University of Montana ScholarWorks at University of Montana Graduate Student Theses, Dissertations, & Professional Papers Graduate School 2020 TRIBAL CONSULTATION POLICY AND PRACTICE:A CASE STUDY OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES AND NMISULETKʷ (THE MIDDLE FORK OF THE CLARK FORK RIVER) AS A TRIBAL TRUST RESOURCE Jennifer J. Harrington University of Montana Follow this and additional works at: https://scholarworks.umt.edu/etd Part of the Constitutional Law Commons, Environmental Law Commons, Indian and Aboriginal Law Commons, Legal History Commons, Natural Resources Law Commons, and the Other Forestry and Forest Sciences Commons Let us know how access to this document benefits ou.y Recommended Citation Harrington, Jennifer J., "TRIBAL CONSULTATION POLICY AND PRACTICE:A CASE STUDY OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES AND NMISULETKʷ (THE MIDDLE FORK OF THE CLARK FORK RIVER) AS A TRIBAL TRUST RESOURCE" (2020). Graduate Student Theses, Dissertations, & Professional Papers. 11686. https://scholarworks.umt.edu/etd/11686 This Thesis is brought to you for free and open access by the Graduate School at ScholarWorks at University of Montana. It has been accepted for inclusion in Graduate Student Theses, Dissertations, & Professional Papers by an authorized administrator of ScholarWorks at University of Montana. For more information, please contact [email protected]. TRIBAL CONSULTATION POLICY AND PRACTICE: A CASE STUDY OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES AND NMISULETKʷ (THE MIDDLE FORK OF THE CLARK FORK RIVER) AS A TRIBAL TRUST RESOURCE By JENNIFER JO HARRINGTON B.S. Resource Conservation, University of Montana, Missoula, MT, 2015 Thesis presented in partial fulfillment of the requirements for the degree of Master of Science in Forestry The University of Montana Missoula, MT December 2020 Approved by: Scott Whittenburg, Dean of The Graduate School Graduate School Dr. Brian C. Chaffin, Chair Department of Society and Conservation Dr. Ruth Ann Plenty Sweetgrass-She Kills Native American Studies, Nueta Hidatsa Sahnish College Dr. Vicki Watson Environmental Studies Department Dr. John Goodburn Department of Forest Management © COPYRIGHT By Jennifer Jo Harrington 2020 All Rights Reserved ii Harrington, Jennifer, M.S., Fall 2020 Resource Conservation Tribal Consultation Policy and Practice: A Case Study of the Confederated Salish and Kootenai Tribes and nmisuletkʷ (the Middle Fork of the Clark Fork River) as a Tribal Trust Resource Chairperson: Dr. Brian C. Chaffin 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. iii ACKNOWLEDGEMENTS Boozhoo indinawemaaganidog. Tansi! Miigwech! Kinana'skomitina'wa'w! I first want to acknowledge the Confederated Salish and Kootenai Tribes and each of the individuals who gave their time to share their story and talk about how Consultation is and is not working between sovereign nations. Miigwech! Thank you! I am grateful beyond words to all those who have supported me throughout my graduate work here at the Franke College of Forestry and Conservation at the University of Montana. I wish to thank my Advisor, Brian Chaffin, for his patience, guidance, support, and shared interest in seeking social and environmental justice. I have learned so much from him and will be forever grateful for his influence on my work! I wish to thank my mentor, friend, and committee member, Ruth Ann Plenty Sweetgrass-She Kills! Without her belief in me as an undergraduate student and her continued support throughout my graduate work, I would not be here right now. Ruth has been a constant source of encouragement and has guided me in conducting this research using Indigenous Research methods and perspective. I wish to thank my committee member, Vicki Watson, who also saw potential in me as an undergraduate and as a fierce defender of environmental justice. I learned so much from Vicki about pollution, activism, and persistence! I also want to thank my committee member, John Goodburn, who has always been a role model to me and taught me how to conduct a literature review, taught me about forest ecosystems, and he shared his appreciation for knowledge and understanding that have made an impact on my work! I would like to thank our Associate Dean, Michael Patterson, who has been an unwavering source of guidance and support since I returned to the University of Montana. He is an inspiration to me and my work. Finally, a big thanks to UM Professors Ke Wu and Fred Peck, and to Dean Nicolai and Aaron Brien of Salish Kootenai College. I would not be here today without the love and support of my family and friends, some still with us and some that have passed on. To my Mom and Dad, Miigwech! To my children, Liam and Olivia, thank you for your constant patience with me as I returned to school to finish my undergraduate degree and then went on to complete my graduate degree! Finally, I need to thank the natural world. The trauma that impacted my life persisted like pollution and left me without hope. Healing began when I started to explore and engage with all of my relatives. Now, it is my turn to repay the gift and I hope that this work is one way to help repair the damages that industry and development have had across the globe. My thesis journey has been fraught with barriers, much like the Superfund process, however, I see a light at the end of the long tunnel and feel hopeful that this research will result in changes in policy and practice between the EPA and Tribal governments. iv Table of Contents Chapter 1 Introduction .................................................................................................................... 1 Chapter 2 Background .................................................................................................................... 4 2.1 Why Consult with Tribes? The Federal-Tribal Trust Responsibility ................................... 4 2.2 Tribal History: Salish and Pend d’Oreille Tribes ................................................................. 6 2.2.1 The People ..................................................................................................................... 7 2.2.2 Home – Time Immemorial ............................................................................................. 9 2.2.3 Change on the Landscape ............................................................................................ 12 2.2.4 Post-treaty Impacts to the People, the Land, the Water, and the Culture .................... 15 2.3 The U.S. Environmental Protection Agency....................................................................... 18 2.3.1 Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) ............................................................................................................................ 19 2.3.2 The Evolving Superfund Law