustenance of daily life. In general, Alaskan Natives settled and established permanent communities in areas with convenient access to these resources. Native Villages therefore tend to be located near river and coastal areas that provided fishing and marine mammal hunting grounds, near major wildlife migration corridors, or in close proximity to breeding or wintering grounds for species such as caribou. Many Native groups employed a pattern of establishing winter fishing villages along the states’ major rivers. During the summer months, various groups would leave and establish seasonal camps in inland areas that were devoted to seasonal fisheries, trapping or hunting. This pattern continues today, as Alaskan Natives exercise their rights along with other Alaskans to engage in “customary and traditional”  subsistence uses of natural resources.
These rights were established under federal law in 1980, when
Congress passed the Alaska National Interest Lands Conservation Act (ANILCA). This law provides rural residents of
The terms of the subsistence preference provision of ANILCA
apply only to federal public lands, which by definition exclude ANCSA lands
The State of
The federal Department of Fish and Wildlife thus assumed
management authority over subsistence hunting and fishing on federal public
lands in 1990, and will continue to enforce the rural subsistence priority on
federal lands until such time as
For Alaskan Natives, however, subsistence use of natural resources is not a matter of statutory preference or confined hunting and fishing rights which may or may not apply depending on which side of a property line the caribou herd is grazing on any given day. Rather, subsistence is a way of life. Subsistence practices and values are deeply imbedded in Alaskan Native culture, and because these values and practices often conflict with pressures from outside the Native community, the preservation of this way of life is intimately tied to the Native struggle for self‑determination.
This way of life can also be severely impaired when the
natural resources upon which the subsistence lifestyle depends are injured due
to a release of oil or hazardous substances.
For example, local Alaskan Native populations were severely affected
when the Exxon Valdez spilled millions of gallons of oil into
While participation of the
The ability to launch a successful trustee action for natural resource damages depends, however, not only on presenting a substantiated basis for asserting trusteeship, but also requires detailed quantification of the extent and value of injury, the cost of restoring resources to their baseline condition, and the cost of the interim loss of use. As discussed above, the process of conducting a natural resource damage assessment is most effectively accomplished if trustees are notified of potential injury and can coordinate assessment activities with response and cleanup operations. The Environmental Protection Agency (EPA) is statutorily obligated to notify and coordinate trustee actions. When potential trustees include Alaskan Native tribes, this statutory obligation is supplemented by a collection of federal policies and cannons which impose special obligations on federal agencies in their dealings with federally recognized tribes.
First, the federal government, by virtue of its trust
responsibilities towards tribes, is obligated to protect the sovereignty of
tribes and their rights to govern themselves and their resources. EPA, as an arm of the federal government, is
obligated to act in accordance with this trust responsibility when taking
actions that affect tribes. This responsibility is a corollary of the
special relationship between tribes and the federal government that arises from
tribes’ “dependent status” and the
history of relations between the
EPA’s trust obligation to protect Alaskan Native’s subsistence use of natural resources creates an obligation to ensure that tribal interests are considered in response and cleanup operations. Notification of tribal trustees is a logical outgrowth of this obligation because trustee participation in cleanup activities is a critical element in ensuring that natural resource values are incorporated in remedy selection. If there is doubt as to whether a tribe can justify an assertion of trusteeship in a given case, EPA should err on the side of treating the tribe as a trustee in order to assure it is acting consistently with its trust responsibility.
Related to the federal trust obligation is the federal
government’s policy of dealing with recognized tribes on a government‑to‑government
basis. This relationship was codified in
the 1994 Federally Recognized Tribes List Act which specified that “the
Like the federal trust responsibility, the scope and specific
requirements of government‑to‑government treatment is often
The consultation requirement also appears in EPA’s 1984 Indian Policy. While the EPA policy speaks in terms of the obligations of the agency with respect to implementing environmental statutes on reservations, the principals underlying the policy remain relevant in the Alaskan context. The policy specifies “two related themes” of promoting tribal self government and working with tribal governments on a government‑to‑government basis. In pursuing these themes, EPA obligated itself to consider tribal concerns and interests when making decisions affecting tribal environments.
In addition to these self‑imposed consultation commitments, EPA adopted a policy of pro‑actively seeking to remove statutory or regulatory barriers:
A number of serious constraints and uncertainties in the language of our statutes and regulations have limited our ability to work directly and effectively with Tribal Governments . . . . As impediments in our procedures, regulations or statutes are identified which limit our ability to work effectively with Tribes consistent with this Policy, we will seek to remove those impediments.
This policy indicates, at the very least, that when a statutory or regulatory scheme is unclear as to the way in which tribes should be treated, EPA should seek to resolve those ambiguities in favor of dealing with the tribe on a direct government‑to‑government basis. This policy of expansively interpreting statutes so as to maximize the role of tribal governments in environmental management may explain why EPA chose to recognize tribes as trustees under CERCLA, despite the absence of a clear statutory obligation to do so.
