Renewals Of Tribal Treaty Rights, Sacred Sites MOUs Announced; Stresses Early Consideration Of Treaty Rights In Decision-Making

Alongside national tribal leaders and federal partners at this week’s 2021 White House Tribal Nations Summit, the Environmental Protection Agency announced renewals of the Tribal Treaty Rights Memorandum of Understanding and the Sacred Sites Memorandum of Understanding.

“I am honored that EPA, along with 16 of its federal partners, have signed on to renew the 2016 Tribal Treaty Rights Memorandum of Understanding,” said EPA Administrator Michael S. Regan. “The revised MOU strongly reaffirms the federal government’s duty to protect on and off reservation treaty, reserved rights and other similar rights, such as rights guaranteed by federal statute.”

This MOU calls for early consideration of Tribal treaty and reserved rights in agency decision-making, for Tribal treaty and reserved rights to be integrated in agencies’ ongoing work to address the climate crisis, and for strengthening agency tribal consultation policies.

The revised Tribal Treaty Rights MOU replaces the current MOU, which is set to expire in December 2021. This revised MOU will expire in 2031.

The 22-page MOU says, “Treaty-protected rights to use of and access to natural and cultural resources are an intrinsic part of tribal life and are of deep cultural, economic, and subsistence importance to tribes. Many treaties protect not only the right to access natural resources, such as fisheries, but also protect the resource itself from significant degradation. Under the U.S. Constitution, treaties are part of

the supreme law of the land, with the same legal force and effect as federal statutes. Pursuant to this principle, and its trust relationship with federally recognized tribes, the United States has an obligation to honor the rights reserved through treaties, including rights to both on and, where applicable, off-reservation resources, and to ensure that its actions are consistent with those rights and their attendant protections. Accordingly. the Parties recognize the need to consider and account for the effects of their actions on the habitats that support treaty-protected rights,

including how those habitats will be impacted by climate change.

“Tribes, Alaskan Natives and Native Hawaiians that do not have formal treaties may also have rights that should be considered in federal decision-making and regulatory processes addressed by Parties under the framework of this MOU.”

The MOU notes that from 1778 to 1871, “the United States’ relations with American Indian tribes were defined and conducted largely through treaty-making. Through these treaties, Indian tribes ceded land and other natural and cultural resources to the United States, while retaining all rights not expressly granted. The United States Supreme Court has affirmed this principle of reserved rights, explaining that treaties are “not a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted.” United States v. Winans, I98 U.S. 371 , 38 I ( 1905). Many of these treaties guaranteed the signatory tribes a unique set of rights both on and, where applicable, off reservation, including rights to health care, education and rights reserved by tribes relating to natural resources, such as the right to hunt, fish , and gather on land ceded by tribes and on reservation land retained by tribes.”

Also highlighted at today’s panel discussion was the expansion of signatories and renewal of the Sacred Sites MOU, of which EPA is now a signatory. This MOU is to protect tribal sacred places, and allows signatories to leverage each other’s resources, expertise, and products. This MOU was first executed in 2012, renewed in 2016, and now expires in 2024.

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