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The Rise of Tribes and the Fall of Federal Indian Law
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Shoshone-Bannock Tribes win sovereignty ruling
Tuesday, March 14, 2006

A non-Indian company doing business on fee land within the Fort Hall Reservation in Idaho must submit to the jurisdiction of the Shoshone-Bannock Tribes, a federal judge ruled last week.

In an 18-page decision, U.S. District Judge Lynn B. Winmill rejected FMC Corporation's attempt to skirt tribal environmental laws. The company argued that the tribe lacked authority over non-Indian activities on fee land.

According to U.S. Supreme Court precedent, tribes generally cannot assert sovereignty on fee land owned by non-Indians except under two exceptions. In the case of FM the judge said the company's consensual relationship with the tribal government satisfied one of the exceptions.

The company agreed to pay $1.5 million a year in fees to the Shoshone-Bannock Tribes, signed a consent decree with the federal government that recognized tribal sovereignty and continued to consent to tribal authority until very recently, the judge said. "For these reasons, the tribes have jurisdiction over FMC to enforce the terms of the tribal permit system," the March 6 decision stated.

Tribal officials hailed the ruling as a victory for their rights. "The decision by the federal court finally confirms our position, declaring the tribes' inherent sovereign powers to regulate activities within the reservation," said Chairman Blaine Edmo.

FMC Corporation is the world's largest producer of the phosphorous, a chemical used in a variety of consumer products such as detergents, beverages, food and pesticides Since 1949, it has operated a phosphorous plant on the reservation that produces waste stored in ponds on the site. The plant was put out of use in December 2001 but the waste remains on the reservation.

The company's waste storage practices came under scrutiny of the Environmental Protection Administration back in 1997. Around the same time, FMC was negotiating with the tribes over the use of the fee land.

An agreement were reached with the EPA over alleged violations of environmental law. FMC agreed to pay a $12 million federal fine and spent a total of $170 million on cleanup, a settlement that was considered the largest of its kind at the time.

FMC subsequently agreed to pay $1.5 million annual fee to the tribes and agreed to obtain all necessary tribal permits related to the plant. The EPA's consent decree, approved in federal court, specifically recognized tribal sovereignty as well.

"There is no indication whatsoever in the decree that the tribe was being stripped of that sovereignty," Winmill wrote in the decision.

The Shoshone-Bannock Tribes benefited from substantial evidence that FMC consented to tribal laws. But in practice, it has been difficult for tribes to assert jurisdiction over non-Indian activities on fee land due to the Supreme Court's ruling in US v. Montana, a case from 1981.

The case said tribes lost inherent sovereignty over non-Indians. But the court laid out two exceptions: if the non-Indian has a consensual relationship with the tribal government in question, or if the actions of the non-Indian threaten the "political integrity, the economic security, or the health or welfare of the tribe."

The requirements have made it nearly impossible for tribes to collect taxes, regulate companies that use reservation land and hear civil lawsuits that impact tribal members. As recently as August 2004, the 9th Circuit Court of Appeals, which includes Idaho, had ruled that a tribal court in Montana couldn't hear a wrongful death and negligence suit even though every party involved is Indian.

That case, involving the Confederated Salish and Kootenai Tribes, was reversed in favor of tribal sovereignty this past January. But tribal lawyers still say tribes face difficult hurdles in asserting jurisdiction on their lands.

"The court has changed the rules on us," C. Bryant Rogers, a tribal attorney, said at an Indian law conference last year. "They're going to keep changing the rules on us."

As for Shoshone-Bannock Tribes, they plan to continue press FMC to abide by the agreements reached several years ago. Tribal officials have long been worried about the impact of the chemical waste on the health and safety of the reservation. FMC has been decommissioning the plant, with fewer than 60 employees -- down from over 500 -- remaining at the site.

"For the tribes, this decision means FMC cannot close up shop and skip town while disregarding tribal laws regulating land use on the reservation," said Marlene Skunkcap, a tribal council member.

The tribes have been participating in the Idaho Optimum Initiative, a blue ribbon panel created by the state of Idaho to determine potential uses for the FMC site.

Court Decision:
US v. FMC Corporation (March 6, 2006)

EPA Documents:
Hazardous Waste Management at FMC (EPA Region 10)

Relevant Links:
Shoshone-Bannock Tribes - http://www.shoshonebannocktribes.com
FMC Pocatello - http://www.idahofmc.com
FMC Corporation - http://www.fmc.com
Idaho Optimum Initiative - http://ioi-online.org

Related Stories:
Appeals court upholds tribal jurisdiction after rehearing (01/11)
Washington court refuses to halt tribe's utility tax (08/12)
Appeals court to rehear tribal jurisdiction case (06/08)
Appeals court rules against tribal jurisdiction (08/09)
Tribal authority over all Indians still unsettled question (06/23)
Supreme Court affirms tribal powers over all Indians (04/20)

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