Skip to content

Trust and Trash

We have 90 to 95 percent unemployment on the reservation. We have people on fixed incomes, and . . . [at] the furthest point from the landfill, it would cost them $90 a month to haul their trash. If a man is receiving $300 a month, and he is required to pay . . . to haul his trash, what decision is he going to make? Is he going to buy his family bread, or haul trash? That’s the decision we have to make.
Cleve Neiss, Rosebud Sioux Tribe[1]

Introduction

[The] EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection, is misguided.

[The] EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection, is misguided.
Photo by S. McDevitt.

Imagine a Native American nation situated on less than 1,000 acres in a rural area. Seventy percent of the hundred tribal members living on the land are unemployed; their primary income sources are government assistance and small amounts of revenue from tribally-owned businesses. The waste hauler for the nearby county refuses to service tribal land. With self-haul distances of eighty miles to the nearest transfer station, and many members without easy access to a car, the tribal members have little option but to dump their trash in the woods.

Recognizing the threat to health and the environment that the accumulating trash piles are causing, the tribal government approaches the United States Environmental Protection Agency (EPA) for funds to clean up the trash and to start a tribally-run trash collection program. EPA grants the tribe $100,000 to clean up the five dump sites and $100,000 for a “pilot” collection and recycling program.

A year later the dump sites are cleaned up and the collection program is used by all members of the tribe. But as the grant period draws to a close, a problem arises: although the collection program brings in modest amounts of revenue from the tribal members themselves, the program is not self-sustaining. Rising fuel costs, long haul distances, and lack of economies of scale mean that without raising collection rates beyond what members would be able to pay, the program is doomed. The EPA grant project officer apologizes to the tribe. Although EPA can continue to give the tribe grants for dump cleanup, beyond pilot projects EPA cannot fund ongoing waste collection for tribes. The tribe is on its own.

This article will argue that EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection,[2] is misguided.[3] This article will show that, at least for some tribes, the result of paying for dump cleanup rather than trash collection is less desirable from both an environmental and an economic perspective. Part I of this article will examine the unique legal position of small tribes and why funding ongoing collection may be the most environmentally sustainable solution. Part II will evaluate the costs to EPA of cleaning up dump sites on tribal land against the costs of strategically funding ongoing solid waste collection for small tribes. Part III will evaluate the potential reasons behind EPA’s reluctance to pay for ongoing collection. Finally, Part IV will offer an alternative funding model.

I. Background

There are 336 federally-recognized tribes in the continental United States, speckled across the country on approximately 326 tribal land areas administered as federal Indian reservations. Approximately 87,000 square miles of land are held in trust by the United States government for tribes, and approximately 15,600 square miles of individually-owned “allotted” lands are held in trust for allottees and their heirs.[4] If all these tribal lands were combined, the size would be slightly larger than the state of Oregon.[5]

Although there are a handful of large reservations, about two-thirds are less than fifty square miles each.[6] Many reservations are less than two square miles each.[7] Every tribe, whatever the size, has the same sovereign status and right to self-government. The relationship between each tribe and the United States is roughly one between sovereigns—a “government-to-government” relationship. In addition, the “federal Indian trust responsibility” binds the United States to protect tribal treaty rights, lands, and resources. The relationship between tribes and states, on the other hand, is of independent sovereigns. Tribes have the authority to regulate activities on their land independent from state government control, and states generally do not have the authority to enforce state law on tribal land.[8]

The history of the federal government’s relationship to Native American tribes is long, convoluted, and troubled, oscillating between periods of relative enlightenment and periods when tribal members were forced into assimilation and tribal lands were broken up and sold.[9] In Johnson v. M’Intosh and the cases that followed, the Court set out a basic dichotomy of federal Indian policy: tribes are to have sovereign power within their borders, but the United States “has charged itself with moral obligations of the highest responsibility and trust” to the tribes.[10]

The shadows of the past remain today. Tribal lands are highly fragmented,[11] tribal languages and customs have been lost,[12] and the number of tribal members and the amount of tribal land is a small fraction of what it once was.[13] The parcels of tribal land remaining are often those that white settlers ignored; they tend to be arid or semi-arid areas far from important urban economic centers, with little potential for agriculture, pastureland, or economic development.[14] Even in light of progress made in the self-determination era, and even though some tribes have had success in tribal gaming,[15] today Native Americans are among the poorest people in America, with 39.4% below the poverty line in 2000 and an average of 21.9% unemployment on reservation lands.[16] As a consequence of poverty on tribal lands, in 2000 almost twelve percent of houses on reservations lacked indoor plumbing—more than twice the national average—and there are fewer Internet connections, telephones, and roads on tribal lands than elsewhere.[17]

A. EPA’s Role

EPA is the federal agency responsible, in concert with the tribes, for ensuring that federal environmental laws are carried out on tribal lands and that the tribal environment is not degraded. Although federal statutes are in effect on tribal lands and EPA maintains “final authority for decisions affecting human health and the environment in any particular instance,”[18] like states, tribes have day-to-day oversight and control and can set standards more stringent than the federal standards.

