goal of sustainable, non-consumptive use has been reinforced by
CERCLA, which names American-Indian Tribes to serve as natural
provides that natural resources trustees can recover for natural
tribes have traditionally asserted a governing ethic of acting in such
a way as to preserve resources for seven generations in the future.
This goal of sustainable, non-consumptive use has been reinforced in
recent years by provisions of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA),1
which name American-Indian Tribes to serve as natural resources trustees,
along with their state and federal counterparts. Under the statute,
a governmental entity responsible for a natural resource that has been
injured is designated as a trustee to protect the public’s interest
in restoring the environment. An excellent example of the role tribes
can play in preserving natural resources is the recent out-of-court
settlement of a lawsuit brought by the Saginaw Chippewa Tribe, along
with the state of Michigan and the United States, against General Motors
Corporation and the Cities of Bay City and Saginaw, for restoration
of the Saginaw River and Bay watershed.
river and bay were seriously contaminated by polychlorinated biphenyls
(PCBs), allegedly initially released by the automaker’s facilities,
then passed through the two cities’ wastewater treatment plants.
Under the settlement, the defendants agreed to pay approximately $28 million
for dredging to remove sediment and restore the area. In addition, various
tracts of land were set aside for wildlife preservation, including a 110-acre
tract in Allegan County, which was conveyed to the tribe and immediately
put into trust by the Bureau of Indian Affairs. Archeological surveys
of this land, which was Chippewa territory before contact, have yielded
various artifacts, including pottery shards, a bead, and projectile points.2 The
land transfer was explicitly made to make the tribe whole in compensation
for the damage done to the tribe’s hunting and fishing rights.
relatively simple transaction warrants attention because it illustrates
two important developments in law and public policy. The first is the
institutionalization of a policy of restoring environmental damage whenever
possible. The second is a renewed recognition of the sovereignty of
American-Indian tribes, both over reservation land held in trust and
over usufructuary hunting and fishing rights.
CERCLA was passed by Congress in 1980, in addition to providing for the
remediation of land contaminated by hazardous substances, it provided
that natural resources trustees can recover for natural resource damages
(NRD) caused by the release of these substances. Natural resources trustees
include federal, state, and local governments and Indian tribes.3
This is consistent with federal policy, as embodied in the various statutes,
including the Clean Water and Air Acts, providing that Indian tribes should
be treated as states when they have infrastructure in place to assume
that responsibility. Natural resources are defined as ‘‘land,
fish, wildlife, air, water, ground water, drinking water supplies, and
other such resources managed by, held in trust by, appertaining to, or
otherwise controlled by the United States.’’ A Natural Resources
Trustee is ‘‘any state or local government,...any Indian tribe,
or, if such resources are subject to a trust restriction on alienation,
any member of an Indian tribe.’’4
relevant damages that the NRD trustees can claim include:
funds to restore the environment to the condition that existed prior
to the injury; this is fairly clear cut and often requires actions similar
to the remediation required by CERCLA’s parallel requirements5
the cost of the trustees’ initial assessment of the nature and
extent of the environmental injury, and delineating the quantity of
monetary damages needed
compensation for the loss or reduction of the use of the resource from
the time of the initial injury until restoration is completed
final type of damages has historically been the most controversial factor
in the final determination of damages, both because restoration or replacement
damages are often substantially higher than damages figured by the classic
tort formula of subtracting the value of the property after the injury
from its value before the injury occurred, as well as because the benefits
and services provided by the resource are not necessarily reflected in
any obvious market value. These can be active uses, such as swimming or
hiking, or passive uses where people value the existence of a resource
without actually using it. For example, a citizen of Michigan may be concerned
with preservation of grizzly bears in Yellowstone National Park.6
The affirmation that damages are owed for this sort of injury reflects
a notable change from traditional concerns about awarding damages that
are too speculative, hence the controversy. Resolution of the issue in
favor of restoration reflects an effort to require that enterprises fully internalize
the costs of their activities.
the exception of early cases challenging the methodology for computation
of compensatory and passive damages, most cases brought for NRD are
resolved by settlement and are therefore not memorialized in reported
cases, although some consent decrees are available online. Since NRD
are generally characterized as the difference between the condition
of the resources before the injury and its state after the cleanup,
combined with the lost use value and the costs of making the assessment
itself, they are not generally settled before the initial cleanup.
might be expected, in the majority of NRD actions the trustee is a state
or federal agency, often both working together. However, in a significant
number of actions, a tribal trustee participates as well. This is appropriate,
as well as statutorily authorized, because tribes, as ‘‘domestic
are responsible for the land and resources they were able to hold on to
after two centuries of destructive federal policies. Generally, tribal
NRD claims are made jointly with the federal government and seek restoration
of on-reservation resources. The General Motors Consent Decree discussed
above is interesting because it approves the claim of the Saginaw
Chippewa Tribe for NRD for the tribe’s off-reservation reserved
hunting and fishing rights.
