Solid Waste Management in Indian Country: Multiple Sovereigns and Multiple Relationships atthe Nexus of Federalism and Tribal GovernanceAuthor(s): James OrtizSource: Administrative Theory & Praxis, Vol. 23, No. 2 (Jun., 2001), pp. 263-268Published by: M.E. Sharpe, Inc.Stable URL: http://www.jstor.org/stable/25611514 .

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Administrative Theory & Praxis Vol. 23, No. 2, 2001: 263-268

Solid Waste Management in Indian Country: Multiple Sovereigns and Multiple

relationships at the nexus of federalism and Tribal Governance

James Ortiz

Virginia Polytechnic Institute and State University

ABSTRACT

Indian tribes are sovereign governments having their own governance structures. At the nexus or intersection where federalism and tribal

governance meet, many complex relationships occur as in the case of solid waste management. Analysis of research data suggests that three

patterns of relationships may emerge among these sovereigns:

1. uncooperative relationship; 2. cooperative formal relationships: and

3. cooperative informal relationships.

Such patterns of relationships point to tribal sovereignty as an important theme for public administration awareness. An argument is presented for better relationships among all governments not only in solid waste

management but also for public policy in general.

INTRODUCTION

The framers of the Constitution developed our constitutional system of

governance as a relationship between two distinct sovereigns, the federal

government and state governments, each with respective control over its

sphere of influence. Our 200 years of tradition and the historical development of our institutions have produced a federal system that is uniquely American.

We have a complex structure of layered governments, which includes fifty states, the District of Columbia, and U.S. administered territories. In addition, the United States has a huge quantity of separate substate and regional governments, which include counties, cities, and townships, and other

political subdivisions (e.g., boroughs, districts, parishes, special districts, etc.) (U.S. Department of Commerce, 1990). Despite whatever structure of

?2001, Public Administration Theory Network

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264 Administrative Theory & Praxis > Vol. 23, No. 2

governance the federal and state governments may take, it is still a balance between sovereigns despite the influence of numerous political institutions, bureaucracies, non-governmental organizations, stakeholders, and other actors.

PURPOSE AND SIGNIFICANCE OF THE STUDY

We often forget that a third sovereign exists, the 558 (see 25 C.F.R. Part 83, 1997) federally recognized Alaska Native and American Indian tribes in our

country (Witmer & Corntassel, 1996). Tribes have their own governance structures and are dealt with on a government-to-government relationship by the United States. While tribes make up slightly more than 2,400,000 inhabitants of the total population of the United States, in light of their

landholdings their role in the competition for resources far outweighs their

relatively small presence in the American polity (U.S. Department of

Commerce, 1999). Historically, tribes exercised inherent powers of

preconstitutional sovereign nations by forming compacts, treaties, and

military alliances. What makes tribes so special is that they have a unique political

relationship with the United States government. Unlike the states, their inherent sovereignty is not derived from a constitutional provision.

Approximately fifty percent of the total tribal population resides on

reservations, lands, and villages, which make up "Indian country" (18 U.S.C.

1151, 1998) These legal and statutory terms define boundary, jurisdictional, and land arrangements unique to this territory (Cohen, 1982, p. 27). The land base that constitutes Indian country encompasses an area of approximately 3.6 million square miles and an additional 100 million acres of land held in trust for tribes by the government (Department of the Interior, 1998).

This study examines the issue of managing solid waste, i.e., materials

ranging from nonhazardous municipal garbage to hazardous industrial chemical waste, in what is statutorily referred to as Indian country, as a focal

point in understanding the complexities of public policy administration. Solid waste management is a major problem in Indian country because, oftentimes, solid wastes end up in substandard landfills or are illegally dumped on tribal lands. These solid wastes can leak and contaminate both Indian and non

Indian community drinking water supplies. The federal statute that addresses solid waste management is the Resource

Conservation and Recovery Act of 1976 (42 U.S.C.A. 6921 et. seq.) It is the

only federal environmental statute that treats tribes as municipalities and hence not as sovereigns. This is a fundamental statutory flaw. The reason for this inquiry is that it takes the analysis of a program such as solid waste

management from the level of legal abstraction to the level of policy action.

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Ortiz 265

This is based on the federally recognized trust doctrine, a unique relationship between the federal government and Indian tribes that is comprised of 379 ratified treaties as well as executive agreements, direct consultation with

Congress on Indian affairs, federal statutory obligations and court decisions

(J. Corntassel, personal communication, October 30, 2000). This unique relationship requires dealing with tribes on an administrative

and policy level which must encompass the past, present, and future. It

requires careful consideration of cultural, historic, and socio-economic

aspects of Indian tribes, which are often inter-twined. This stands true as well for federal environmental policies and statutes, of which solid waste

management is a component. Unfortunately, as pointed out by Aufrecht

(1999, p. 370), "the public administration literature almost completely ignores the topic of Native American governance." Even though tribes are separate sovereigns, they are indeed part of our American polity and it is important to examine their place as sovereigns along with the federal and state

governments. Finally, this study suggests that tribal sovereignty is an

important theme for public administration awareness and that by understanding issues of sovereignty, better relationships among all

governments may occur and lead to improved public policy.

METHODOLOGY

The methodology applied in this qualitative study is descriptive and

incorporates a number of levels of inquiry. Forty-five interviews were conducted during the late spring and summer of 1999. In addition to the

interviews, information about tribal solid waste management programs was obtained from thirty-five tribes, tribal organizations, and other sources. Other contacts were made and information obtained during the fall and winter of 1999 and the spring of 2000 in order to supplement the research data. Interviews and contacts spanned sixteen states and the District of Columbia.

