Tribe keeping an eye on federal trends which potentially diminish sovereignty

By Nicole Montesano

Smoke Signals staff writer

Earlier this year, the federal Department of Energy asked the Federal Energy Regulatory Commission to adopt a policy to remove the ability of Tribes to veto preliminary hydropower projects on their lands, a move that was opposed by numerous Tribes.

Grand Ronde hasn’t taken a position on that change, Tribal Ceded Lands Manager Michael Karnosh said, because it doesn’t directly affect the Tribe.

“There aren’t currently any hydro projects on Tribal lands … for us, it is all on ceded lands,” he said.

The Tribe is still awaiting a decision by a federal judge on Portland General Electric’s effort to take ownership of Willamette Falls from the state. Expected last summer, that decision has now been more than seven months in the making.

However, Karnosh said, the DOE’s request is “alarming because it’s part of this larger trend that’s going on across the ceded lands of the Tribes. It’s hard to believe anyone would advise for a Tribe not to be able to veto a project on their lands. … It’s a shock that the DOE would want to try to insult Tribal sovereignty to that extent, and it just brings to light all the other environmental setbacks. They set them in motion last spring and summer, and they just keep coming, but we’re learning to keep a better eye on what the feds do.”

He said the Tribe has been seeing that, overall, “Things are getting streamlined. Whole pieces are going missing and Tribes are not as empowered as they were years ago. Another concerning trend is that the agencies that talk to Tribes most often have seen a lot of personnel cuts. It might not be project staff, but the liaison staff who know the history and understand the Tribes’ concerns – those people are gone.”

Those mass federal layoffs affected multiple departments and projects.

“Land management agencies such as the U.S. Forest Service terminated all non-wildfire seasonal positions with no plan to ever backfill them, which means that most of the archaeologists, botanists and other specialists that have been conducting Tribal consultation on forest activities with Grand Ronde for decades are now just…gone,” Karnosh said. “The Department of Government Efficiency (DOGE) eliminated thousands more positions at land management, environmental and other resource agencies charged with protecting Tribally important species, habitats, sites and other resources on the landscape, with no apparent plan to ever replace/restore their functions or capacities.”

Fortunately, Karnosh said, “Grand Ronde has our own staff, so we have a good team. … There are a number of other actions over the last year that have really had an impact on the Tribe’s ability to confer meaningfully on ceded lands.”

In addition, “The president issued several executive orders allowing for the fast-tracking or side-stepping of established federal environmental laws … on projects that are related to energy, timber production and mineral production,” Karnosh said. “The administration and federal courts combined to abolish the Council on Environmental Quality guidelines and to severely restrict the definition of ‘Waters of the United States’ through rulemaking.”

Karnosh explained that “Grand Ronde has seven ratified treaties with the United States, under which it ceded title to its homelands (but nothing else) to the U.S. Under the Reserved Rights Doctrine, the Tribe retains any and all rights it did not expressly give up in the treaties and the U.S. government has the obligation of protecting those Tribal rights and interests under its jurisdiction within the ceded lands. In other words, before taking any action that could kill/damage/destroy Tribal rights and resources (native salmon, camas fields, water quality, Tribal archaeological sites) the feds must first consult properly with the Tribe among other requirements.”

Last April, the Tribe drafted a letter sent out to all agencies with whom the Tribe has interactions, emphasizing that point.

In May, Tribal Council followed it with a resolution declaring that the Tribe recognizes major federal environmental laws, “as they existed in their forms and functions on March 20, 2023, as the standard for minimally sufficient federal law for these purposes.”

The resolution states that changes to those laws “resulting in levels of protection and restoration below the baseline standard for Tribal rights and resources will not sufficiently uphold the Tribe’s treaty rights or the federal trust responsibility toward the Tribe.”

The laws at issue included the Clean Water Act, the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Native American Graves Protection and Repatriation Act, the Clean Air Act, and “similar federal laws and regulations.”

The letter was written by Karnosh, in consultation with Tribal Council Chief of Staff Stacia Hernandez and Interim General Manager Bryan Langley. It reminds federal agency staff that “The United States has a unique relationship with Indian Tribes, known as the federal trust responsibility. This heightened duty of care for the rights and resources of Indian Tribes is based on valid, well-established executive orders, federal statutes and Supreme Court case law. Similar obligations toward Tribes can be found in state and local law. Government agencies have a responsibility to consult with Tribes when actions have the potential to affect resources important to the Tribes. Consultation is defined by Grand Ronde as ‘an equal dialogue between sovereign nations or their agencies at the highest levels of decision-making. Consultation is an ongoing and meaningful dialogue; this means that consultation takes place until project completion, not just until the consultation window is done.’ Each Tribal nation has the sovereign right to practice consultation in its own way.’

 The letter also reminds agencies that “Treaties with Indian Tribes are recognized in Article VI (6) of the Constitution as the ‘supreme law of the land.’ Any rights not specifically given up in the text of a treaty are reserved by Indian Tribes. These rights included, but are not limited to, hunting, fishing, gathering and access. Specific to cultural resources, Indian Tribes retain the right to access, steward and protect cultural resources, (including natural resources such as fish, water and wildlife) within the treaty-defined area. Any government action potentially impacting treaty rights, interests and/or resources must fulfill Tribal consultation with the affected Tribe(s).”

It notes that “fast tracking projects through consultation and/or reducing consultation resources does not uphold the government’s responsibility to Tribes. Such streamlining or resource depletion is an improper, unjust and unlawful abrogation of sovereign trust and treaty rights held by Tribal nations.”