EPA is guided by its 1984 Indian Policy, an “unparalleled endorsement of tribal self-determination” and “one of the strongest policy statements endorsing tribal self-determination ever made by a federal agency.”[19] Reaffirmed by Administrator Jackson in 2009 and consistent with President Obama’s Executive Order on government-to-government relations with tribes,[20] the Policy continues to hold EPA to a “government-to-government” relationship when working to “protect the land, air, and water in Indian country.”[21]

To achieve these goals, EPA’s strategy has been to provide funding through the Indian Environmental General Assistance Program (GAP).[22] The GAP program provides funding in the form of “GAP grants” to pay for an environmental protection program for each tribe. To address illegal dumping on tribal lands, EPA provides funding through the GAP program, as well as through the “Tribal Solid Waste Management Assistance Project,”[23] for solid waste management planning and the cleanup of illegal dump sites. EPA explicitly will not, however, fund “long-term, on-going operation and maintenance of solid waste collection and recycling facilities.”[24]

Across all environmental media, GAP grants are not allowed to be used for ongoing programs. For example, although GAP will pay for basic air pollution training and for a study to determine the need for a longer-term air monitoring program, GAP funding may not be used to fund air monitoring activities on a long term basis, as that would “be considered ‘program implementation,’ which is not the focus of GAP funding.”[25] However, at least for air and water issues, once ongoing monitoring or program implementation is deemed necessary, a tribe can apply for other EPA grants to implement the ongoing program. For example, Clean Air Act Section 103 funding is available for long-term air projects,[26] and Clean Water Act Section 319 funding is available for implementing nonpoint source pollution control programs.[27] In contrast, similar funding for ongoing waste management is not available through EPA’s supplemental tribal waste management grant program, the Tribal Solid Waste Management Assistance Project, the goals of which are almost identical to GAP’s: to provide funding to tribes in order to develop solid waste management plans, assess and close illegal dump sites, and develop codes and ordinances against illegal dumping.

B. The nature of the problem

1. The nature of the environmental problem on tribal land

As of 1998, there were 1,104 open dumps on Indian lands; however, there is reason to believe that the number today is much higher.[28] These sites range from small piles of a few trash bags on the side of a road[29] to a dump on the Torres Martinez tribe’s land (one of 26 on the tribe’s land) which, until it was cleaned up in 2007 at a cost of $1.75 million, contained 400,000 cubic yards of waste and was 30 feet high.[30] Open dumping has been identified as being “among the most serious threats to public health and the environment” on tribal land.[31]

The Los Angeles Times’ description of the “AuClair dump site,” on the Torrez Martinez tribe’s land, describes the worst of illegal dumping on tribal land.

[The] site had it all. Fires routinely sent poisons into the air; more than 34,000 square feet of arsenic and chromium ash littered the place. Transients also lived there; drug abuse was rife, and there was at least one killing, say police and the EPA. AuClair’s biggest mistake was burning thousands of toxic wooden grape stakes. “How could we have known grape stakes were treated with arsenic and chromium?” he asked. “There was no sign saying, ‘This is hazardous to your health.’” . . . Still, the site is small compared with other illegal dumps on the reservation.[32]

It is not only extreme sites that pose risks. The dumps often contain hazardous materials, such as lead acid batteries and discarded household chemicals, which can leach into the soil and ground water. Dumps set on fire can release dioxins and other toxic chemicals and can aggravate respiratory problems like asthma.[33] Rodents and insects attracted to the sites pose additional health risks. The dump sites may attract children, who are vulnerable to physical hazards present in piles of trash such as needles, protruding nails, and sharp edges.[34] Finally, because illegal dumping can become a magnet for more illegal dumping and other criminal activities, dumping may deter economic development on tribal land, reinforcing the original problem.[35]

2. The difficulty in preventing dumping on tribal land

Part of the difficulty of dealing with illegal dumping on tribal land is that, in absence of ordinances prohibiting it, dumping is not exactly “illegal.” Although the Resource Conservation and Recovery Act (RCRA) is self-implementing on tribal land, and illegal dumping is technically banned by RCRA under section 4005(a), to be enforced except by citizen suit[36] or by EPA under a finding of “imminent and substantial endangerment,”[37] the tribal regulatory authority must enact a code or ordinance prohibiting illegal dumping and set up a system to enforce the code.[38] For small tribes without codes, or without ability to enforce those codes because of lack of tribal police or court systems, the result is that dumping is hard to prevent and even harder to punish.

In general, as with states, if a tribe is not able to implement delegable programs, EPA is the responsible implementor. But in practice, EPA is not in a position to enter 326 tribal areas to run solid waste programs.[39] County programs often have the infrastructure to manage and enforce illegal dumping on the local level. But without a tribe’s approval, counties cannot enforce their ordinances on tribal land, and they are not responsible for solid waste management on tribal land.[40] This quandary presents a difficult regulatory gap.