In this same vein, EPA’s policy counsels in favor of a broad interpretation of the agency’s notice and coordination obligations to Alaskan Native tribes. As sovereign entities whose subsistence resources are affected by response and cleanup operations, EPA is obligated under its own Indian Policy to consider Native concerns through government‑to‑government consultation. In fulfilling its obligation to deal with tribes on a government‑to‑government basis, EPA is similarly obligated to accord Alaskan Native tribes the same notice and coordination rights that EPA accords to other governments, such as states, who might assert a trustee interest in injured resources.
A number of
These rules of statutory construction apply with equal force to statutes affecting Native Alaskans. For example, ANCSA, as a settlement of aboriginal title claims, is considered to be “Indian legislation”. Because it enacted an extinguishment of claims based on aboriginal title to certain lands in exchange for compensation and other rights, ANCSA is also considered a treaty substitute. Issues arising under ANCSA are thus reviewed under standard canons of interpreting Indian legislation.
The tribal trustee provisions of CERCLA and OPA should be interpreted under these same cannons, because these provisions were clearly enacted to provide benefits to Indians. As such, they should be liberally interpreted to confer the same trustee authorities on Native Alaskan tribes. The “appertaining to” language in the definition of natural resources should also be liberally interpreted under these cannons to encompass the kinds of subsistence uses of resources by tribal members as sufficient to substantiate a Native Tribal trusteeship.
The Native tribes of
The basis for such a claim rests on two interrelated principles. First, because members of the tribe make continuous use of the injured resources for subsistence purposes, the resources can fairly be said to be “appertaining to” the tribe. This should suffice to establish the necessary connection between the resource and the trustee required by the statutory definition of natural resources. While a historical or aboriginal right to hunt and fish on the land or marine resource can no longer be asserted as an element of this connection, the language of the natural resource damage provisions is phrased in the present tense. This makes current use or occupancy the touchstone of whether the resource is fairly characterized as appertaining to the tribe. Such an interpretation of the statutory language is not unprecedented, as it closely tracks the expansive interpretations of this language by EPA and DOI. More importantly, such a broad interpretation is required by the generally accepted cannons of federal Indian law that statutes passed for the benefit of tribes be construed in their favor.
Second, because Native subsistence use of resources is
intimately ingrained in the welfare of the community, the preservation of these
resources falls within the tribal government’s inherent sovereign power. Given the unique history of Native land
The age‑old subsistence lifestyle of Native Alaskans touches on all three of these independent bases for asserting tribal sovereignty. Traditional Native Alaskan organized and regulated themselves on the basis of subsistence use values and practices, and continue to do so today. An event which upsets the continuity of subsistence lifestyle thus threatens not only the economic means employed by many Natives to provide for the sustenance of daily life, but also threatens to shake the very foundations of Native tribal society. Tribal health and welfare is also directly affected when subsistence resources are injured, because such injury impairs members subsistence way of life. Tribes acting to restore resources which are imperative to the welfare of their members’ way of life thus act within the commonly recognized scope of their inherent sovereignty. As the Alaska Supreme Court recently recognized, this authority is retained by tribes regardless of any derogation of territorial jurisdiction accomplished by ANCSA.
This position couples an expansive interpretation of the
natural resource damage provisions of CERCLA and OPA with a focused conception
of Alaskan tribal sovereignty to resolve the apparent dilemma of who shall
serve as natural resource trustee for publicly utilized but privately owned
subsistence resources in
Nor does this resolution deviate from EPA’s own rich tradition of encouraging Native responsibility for environmental management. EPA has already taken an expansive view of its notice and coordination obligations to Indian tribes in the lower 48 states; it is but a small step in the same direction to recognize the sovereign interest of Alaskan Natives in enjoying similar treatment. No statute, judicial interpretation, or executive policy prohibits EPA from aggressively working with Alaskan Native tribes as natural resource trustees. Moreover, such a position may be affirmatively required by EPA’s trust obligations, its own policy of eliminating barriers to effective cooperation with tribes, and its duty to respect Native Alaskan tribes as sovereigns.
In short, there are ample legal and policy reasons for EPA and the courts to recognize Alaskan Native tribes as natural resource trustees.
