Victory Against Polluters
The U.S. Supreme Court declined to consider a chemical company’s appeal, handing the Shoshone-Bannock tribes a rare victory against polluters. In January 2021, the Court rejected FMC Corporation’s final appeal to contest the jurisdiction of the Shoshone-Bannock Tribes to regulate storage of approximately 22 million tons of hazardous waste on the Fort Hall Reservation at the Eastern Michaud Superfund site west of Pocatello, Idaho.
In 1998, FMC voluntarily agreed to conditions of a tribal annual permit but after four years, when FMC closed business operations in 2002, they refused to honor their agreement and left their hazardous waste within the reservation. During this time the tribes created the Shoshone-Bannock Tribes’ Waste Management Act, which spelled out requirements for companies who generate or store waste on the reservation, including monitoring of sources of contamination.
The ruling is significant to Indian Country because it confirms corporations must comply with tribal regulations when doing business on tribal lands.
Balking at methodology that put the population of the Shawnee Tribe at zero when it has thousands of members, the D.C. Circuit recently ordered an injunction on how the government administers coronavirus-relief funds to American Indians and Alaska Natives. The Shawnee “incurred significant medical and public health expenses in responding to the devastation resulting from the Covid-19 pandemic,” according to the complaint filed, but the government’s miscalculation of its members meant that it got just $100,000 under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act.
This amount is the minimum payment for tribes with a population of fewer than 37. State, local, and tribal governments are statutorily entitled to $150 billion from the CARES Act, with $8 billion of that pie reserved for the tribes. Like the Shawnee, which has certified a membership of 3,021, the Miccosukee and the Eastern Delaware Band of Indians were both labeled as having populations of zero under the government’s methodology.
Can Corporations Be Tribes?
The U.S. Supreme Court will hear a case that centers on who gets a share of $8 billion in federal coronavirus relief allocated for American Indian and Alaska Native tribes. Lower courts split on whether Alaska Native corporations, which own most Native land in the state under a 1971 settlement, should be in the mix. The U.S. Treasury Department sought review from the high court after a federal appeals court ruled in September 2020 that the corporations aren’t eligible.
The Treasury Department said if the decision stands, the corporations will lose out on “hundreds of millions of dollars” in funding and be deprived of their ability to help Alaska Natives when it comes to health care, education and economic well-being. It’s unclear whether the case will be argued in the spring or fall session. The key question is whether the corporations are considered “tribes” under the Coronavirus Aid, Relief and Economic Security Act. The case has required judges, attorneys, American Indian tribes and the Alaska corporations to pick apart language of the act, congressional intent and a 1975 federal law meant to strengthen tribes’ ability to govern themselves.
More than a dozen American Indian and Alaska Native tribes sued the U.S. Treasury Department last year to try to keep the money out of the hands of corporations, arguing that it should go only to the 574 tribes that have a government-to-government relationship with the United States.
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