Developing an illegal dumping regulatory scheme is no small task, and small tribes especially may not have the economies of scale to make it worthwhile. The tribe would first need to write a code prohibiting dumping, which would likely require legal assistance. Then the tribe would need to establish a system of enforcement. This would require at least one employee to physically dig through piles of waste looking for hints of who dumped it, or for someone to monitor areas with frequent dumping. Finally, the tribe would need a system of adjudication. This could be as informal as designating the tribal council as arbitrators, or as complicated as establishing a tribal court system or working with a group of tribes to establish an intertribal court.[41] For small tribes, where illegal dumping may be the least of the tribe’s regulatory worries, setting up a regulatory system to address illegal dumping may not be feasible.[42]

Finally, and most importantly, preventing illegal dumping can be difficult without addressing the underlying reasons for the dumping. The reasons for illegal dumping can be as varied as the sources. Although some illegal dumping may come from construction and demolition contractors or other businesses, illegal dumping most often occurs in low-income and rural areas where trash collection is unavailable or unaffordable, which is where most tribes are. Poorer members of tribes are often unable to afford proper trash disposal, especially where self-haul distances are long.[43]

II. Why Paying for Trash Collection is Environmentally Sustainable and in EPA’s Interest

A. Paying for collection is in accord with EPA’s Indian Policy and trust responsibility

The reality of illegal dumping on tribal land militates for a different strategy than simply cleaning up dumps and expecting all tribes to create sustainable enforcement programs. The fact that many tribal members are living below poverty levels and residing in rural areas where trash collection may be unavailable or unaffordable means that illegal dumping likely comes from members themselves. And the substantial legal and economic barriers to developing enforcement programs, especially for small tribes, means that illegal dumping is difficult, if not impossible, to prevent and enforce against. If dumping comes from tribal members and enforcement is an unlikely option, then the most effective solution is for EPA to pay for collection.

Providing more flexibility in EPA funding for tribes to allow EPA to fund ongoing collection is in the agency’s interest for two reasons: 1) it is in accord with EPA’s Indian Policy and the Indian Self-Determination Act and 2) it increases the ability of the federal government to fulfill its trust responsibility.

First, increasing flexibility in EPA grant programs for tribes to elect the optimal solution for the tribe promotes the goals of EPA’s Indian Policy and the Indian Self-Determination Act; EPA’s goal to recognize tribal governments as the primary parties for managing tribal environments is undermined by grant policies that force tribes to choose one environmental solution (closing open dumps) over another environmental solution (providing trash collection). And EPA’s goal to assure tribal compliance with environmental statutes would surely be promoted by increased ability to prevent illegal dumping. Likewise, implementation of the Indian Self-Determination Act’s self-determination policy must be questioned “[w]hen problems, the methods for their solution, and the standards to evaluate success are defined from the outside”[44] and not by tribes themselves.

Second, giving the federal government flexibility to most effectively address an environmental problem on tribal land helps fulfill the government’s tribal trust responsibility. In general, the tribal trust responsibility requires the government to protect tribal lands and resources. Although the Supreme Court has rarely held that this duty creates a legal obligation to tribes,[45] the philosophy as animated in Presidential Executive Orders[46] and EPA’s Indian Policy governs federal government and EPA decision-making. Indeed, implicit in the provision of funding for dump cleanup is that Congress views addressing the problem of degradation of the tribal environment as within the realm of its trust responsibility.

Mary Wood has argued that with regards to environmental protection on tribal land, the trust duty should encompass three distinct obligations: 1) to “achieve a degree of protection that is appropriate to protect the tribe’s way of life on the reservation, even if this level of protection exceeds what is otherwise mandated by statutory law;” 2) “to prevent environmental threats from developing into actual harm;” and 3) “to restore reservation environments that have been adversely affected by pollution due to the government’s neglect.”[47] Wood’s analysis that an environmental protection duty should extend to preventing environmental threats from developing into actual harm supports the idea that EPA should provide funding for dump prevention, not just cleanup. By preventing dumping from occurring in the first place, EPA would more effectively fulfill a duty to prevent degradation of tribal lands than by waiting until the land is degraded to act.

B. Paying for collection may not be more expensive than paying for cleanup

Not only may funding trash collection lead to sustainable prevention of illegal dumping, but it may also be less expensive, even on a continuing basis, than EPA’s current approach of paying to clean up illegal dumps after they occur. Take the example of a sixty-person tribe in a rural area, either currently with no trash collection service, or where the majority of members are unable to pay for it. If each member produces the national average amount of solid waste a day, 4.6 pounds,[48] then in the course of a year the tribe collectively produces 99,360 pounds of trash, or about fifty tons. Although the cost for weekly trash collection varies greatly around the country, rates between twelve and twenty dollars a month, per household, are about average.[49] This means that funding trash collection for our hypothetical tribe would cost between $8,640 and $14,400 a year.