This paper derives from an issue presented to me in the fall of 1999 while
serving as a legal extern at the Office of Regional Counsel for EPA,
Region 10 in
When the Exxon Valdez ran aground on
42 U.S.C. § 9607(f) (1994 &
 42 U.S.C. § 9607(f)(1) (CERCLA); 33 U.S.C. § 2607(a) (OPA).
 42 U.S.C. § 9601(16) (defining “natural resources” under CERCLA); 33 U.S.C. § 2701(20) (same under OPA).
 42 U.S.C. § 9607(f) (CERCLA); 33 U.S.C. § 2706(a)‑(b) (OPA).
 42 U.S.C. § 9601(16) (CERCLA); 33 U.S.C. § 2706(b)(3) (OPA).
 See Ohio v. Dept. of Interior, 880 F.3d 432, 460 (D.C. Cir. 1989) (construing 42 U.S.C. § 9607(f) as excluding purely private property but potentially including “certain types of governmental . . . interests in privately‑owned property”).
 See e.g. Reynolds Metal Co. v.
 “Indian Country” is a term of art in federal Indian law, which is generally identified under 18 U.S.C. § 1151 (1994). See infra note 108.
CERCLA defines “Indian Tribe” as “any Indian tribe, band, nation or other
organized group or community, including any Alaska Native village but not including any
definition also excludes Alaska Native regional or village corporations, but
adds the requirement that an Indian tribe be “recognized as eligible for the
special programs and services provided by the
The second requirement, that a tribe exercise governmental authority over lands belonging to or controlled by the tribe, creates a far more significant hurdle for assertions of trustee status over oil spills after the Supreme Court’s determination that Alaskan Native tribes do not exercise jurisdiction over Indian Country. Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1988); [hereinafter Venetie]. See also infra text accompanying note 16, and infra notes 106‑114 and accompanying text.
 See Venetie, 522
 43 U.S.C. §§ 1601‑28 (1994 & Supp. IV 1998).
 See 33 U.S.C. § 2701(15) (defining Indian tribe as “not including any Alaska Native regional or village corporation” for purposes of OPA); 42 U.S.C. § 9601(36) (same for purposes of CERCLA).
 16 U.S.C. §§ 3101‑3133 (1994).
 See infra Part IV.
 42 U.S.C. § 9607(f)(2); 33 U.S.C. § 2706(c).
Office of Emergency and Remedial Response, Environmental Protection Agency, Natural
Resource Damages: A Primer, (last updated
 42 U.S.C. § 9607(a)(C); 33 U.S.C. § 2706(a).
 NRD Primer, supra note 22.
 42 U.S.C. § 9607(f)(1); 33 U.S.C. § 2706(f). Under CERCLA, the sum recoverable is not limited to the cost of restoration, replacement, or acquisition of equivalent resources. 42 U.S.C. § 9607(f)(1).
Under both CERCLA and OPA, EPA exercises this authority for contamination on
land and inland waters. For releases and
contamination involving the coastal zone, tidal waters, deep water ports and
 42 U.S.C. § 9604(b)(2).
 These informational obligations are imposed by the National Contingency Plan at 40 C.F.R. Part 300 (1999).
 40 C.F.R.§ 300.160(a)(3).
 40 C.F.R.§ 300.615(d)(3).
 33 U.S.C. § 2711.
 Timothy Fields, Office of Solid Waste and Emergency Response, Environmental Protection Agency, CERCLA Coordination with Natural Resource Trustees, OSWER Directive No. 9200.4‑22A, at 4 (Jul. 31, 1997) (on file with author).
Office of Emergency and Remedial Response, Environmental Protection Agency, Natural
Resource Trustees, www.epa.gov/oerrpage/superfund/programs/nrd/trustees.htm
Office of Emergency and Remedial Response, Environmental Protection Agency, EPA’s
Notification and Coordination Activities www.epa.gov/oerrpage/superfund/programs/nrd/n_and_c.htm
 Natural Resource Trustees, supra note 34.
 Hazardous Site Evaluation Division, Environmental Protection Agency, The Role of Natural Resource Trustees in the Superfund Process, ECO Update, March 1992, at 7 [hereinafter ECO Update].
 See NRD Primer, supra note 22.
 See generally
 ECO Update, supra note 38 at 11.
 Fox, supra note 22 at 523 (citing numerous academic articles drawing comparisons between common law trust doctrine and natural resource liability under CERCA); Thomas L. Eggert and Kathleen A. Chorostecki, Rusty Trustees and the Lost Pots of Gold: Natural Resource Damage Trustee Coordination Under the Oil Pollution Act, 45 Baylor L. Rev. 291, 298 (comparing natural resource damage provisions in CERCLA and OPA and concluding that both may incorporate the general principles of the public trust doctrine).
 Fox, supra note 22 at 524.
 S. Rep. No. 848, 96th Cong., 2d Sess. 84 (1980).
 See NRD Primer, supra note 22.
 40 C.F.R. Part 300.
42 U.S.C. § 9607(f)(2)(A) and
 ECO Update, supra note 38, at 2. See 42 U.S.C. § 9607(f)(2)(A) and 33 U.S.C. § 2706(b)(2).