usufructuary rights to hunt and fish derive from the tribes’ aboriginal
title to all land in what is currently Michigan. When in the early-to-mid
19th century, the Chippewa ceded to the United States a substantial
portion of their land in this state, they did not explicitly transfer
these rights as well. Therefore, these rights remained with the tribe
under basic principles of property law and treaty interpretation.8
While the rights of the Bay Mills Indian Community and Sault Ste. Marie
Tribe of Chippewa Indians were explicitly adjudicated in a series of
cases revolving around the state of Michigan’s assertion of a
right to prohibit American-Indian gill netting,9
these rights for the Saginaw Chippewa have not been explicitly reaffirmed
by the federal courts. Since the same principles apply, this affirmation
is arguably pro forma, but the affirmation implicit in the Consent Decree
is a welcome one to tribal members. This is particularly so because
it occurs in a cooperative, noncontroversial context, rather than through
the sort of acrimonious dispute the earlier adjudications entailed.
specifics of the GM Consent Decree provide a model of how this relatively
novel remedy works and of how tribes can play an important role in the
preservation and restoration of our shared environment. This case was
a consolidation of three actions brought against the defendants. During
the course of the nearly five years of negotiations between the parties,
which ultimately resulted in the consent decree, the trustees examined
the entire assessment area,10
from the head of the Saginaw River to the outer edge of Saginaw Bay,
including resources that ‘‘inhabit or feed’’
in the area or are ‘‘ecologically dependent’’
on it. In this instance, the injuries were determined to be the PCB-contaminated
sediments, which affected the aquatic habitat and migratory birds, and
interference with fishing, including subsistence fishing and hunting.
that point, keeping in mind that the goal is to return the area to its
precontamination state, the trustees must look at a reasonable number
of possible alternatives that are possible in the restoration, rehabilitation,
replacement, and/or acquisition of the injured resources and the services
In evaluating those services to tribes, a good argument can be made
that the resource’s role in tribal cultural and spiritual practices
must be taken into account,12
particularly because most tribe’s spiritual beliefs are an intrinsic
part of the culture and of everyday life. A good example of this is
the injury inflicted on the communal life of the Isleta Pueblo when
high cyanide levels in the Rio Grande River endangered ceremonial drinking
from that river.13 While
the GM Consent Decree does not explicitly recognize cultural injuries,
in fact the Allegan County property does contain archaeological resources.
addition to the Allegan County wilderness property, the GM consent Decree
NRD included the dredging and disposal of contaminated sediments; the
funding of recreational and educational facilities, including boat launches,
and the green Point Environmental Learning Center; restoration of the
Tobico Marsh (spawning habitat for pike and perch); and the acquisition
of various islands, coastal wetlands, and lake plain prairie properties.
the amount of the damages and how they were to be allocated were agreed
to, the final step was implementation of the plan by the trustees. In
this instance, many of the decisions are required to be made collectively
by a Trustee Council based upon a Memorandum of Understanding (MOU).14
Under this MOU, each trustee appoints representatives to serve on the
council, which requires a consensus by a quorum for all decisions. If
a consensus cannot be reached, the MOU sets up a dispute resolution
system that provides for the tribe and the U.S. Fish and Wildlife Service
to confer and reach preliminary decisions. This is the basis for consultation
with the state to reach a final decision. This mechanism, in addition
to providing a road map for carrying out the parties’ trust responsibilities,
also seems well suited to developing the sort of institutional cooperation
between the tribe and state, which is likely to benefit all concerned.
pattern of cooperation, in support of the goal of making the environment
whole for future generations, is a positive one that can hopefully be
followed in the future when public resources have been injured.
Csernyk, Scott, Field Survey Conducted on Land from Settlement,
Tribal Observer, p. 2, May 1, 1999.
3. 42 USC 9607(f)(1) (1994).
See Hupp, R. Craig and Denton, Charles M., Natural Resources Damage
Assessments and Claims in the Great Lakes Basin, Part I: The Law of
Natural Resources Damages Assessments, 19 Mich Env J 3 (2001) and
Hupp, R. Craig and Denton, Charles M., Natural Resource Damages
Assessments and Claims in the Great Lakes Basin, Part II: Analysis of
NRD Settlements, 20 Mich Env J 3 (2002).
Johnson v M’intosh, 21 US (8 Wheat) 543 (1823).
US v Michigan, 471 F Supp 192, 213 (WD Mich 1979). Later court
rulings examined the state’s power to regulate Indian gill netting.
Consent decree, paragraph 5.5.
Martin, Connie Sue, Spiritual and Cultural Resources as a Component
of Tribal Natural Resource Damages Claims, 20 Pub. Land &
Resources L. Rev. 1 (1999).
13. City of Albuquerque
v Browner, 97 F3d 415 (CA 10, 1996).
14. Consent decree, Appendix