Funding annual dump cleanup for a fifty-ton dump is likely to cost a comparable amount, if not more. For example, using EPA’s Illegal Dumping Economic Assessment (IDEA) Cost Estimating Model, the estimated cost of cleaning up a fifty-ton dump, re-grading and re-seeding the dump area, and installing sixty feet of fencing to prevent further dumping in the area, is $12,300.[50]

This number is likely conservative. It assumes there are no bulky or difficult-to-remove wastes, like refrigerators or tires, and that the dump is relatively easy to clean up—the dump is not buried in the woods, at the bottom of a cliff, or covered in brush.[51] It does not include extra administrative costs of writing a grant to pay for the dump cleanup, or the administrative costs of overseeing the dump cleanup itself. Finally, it does not account for less easily monetizable costs, like harm to the environment, human health, and property values.[52]

The point of comparing the costs of funding waste collection to the costs of funding illegal dump cleanup is not to suggest that EPA should conduct such cost comparisons to determine whether the agency should fund collection or cleanup for a given tribe. Even if it turned out that funding trash collection would be more expensive than dump cleanup, continually cleaning up dump sites is not exactly an environmentally friendly or sustainable solution. The point is merely to show that, given a situation where the illegal dumping is coming from tribal members and there are significant barriers for the tribe to fund collection and/or to prevent illegal dumping, stepping in and funding collection may be cost-effective.

It may also be true that more funding is needed for solid waste management on tribal lands in general, and that truly fulfilling the tribal trust responsibility requires Congress to designate appropriate funding for the task. The Indian Health Service estimated it would cost $126 million to clean up the 1,104 open dumps identified as of 1998. But as of 2005, only slightly more than ten million dollars had actually been spent on cleanup.[53] It is a bleak reality that many tribes are located in low-income, rural areas. Congress should not ignore the unique problems caused by whittling once-great tribal nations into checkerboarded lands, forcing them into the far corners of rural areas, and then deciding that tribal self-determination and sovereign status should govern. Rather, it has a duty to provide funding adequate so that, at the very least, these lands might stay free from trash accumulation.

III. EPA’s Reasoning—Why EPA Might Focus Only on Dump Cleanup

If it is largely unrealistic, given the hurdles that tribes face in preventing and enforcing against illegal dumping, to assume all tribes can develop sustainable solid waste management programs, and if paying for ongoing trash collection can cost about the same as cleaning up dumps, why doesn’t EPA fund ongoing collection programs? Two possible reasons exist: 1) funding ongoing solid waste programs does not promote program sustainability; and 2) by funding dump cleanup, EPA can more tangibly show progress in Indian country.

A. Program Sustainability

Although EPA pays for ongoing environmental projects for tribes in other environmental areas, similar funding for ongoing waste management is not available through EPA’s supplemental tribal waste management grant program, the Tribal Solid Waste Management Assistance Project. The logic behind EPA’s more limited funding scheme for solid waste is either that 1) funding solid waste planning and dump cleanup is the best way for a tribe to become sustainable; 2) funding trash collection is inherently unsustainable; 3) if long-term solid waste projects are needed, such as ongoing collection, a tribe should be able to find outside funding; or 4) funding ongoing collection will disincentivize tribes to become sustainable in the absence of EPA funding.

This logic is flawed. First, for a small tribe the best solid waste management system may not involve a lot of plan and code writing. “EPA . . . tends to view the regulatory aspect of municipal [solid waste management] as being limited to the development of the municipal [solid waste management] plan and the development of codes and regulations, as though this were somehow miraculously self-enforcing.” [54] EPA might spend $50,000 to pay for the development of an illegal dumping enforcement code, but if this code sits on the shelf because there is no tribal system in place to enforce the code, this money has been wasted. If what a small tribe needs to prevent illegal dumping is merely a contract with a local waste hauler, a solid waste management plan and illegal dumping ordinances worthy of a state solid waste program are overkill.

Second, it is a false dichotomy to view dump cleanup as sustainable, but trash collection as unsustainable. To EPA, it may be that paying for day-to-day trash collection does not really seem sustainable; unlike ongoing air and water programs, which one day might lead to a decrease in air or water pollution, ongoing trash pickup, once funded by EPA, will never end. This is in contrast to the apparent sustainability of dump cleanup, where ideally, once a dump is cleaned up, it stays cleaned up. This logic breaks down, however, in cases where EPA pays for dump cleanup for tribes where it is unrealistic to expect that dumping will cease; in this case EPA could end up spending the equivalent amount of money it might have spent on collection on continual dump cleanup, without making any real environmental progress.

EPA should think of ongoing trash collection in the same light as ongoing water quality monitoring (which EPA funds through Clean Water Act Section 106 Grants)[55] or the construction of wastewater treatment (which EPA funds through the Clean Water Indian Set-Aside Grant Program).[56] Funding ongoing water monitoring has no obvious endpoint to funding, yet it is necessary to protect the tribal environment. Constructing wastewater treatment facilities is a sustainable solution to wastewater management, even though EPA could equally elect to clean up wastewater contamination after it happens. Similarly to the logic behind these programs, EPA should think of funding ongoing collection as necessary in some cases to protect the tribal environment and as preferable to the alternative of cleaning up dumps after they happen.