 42 U.S.C. § 9607(f)(2)(B).
 33 U.S.C. § 2702(a) and (b)(2)(A).
 33 U.S.C. § 2706(a)(3).
 33 U.S.C. § 2706(b)(4) (designation by governing body of tribe of tribal official “who may act on behalf of the tribe or its members as trustee for natural resources”); Id. at § 2706(c)(3) (Tribal trustee “shall assess natural resource damages . . . for the natural resources under their trusteeship . . . and shall develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the natural resources under their trusteeship.”).
 42 U.S.C. § 9607(f)(1)
 See 40 C.F.R. § 300.5 (1999).
 See 40 C.F.R. § 300.610 (1999).
 40 C.F.R. § 300.615 (1999) (outlining authority and responsibilities of trustees without distinction between state, federal or tribal authority).
 See Eggert, et. al, supra note 44, at 298‑99; Marten, et. al, supra note 43, at 672.
 42 U.S.C. § 9601(16) (CERCLA); 33 U.S.C. § 2701(20).
 880 F.2d 432 (D.C. Cir 1989).
Alaska v. Native Village of Venetie Tribal Gov’t,
 43 U.S.C. §§ 1601‑28 (1994 & Supp. IV 1998). I will refer in this paper to lands held in fee by Native Regional and Village Corporations as “ANCSA lands.”
 See 33 U.S.C. § 2701(15) (defining Indian tribe as “not including any Alaska Native regional or village corporation” for purposes of OPA); 42 U.S.C. § 9601(36) (same for purposes of CERCLA).
Montana v. United States, 450
See e.g. Native Village of Stevens v. Alaska Management and Planning,
 Bureau of Indian Affairs, Department of Interior, Indian Entities Recognized and Eligible to Receive Services form the United States Bureau of Indian Affairs, [hereinafter 1993 List] 58 Fed. Reg. 54364, 54365‑66 (1993).
See Eric Smith and Mary Kancewick, The Tribal Status of Alaska Natives, 61 U.
Colo. L. Rev. 455 (1990); Bureau of Indian Affairs, Department of
Interior, Indian Entities Recognized and Eligible to Receive Services From the
United States Bureau of Indian Affairs, 63 Fed. Reg. 71941
(Dec. 30, 1998) (listing federally recognized tribes including Alaska
Natives tribes); John v. Baker,
982 P.2d 738, 749‑50 (Alaska 1999) (deferring to the U.S.
Department of the Interior’s determination that Alaskan Native tribes
recognized by the federal government are sovereign entities who “possess
governmental authority and autonomy”); Native
Village of Noatak v. Hoffman (finding that Alaska
Native villages organized under the Indian Reorganization Act or listed in
ANCSA have tribal status as a matter of law) rev’d on other grounds sub. nom.
 Stevens Village, 757 P.2d at 40 (citing legislative history of the Indian Reorganization Act at H.R. Rep. No. 2244, 74th Cong., 2nd Sess. 1‑2 (1936).
 Smith, et. al, supra note 76 at 483.
 Id. at 483, citing Montoya v. United States, 180 U.S. 261 (1901) (“By a ‘tribe’ we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill‑defined territory.”). Smith, et. al, contrast this concept of a historic tribes with the related label of legal tribe. The former refers to the ethnologic, historical, or ordinary use of the word, while the later refers to the status of the tribe under federal law.
Smith, et. al, warn of making too much of this distinction, however, noting that while “there have been historical tribes that have lost their legal status through termination, and there are tribes with legal status what were never historical tribes . . . [the distinction] can also be misleading, for it can obscure the fact that a historical tribe is a legal tribe unless its legal status is terminated by Congress or it voluntarily relinquishes its tribal status.” Smith, et. al, supra note 74 at 473.
 Smith, et. al, supra note 76 at 484.
 Id., citing Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land 138 (G.P.O. 1968).
 Smith, et. al, supra note 74 at 496.
See Cherokee Nation v.
See Treaty of Cession of
[T]he inhabitants of the ceded
territory . . . may return to Russia within three years; but if
they should prefer to remain in the ceded territory, they, with the exception
of the uncivilized native tribes, shall be admitted to the enjoyment of all the
rights, advantages and immunities of citizens of the United States, and shall
be maintained and protected in the free enjoyment of their liberty, property,
and religion. The uncivilized tribes
will be subject to such laws and regulations as the
15 Stat. 539,
 1993 List, supra note 75 at 54,366. The Federally Recognized Tribe List Act requires the Department of the Interior to publish such a list annually. 25 U.S.C. § 479a‑1 (1994). The findings section of this Act explained the import of inclusion on the list of federally recognized tribes:
. . . the Constitution, as interpreted
by Federal case law, invests Congress with plenary authority over Indian
Affairs; ancillary to that authority, the
Pub. L. 103‑454,
 58 Fed. Reg. 54,365.