Year of Award

2020

Document Type

Thesis

Degree Type

Master of Science (MS)

Degree Name

Forestry

Department or School/College

Franke College of Forestry and Conservation

Committee Chair

Brian Chaffin

Commitee Members

Ruth Ann Plenty Sweetgrass-She Kills Vicki Watson John Goodburn

Keywords

Consultation, Sovereignty, Treaty Rights, Environmental and Social Justice

Publisher

University of Montana

Subject Categories

Constitutional Law | Environmental Law | Indigenous, Indian, and Aboriginal Law | Legal History | Natural Resources Law | Other Forestry and Forest Sciences

Abstract

Formal, government-to-government Consultation between sovereign nations is a process of continuous relationship-building, a partnership and an agreement made with all points-of-view included in the process, with results that have the fingerprint of all nations involved evident. The Federal Government is obligated to work with Federally-recognized Tribes as sovereign nations in matters that have or will impact each Nation’s people and places (reservations, treaty-protected areas)—a process legally known as Consultation. The Environmental Protection Agency (EPA), as a federal agency, must uphold the Federal Trust responsibility which includes the act of Consulting with Federally-recognized Tribes on matters involving human health and the environment on reservations or in aboriginal territories when treaty resources are impacted. Consultation between Tribes and federal agencies in general, and specifically between the EPA and Tribes, has not been successfully constructed nor implemented. In this thesis, I seek to understand how Consultation is defined in federal policy and how it is perceived by Tribes, what is not working, and what can be done to create inclusive and meaningful Consultation, specifically between the EPA and Tribes in relation to the Superfund process. The Confederated Salish and Kootenai Tribes (CSKT) are Natural Resource Trustees across their aboriginal homelands, which includes nmisuletkʷ ,the Middle Fork of the Clark Fork River. The impacts of air, land, and water pollution left behind by the operations of a former paper mill continue to have an impact on Tribal Trust Resources. I employ indigenous and qualitative research methods to analyze Federal-Tribal Consultation including a broad policy analysis and a case study that leverages direct observation and semi-structured ethnographic interviews with Tribal members and representatives involved in Tribal response to federal and state processes for the potential listing of the Smurfit-Stone/Frenchtown Mill as a Superfund site. Through this work, I articulate a foundation for creating (or amending) policy that better reflects a Native worldview to be more inclusive, culturally relevant, and effective for sustainable management of our shared landscapes. Consultation between two or more sovereign nations necessitates equal footing. This case study illuminates several barriers to effective and meaningful Consultation with Tribes, but also provides suggestions to the EPA for more just and inclusive Consultation practices. The recommendations for improving Consultation include Indigenizing Consultation, which will create a more transparent, inclusive, and long-term relationship between Native Nations, the EPA, and the environment.

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© Copyright 2020 Jennifer J. Harrington