Third, the idea that a tribe will be able to find funding outside of EPA to implement ongoing solid waste management may be wishful thinking. Although some tribal councils will be able to use tribal funds or gaming revenue to start recycling centers and collection programs, these tribes are exceptional cases.[57] And while many states fund their illegal dumping prevention and cleanup programs with revenue received from tipping fees at state landfills or revenue from bottle bills,[58] since few tribes run commercial landfills and none have bottle bill programs, these common methods of revenue generation for dump prevention are unavailable.

Finally, there is a risk that by funding ongoing trash collection, EPA will disincentivize tribes to become sustainable in the absence of such funding. Even if the tribal government or tribal members at a future date found themselves easily able to pay for collection, they may at that point be unwilling to. Why pay for a service you have previously gotten for free? This problem may be solvable through stringent grant conditions and project review. The grant application might require a detailed analysis of the tribe and tribal members’ ability to pay for collection. There might also be strict requirements for grant renewal, including a demonstration that economic conditions have not changed for the tribe.

If EPA focuses on the goal of sustainability in terms of sustainable dump prevention, then funding ongoing solid waste activities like trash collection is not as odious. Rather, it is one option, funded along with solid waste management plans and codes, that may help tribes become sustainable. Where dump sites crop up year after year, and the circumstances of the tribe make solid waste enforcement and prevention next to impossible without paying for trash collection, EPA should recognize that helping to fund collection is necessary for that tribe to create a sustainable solid waste management program.

B. Showing Progress

Counting dumps cleaned up each year in each region of EPA is an easy method of reporting progress. So is counting new solid waste management plans written by tribes. As a result the Office of Resource Conservation and Recovery (ORCR), EPA’s office that provides solid waste funding to tribes, requires EPA regions to report the number of tribes covered by solid waste management plans and the number of dumps closed each year.[59] ORCR also sets goals for the number of plans to be completed and dumps to be closed by region.

This means that even if EPA regions had the ability to use the limited national funding they receive to fund ongoing collection programs, the regions would be loath to allocate funding away from areas that help meet national targets and goals.

On one hand, having easily definable national targets forces regions to be accountable for where money is spent, and if the national goals are well thought out, measurement helps move the regions toward national goals. On the other hand, that measurement undermines EPA regions’ abilities to tailor their funding approaches to each tribe’s needs. It also incentivizes EPA regions to fund the development of unnecessary solid waste management plans and to fund as many small and inexpensive cleanups as possible so as to meet numeric targets rather than to fund cleanup sites in order of priority based on dump site risk to public health.

There may be no easy proxy for long-term solid waste sustainability that can be measured and reported on a quarterly basis. But re-thinking EPA’s system of measurement of tribal solid waste progress is necessary if EPA’s goal is long-term sustainability. Perhaps a metric could be based on surveying tribes each year as to how much garbage is being dumped on the land and whether that amount has gone up or down in the past year. This would incentivize EPA to pick the most cost-effective and long-term method for preventing dumping, rather than just pay for a dump site cleanup and move on. Or perhaps the metric could report the number of tribes where every member has access to waste collection and/or recycling services. This would incentivize EPA to spend the most resources for the most economically- and geographically-disadvantaged tribes. Whatever the measurement system chosen, it should reflect goals of long-term sustainability, not just what progress points are most easily quantifiable.

IV. Alternative Funding Proposal

To best fulfill the goals of its Indian Policy, EPA needs flexibility to grant funding to pay for ongoing waste collection for tribes. Flexibility in funding is the best way to recognize tribal governments as the primary parties for managing the environment. At the same time, to the extent that paying for ongoing waste collection decreases illegal dumping, flexibility helps assure compliance with environmental statutes and helps the federal government fulfill its tribal trust obligation.

This increased flexibility requires no change in EPA statutory or regulatory language, and only a relatively minor change in grant language. EPA’s regulations for the GAP program specifically permit implementation of solid waste programs.[60] It is only the terms of the grant application that prohibit the use of funds for ongoing waste collection. To adopt this alternative proposal, the terms of either the GAP grant program or the Tribal Solid Waste Management Assistance Project grant program should be changed so that proposals for ongoing collection are allowed. [61] Because the circumstances of each tribe, as well as the reasons for illegal dumping, vary dramatically between tribes, it should be up to each tribe to determine how funding would best be used when the tribe applies for EPA grants, and for EPA grant project officers to make reasoned judgments about how to distribute limited funding.

Funding collection is not appropriate in every case. When illegal dumping is coming from off-tribal land, funding collection will do little good. Nor does funding collection make sense if the tribe or tribal members already pay, or have the ability to pay, for regular collection; this would be a waste of EPA’s limited funds, and a decrease in illegal dumping may be better achieved through a tribal educational campaign.

However, paying for trash collection may be the most economical, sustainable, and environmentally friendly solution to illegal dumping for tribes where the majority of illegal dumping comes from tribal members, there is no illegal dumping enforcement system and developing such a system may not be reasonable, and/or the majority of members are low-income or face significant barriers to access to waste collection. To ensure that funding for continuous collection goes only to tribes where such funding would make a difference, EPA could require through its grant programs that the tribe first complete an analysis of 1) where the illegal dumping is coming from; 2) whether creating an illegal dumping prevention and enforcement program is feasible; and 3) if illegal dumping is coming predominantly from tribal members, what the reasons are. If the tribe shows through its analysis that illegal dumping is caused predominantly because members and the tribe are unable to pay for collection, EPA should provide funding in the next phase of the grant to cover the costs of waste collection.