Interviewees included representatives from tribes, tribal organizations, federal and state agencies, universities, and other non-governmental organizations. Supplementary data included documentary sources from

congressional hearings, environmental impact statements, notices and rules

printed in the Federal Register, federal and state agency administrative

manuals, and other information obtained from outside sources. The analysis of research data was assisted through the use of QSR NUD*IST 4.0 qualitative research software.

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266 Administrative Theory & Praxis Vol. 23, No. 2

FINDINGS DISCUSSION

The research data suggest that at the nexus or intersection where federalism and tribal governance meet, relationships can and often do occur among multiple sovereigns. Many of these relationships are often complex and may take any number of forms. They may be entirely uncooperative or they may be held in cooperative formal or cooperative informal arrangements. The patterns of uncooperative, cooperative formal, and cooperative informal relationships are very complex, with some occurring simultaneously, while others followed different paths in time.

Uncooperative, cooperative formal, and cooperative informal relationships are also interconnected as well. In each relationship, we see how groups interact and participate both favorably or unfavorably. This is important particularly in the area of solid waste management because we are dealing with the effects of solid waste on biological systems (e.g., people, plants, wildlife). Applied in this way, these complex relationships enrich our overall

understanding of governance by linking various systems (e.g., economic,

biological, political) together. They confer interdependence between

sovereigns. Ultimately, tribes, the federal and state governments, and other entities (e.g., non-governmental entities) should engage in a cooperative and shared notion of governance. Uncooperative relationships do not foster such interconnected relationships. If these relationships are dealt with in a

cooperative manner, they can assist in the recognition of all sovereigns and in

reaching out especially to tribes.

IMPLICATIONS FOR GOVERNANCE AND POLICY

Resources for solid waste management are needed. The one-size-fits-all

regulatory approach to environmental problems and solid waste management in particular does not work and often leads to uncooperative relationships between governments. However, they are not always provided in proportion to

what is needed in Indian country. Furthermore, the high capital costs for solid waste projects, such as constructing landfills and purchasing equipment, along with operating and maintenance costs, present serious obstacles for many tribal communities. In addition, the small size and remoteness of many tribal

communities have resulted in insufficient access to training and technical

support programs that hinder the efforts of many tribes to tackle solid waste

management issues.

One key to forward movement in solid waste management in Indian

country appears to be the creation of partnerships among sovereigns.

Partnerships are suitable for sovereigns as a means of interrelationship since

they are entered into voluntarily. Many tribes are now partnering with states,

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Ortiz 267

local governments, and other tribes to open lines of communication and share resources. These partnerships help tribes supplement and establish municipal solid waste management projects that might otherwise be too costly for a

single tribe. Such partnerships can take the form of either a cooperative formal

(e.g., contracts, agreements, etc.) or informal relationship. For example, a

tribe can share municipal solid waste equipment, such as collection trucks, with other tribes or local communities in order to reduce costs. Partnerships also can provide tribal environmental personnel with wider access to technical

assistance, training programs, and financial support mechanisms. By working together, tribes and other small communities with limited resources can

expand their waste management options to establish effective waste

prevention and recycling programs, state-of-the art landfills, and waste-to

energy facilities. While the focus of the study has centered on solid waste management, the

broader implications for governance and policy in general are important. Unlike any other group, what makes tribes so special is that they have a unique political relationship with the United States government. It is a government to-government relationship with the United States. The federally recognized trust doctrine is a special relationship between the federal government and tribes. Furthermore, the place of tribes within our American polity as distinct

sovereigns alongside the federal and state governments is important to understand. Finally, this study suggests that tribal sovereignty is an important theme for public administration awareness and that by understanding issues of

sovereignty, better relationships among all governments may occur and foster

improved public policy.

PRESCRIPTIVE RECOMMENDATIONS

In order to foster improved relationships between tribes and the federal and state governments there need to be at least three actions taken. First, there needs to be better intra-sovereign collaboration by agencies within the federal

government. Second, the federal government should take the lead in fostering better relationships among sovereigns in solid waste management, especially building partnerships. Third, states need to have more formal relationships that recognize tribal sovereignty. Such recognition promotes respect between

sovereigns. At the level of policy action, such recognition promotes good will between peoples where agreements can be accomplished. Finally, tribes are

making considerable improvement in the area of solid waste management through the implementation of innovative approaches they have developed.

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268 Administrative Theory & Praxis Vol. 23, No. 2

REFERENCES

Aufrecht, S. (1999). Missing: Native American governance in American public administration literature. American Review of Public Administration, 29,

370-390.

Cohen, F. (1982). Handbook of federal Indian law. Charlottesville, VA: LEXIS Law

Publishing Co.

Indian country, 18 U.S.C.1151. (1988).

Federally recognized tribes, 25 C.F.R. Part 83. (1997).

Resource Conservation and Recovery Act, 42 U.S.C.A. 6921-6992k. (1976).

U.S. Department of Commerce. (1990). American Indian and Alaska Native areas.

Washington, D.C: Bureau of the Census.

U.S. Department of Commerce. (1999). Census bureau facts for features (Publication No. CB99-FF.14). Washington, DC: Bureau of the Census.

U.S. Department of the Interior. (1998). American Indians and Alaska Natives.

Washington, D.C: Office of American Indian Trust.

Witmer, R. & Corntassel, J. (1996). Gambling with the future: Political behavior and

the role of economic development on American Indian homelands. [Paper delivered at the annual meeting of the American Political Science Association.]

San Francisco, CA.

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