This funding for ongoing waste collection should be a backstop, however, and EPA should work with the tribe, as well as other federal and state agencies, to search for other sources of long-term funding and continue to promote creative solutions and cooperation among tribes.[62] In order to ensure that funding for ongoing collection does not disincentivize tribes to find other long-term solutions, grant conditions should be added to make sure ongoing collection is the best use of federal funds. For example, as a grant condition, additional reporting could be required on the effectiveness of ongoing collection in reducing illegal dumping and on attempts to supplement or supplant federal funding with other sources.

To evaluate whether this more flexible approach to funding is effective, EPA should change its program evaluation metrics from recording open dump cleanup and solid waste management plan development to metrics designed to evaluate long-term sustainability. As discussed above, possible metrics could include the number of tribes experiencing a decrease in the amount of illegal dumping each year and/or the number of tribes where every member has access to waste collection services.

Conclusion

Illegal dumping is not just a problem on tribal lands; low-income, rural areas across the nation grapple with the problem. But Native American tribes, especially small tribes, have significant limitations on the solutions available. EPA’s expectation that a small, rural tribe should be able to develop and implement its own illegal dumping enforcement and prevention program may not be realistic. EPA’s use of funds to clean up illegal dump sites in these areas, without meaningful attention and funding to prevent future dumping, is self perpetuating and self defeating. Removing restrictions on funding, and allowing tribes the flexibility to apply funding towards ongoing waste collection, would be better for the environment, be more cost effective, help EPA fulfill the goals of its Indian Policy, and help the federal government best meet its trust obligations to tribes.


* J.D., Harvard Law School, expected 2011. The author wishes to thank Joseph Singer for his guidance and the EPA Region 9 Tribal Solid Waste Team for their advice, data, and suggestions.

[1] Lynn E. Zender, Solid Waste Management on Indian Reservations: Limitations of Conventional Solid Waste Management Engineering 123 (1999) (unpublished Ph.D. dissertation, University of California, Davis) (citing Workshop on Solid Waste Disposal on Indian Lands: Hearings before S. Select Comm. on Indian Affairs, 102nd Cong. 102-72 (1992)), available at http://www.zendergroup.org/diss_contents.htm.

[2] Although this article refers to “solid waste collection” or “trash collection,” it does not mean to suggest that equal, if not greater, emphasis should not be placed on developing recycling and waste reduction programs.

[3] Although the Solid Waste Management Assistance Project is co-funded by the Indian Health Service, the Bureau of Indian Affairs, the Department of Defense, and the Department of Agriculture, and each of these agencies has some role in tribal solid waste management, this article will focus solely on EPA because of EPA’s lead role in providing funding and technical assistance for environmental protection on tribal land.

[4] Bureau of Indian Affairs, Frequently Asked Questions, http://www.bia.gov/FAQs/index.htm (on file with the Harvard Law School Library). There are 565 federally-recognized tribes total, 229 in Alaska.

[5] City-Data.com, Oregon, http://www.city-data.com/city/Oregon.html (on file with the Harvard Law School Library). Oregon is roughly 95,997 square miles.

[6] Klaus Frantz, Indian Reservations in the United States 45 (1999).

[7] Gregory Campbell, Indian Reservations, Dictionary of American History (2003), http://www.encyclopedia.com/doc/1G2-3401802046.html (on file with the Harvard Law School Library).

[8] Although a “government-to-government” relationship exists in theory, tribal land is subject to all federal laws, and tribal members living off reservations are subject to all state laws.

[9] See generally Cohen’s Handbook of Federal Indian Law (Nell J. Newton, et al. eds., 2005).

[10] Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942). See also Johnson v. M’Intosh, 21 U.S 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 10 (1831).

[11] Cohen’s Handbook of Federal Indian Law, supra note 9.

[12] See, e.g., John H. Peacock, Jr., Lamenting Language Loss at the Modern Language Association, Am. Indian Q., Winter/Spring 2006, at 138.

[13] Cohen’s Handbook of Federal Indian Law, supra note 9.

[14] Frantz, supra note 6, at 44.

[15] See Jack Utter, American Indians: Answers to Today’s Questions 234 (2001). For example, the 30-member Cabazon tribe operates a successful hotel and casino, and each tribal member is reported to have an annual income of over $500,000. Cabazon’s success is not representative of gaming tribes, however. “For many Indian nations, particularly those far from large population centers from which to draw customers, gaming has made little impact on the problems of persistent poverty.” Harvard Project on Am. Indian Econ. Dev., The State of the Native Nations 117 (2008).

[16] William N. Thompson, Native American Issues 17 (2005).

[17] Id. at 17–18.

[18] James M. Grijalva, The Origins of EPA’s Indian Program, 15 Kan. J.L. & Pub. Pol’y 191, 278 (2006).

[19] Id. at 192, 292; see also U.S. Envtl. Prot. Agency, EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984), available at http://www.epa.gov/indian/pdf/indian-policy-84.pdf.

[20] Memorandum from Barack Obama, President of the U.S., to the Heads of Exec. Dep’ts and Agencies (Nov. 5, 2009), available at http://edocket.access.gpo.gov/2009/pdf/e9-27142.pdf (affirming his commitment to consultation and collaboration with tribal officials).

[21] Memorandum from Lisa P. Jackson, Adm’r, U.S. Envtl. Prot. Agency, to All Envtl. Prot. Agency Employees (Jul. 22, 2009), available at http://www.epa.gov/indian/pdf/reaffirmation-memo-epa-indian-policy-7-22-09.pdf.

[22] American Indian Environmental Office, U.S. Environmental Protection Agency, Indian Environmental General Assistance Program (GAP), http://www.epa.gov/Indian/gap.htm (on file with the Harvard Law School Library).

[23] U.S. Envtl. Prot. Agency, FY 2009 Tribal Solid Waste Management Assistance Project: Overview Section, available at http://www.epa.gov/oswer/docs/grants/09-02.pdf.

[24] Region 9, U.S. Envtl. Prot. Agency, Sample General Assistance Program Activities 2 (2010), available at
http://www.epa.gov/region09/funding/pdfs/tribal-gap/gap2010-attcA-sampleactivities.pdf.

[25] Id. at 4.

[26] Id.

[27] See United States Environmental Protection Agency, Introduction to Tribal Water Pollution Prevention and Control, http://water.epa.gov/polwaste/nps/tribal/tribes2.cfm#AncOverv (on file with the Harvard Law School Library).

[28] Indian Health Service, U.S. Dept. of Health & Human Servs., Status of Open Dumps on Indian Lands 1 (1998), available at http://www.oehe.ihs.gov/Solid_W/1998_ODReport/1998OpenDumpsReport.pdf. EPA has not yet released an updated count.

[29] Zender, supra note 1, at 15.

[30] Jennifer Bowles, Cleanup funds are OK’d for illegal dump on reservation, Press-Enterprise, Nov. 15, 2006, http://www.pe.com/localnews/inland/stories/PE_News_Local_H_dump16.35f77d6.html (on file with the Harvard Law School Library).

[31] S. Rep. No. 103-253, at 1 (1994).

[32] David Kelly, Reservation’s Toxic Dumps a Multilayered Nightmare, L.A. Times, June 2, 2007, at A1.

[33] U.S. Environmental Protection Agency, Backyard Burning, http://www.epa.gov/waste/nonhaz/municipal/backyard/index.htm (on file with the Harvard Law School Library).

[34] Region 5, U.S. Envtl. Prot. Agency, Illegal Dumping Prevention Guidebook (1998), available at http://www.epa.gov/reg5rcra/wptdiv/illegal_dumping/downloads/il-dmpng.pdf.

[35] Id.

[36] EPA has some limited enforcement under Section 7003 for sites posing an “imminent and substantial endangerment” and 4005(c)(2), but it has rarely been used.

[37] Resource Conservation and Recovery Act (RCRA) § 7003, 42 U.S.C § 6973 (2006).

[38] Illegal Dumping Prevention Guidebook, supra note 34, at 5.

[39] There are 565 tribal areas, counting Alaska.

[40] Nor would county involvement likely be desirable from either a tribal or county perspective. Tribes may be disinclined to invite the county onto tribal land, and counties have little incentive to spend county funds on tribal waste management.

[41] Region 9, U.S. Environmental Protection Agency, Solid Waste Management on Tribal Lands, http://www.epa.gov/region9/waste/tribal/solidwastecode.html (on file with the Harvard Law School Library).

[42] See Lauren Wenzel, Environmental Risk in Indian Country 22 (1992) (“For small tribes with limited resources, environmental management means diverting funds from other essential programs. Economies of scale argue against extensive environmental programs for small tribes.”).

[43] Zender, supra note 1, at 123.

[44] Paul H. Stuart, Organizing For Self-Determination: Federal and Tribal Bureaucracies in an Era of Social and Policy Change, in American Indians: Social Justice and Public Policy 83, 95 (Donald E. Green and Thomas V. Tonnesen eds., 1991).

[45] See, e.g., United States v. Navajo Nation, 537 U.S. 488, 506 (2003) (holding that the Nation could not recover compensation for alleged breach of trust).

[46] Exec. Order No. 13,175, 65 C.F.R. 218 at § 2(a) (Nov. 9, 2000) (“Since the formulation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal government has . . . a trust relationship with Indian tribes.”); Memorandum on Tribal Consultation, 74 C.F.R. 215 (Nov. 5, 2009) (affirming President Obama’s commitment to consultation and collaboration pursuant to Executive Order 13175), available at http://edocket.access.gpo.gov/2009/pdf/e9-27142.pdf.

[47] Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 Utah L. Rev. 109, 141–42 (1995); see also William H. Rodgers, Jr., Environmental Law in Indian Country 228–29 (2005) (“Under the Indian trust doctrine the federal government has…a duty to protect against damage or destruction [of the environment].” (quoting White Mountain Apache Tribe v. United States, 11 Cl. Ct. 614, 672 (1987)).

[48] Region 3, U.S. Environmental Protection Agency, Summary of the EPA Municipal Solid Waste Program, http://www.epa.gov/reg3wcmd/solidwastesummary.htm (on file with the Harvard Law School Library).

[49] See Nat’l Solid Waste Mgmt. Ass’n, Residential Trash Collection: An Essential Service at a Bargain Price, available at http://www.environmentalistseveryday.org/docs/research-bulletin/Research-Bulletin-Service-At-A-Bargain.pdf.

[50] U.S. Envtl. Prot. Agency, Illegal Dumping Economic Assessment Cost Estimating Model, available at http://www.epa.gov/region09/waste/tribal/open-dump.html. Inputs/assumptions included: 1) fifty tons of waste; 2) 1,600 square feet of area; 3) a rural setting in a primarily residential area; and 4) sixty feet of fencing would need to be installed. The default values in the model for labor, equipment, disposal costs, etc., were used.

[51] For example, the Hoopa tribe routinely cleans up dumps in steep, unstable terrain; see Region 9: Waste Programs, U.S Environmental Protection Agency, Solid Waste Management on Tribal Lands, Success Stories, http://www.epa.gov/region09/waste/tribal/success.html (on file with the Harvard Law School Library). In 2007, Redding Rancheria had to use extensive hand-labor to close a 300 square-yard dump along a stream bank in Sacramento. See id.

[52] Illegal Dumping Prevention Guidebook, supra note 34, at 3.

[53] Harvard Project on Am. Indian Econ. Dev., supra note 15, at 179–91.

[54] Zender, supra note 1 at 133 (citing Workshop on Solid Waste Disposal on Indian Lands: Hearing Before the S. Select Comm. on Indian Affairs, 102nd Congress (1991)) (statement of Mervyn Tano, Council of Energy Resource Tribes).

[55] Region 10, U.S Environmental Protection Agency, Clean Water Act Section 106 Tribal Funding, http://yosemite.epa.gov/R10/TRIBAL.NSF/Grants/CWA-S106 (on file with the Harvard Law School Library).

[56] U.S. Envtl. Prot. Agency, Clean Water Indian Set-Aside Grant Program: Answers to Frequently Asked Questions (2007), available at www.epa.gov/owm/mab/indian/pdfs/tribal-faq-highres.pdf.

[57] For example, the Pit River Tribal Council was able to support an ongoing solid waste and recycling program for the Tribe once EPA funding ran out. See Region 9: Waste Programs, supra note 51. The Tule River Tribal Council was able to keep a tribal transfer station running long-term after start-up funding from Indian Health Services. See U.S Envtl. Prot. Agency, Tribal Solid Waste Program Costing Tool 14 (2009), available at http://epa.gov/region09/waste/tribal/pdf/Tribal-Solid-Waste-Program-Costing-Tool.pdf.

[58] See, e.g., Solid Waste Disposal and Site Hazard Reduction Act, Assem. B. 2448 (Cal. 1987) (establishing the Solid Waste Disposal Site Cleanup and Maintenance Account based on annual fees assessed to landfill facility operators per tons of waste disposed).

[59] U.S. Envtl. Prot. Agency, FY 2010 Annual Plan 53 (2010), available at http://www.epa.gov/ocfo/budget/2010/fy_2010_annual_plan.pdf.

[60] “Tribes and Intertribal Consortia may use General Assistance Program funds for planning, developing, and establishing environmental protection programs and to develop and implement solid and hazardous waste programs for Tribes.” 40 C.F.R. § 35.545 (2010).

[61] The grant application for 2010 currently reads, “Examples of non-eligible activities include . . . long-term, on-going operation and maintenance of solid waste collection and recycling facilities.” To adopt this proposal, EPA would merely need to remove this sentence from the grant application. Region 9, U.S. Envtl. Prot. Agency, supra note 24, at 2.

[62] EPA currently works to promote well-run tribal waste management collection and dump cleanup/prevention programs through publications, regional and national meetings, and award programs. See, e.g., U.S. Environmental Protection Agency, Waste Management in Indian Country: Case Studies, http://www.epa.gov/waste/wycd/tribal/tribprog.htm (on file with the Harvard Law School Library).

2 Comments Post a comment
  1. Brett Matzke #

    This report could not have come at a better time. I am in the process of working on a Solid Waste plan for our tribe. Everything that this article says is right on point and I hope to use many of the arguments in future discussions with all levels of government. Thank you again for this well thought out and constructive article.
    Sincerely,
    R. Brett Matzke

    May 9, 2011

Trackbacks & Pingbacks

  1. “Trust and Trash”: New Scholarship on Dumping on Tribal Lands | Turtle Talk

Leave a Reply

You may use basic HTML in your comments. Your email address will not be published.

Subscribe to this comment feed via RSS