Law & Policy Projects

Above from left: Home heating crisis, Western Agency (Slate); Navajo Nation Clean Water Access (Urban Institute); Out of Control Trash Dumping (Navajo Times); Uranium Mine tailings (EPA).

Below are Diné Nihi Kéyah Project sustainable development law seminar subjects, and public policy and extern law school projects, that are being undertaken as of January 2023 with the Elizabeth Haub School of Law at Pace University; the Land Use Law Center at Pace University; American University Washington School of Law; and the Capstone Project of the M. Sc SEDV program, University of Calgary, School of Public Policy. Youth envisioning components are assisted by Diné College Land Grant Office and other partners through Áłchíní bizaad íílí-Envisioning the Navajo Nation 102 Years from Now youth-families-leaders planning forums.

1. Capstone Project – Navajo Nation Land Planning

In 2022, a Masters of Sustainable Energy Development student at the University of Calgary began researching Integrated Resource Land Plans (IRMPs) and Community Land Use Plans (CLUPs) as mediums provided by the U.S. federal and Navajo Nation tribal governments respectively for tribal community voices to be heard in land planning. The research is part of an academic-industry partnered Capstone project. The student, Kelley Rutledge, surveyed CLUPs and draft IRMPs available to the public. On August 6, 2023, Kelley made this presentation when her research was completed.

Notes:

Single-purpose, time-limited leases and permits were established by the federal government as its land use regulatory system on both tribal and public lands in the early 20th century. As early as 1960, the federal government saw that the single use approach did not work, and began multi-use approaches to public land management. Multiple Use Sustained Yield Act of 1960 expanded single tract public land uses to multiple uses in forests, calling for public lands to be “utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions.” This culminated in the Federal Land Policy and Management Act (FLPMA) of 1976 (43 U.S.C. §§ 1 — 3208).

The 1960 Sikes Act further allowed partnered multi-use management to generate income, build community and conserve forests on “military reservations.”

In 1988, the BIA Integrated Resource Management Planning (IRMP) Initiative extended the integrated management concept to tribal lands, later codified in the National Indian Forest Resources Management Act (1990) (NIFRMA) (25 U.S.C. § 3101-3120) and the American Indian Agricultural Resource Management Act (1993) (AIARMA) ( 25 U.S.C. §§ 3701 — 3746)). Emphasis changed from single use to a whole system approach — comprehensive, integrated planning that encompasses natural, cultural, economic and social resources for each reservation according to tribal community vision for the future. The hope was that each tribe would assert its own cultural imperatives and establish unique flexible, self-renewing, and multi-use management approaches. However, tribes including the Navajo Nation have not been able to create unique IRMP all these decades. For the Navajo Nation, the primary barrier has been establishing a community-driven integrated tribal vision.

2. Options for Tribal Conservation Planning

The current federal administration has promised to “provide tribes with a greater role in the care and management of public lands that are of cultural significance to Tribal Nations.” Federal government agencies and the wider conservation community have expressed need to recognize Indigenous approaches to biodiversity and the climate as the original and best stewards of their natural resources. It’s time for action to direct resources to support these efforts and enable tribes to execute a conservation vision of their choosing, both as a matter of tribal sovereignty and effectiveness for overall conservation. Please read The Biden Administration Must Prioritize Indigenous Leadership (CAP Jan 26, 2021). Please also read this community statement on indigenous ecological knowledge, which distinguishes community from tribal government.

This Project will:

Map current federal conservation laws that apply on the Navajo Nation;
Map laws that otherwise require land use conservation plans;
Map what agencies are responsible for enforcing each conservation law (federal and tribal);
Map what is legally required to be contained in a conservation land use plan;
Assess options for tribal communities to self-steward, and otherwise plan conservation as communities pursuant to their own visions.

3. Implementation of the 2000 Navajo Trust Leasing Act

The Navajo Trust Leasing Act (NTLA) at 25 U.S.C. § 415(e) authorizes the Navajo Nation to issue surface land use leases for purposes authorized under 25 U.S.C. 415(a) without the approval of the Secretary of the Interior, provided the lease is executed under tribal regulations approved by the Secretary. Congress enacted the NTLA in 2000, to “establish a streamlined process for the Navajo Nation to lease trust lands without having the approval of the Secretary of the Interior for individual leases,” and “[t]o maintain, strengthen, and protect the Navajo Nation’s leasing power over Navajo trust lands.” Public Law 106-568 § 1202, 114 Stat. 2933 (Dec. 27, 2000). See also S. Rpt. 106-511 (Oct. 31, 2000). The NTLA requires the Secretary to approve tribal regulations if the tribal regulations are consistent with the Department’s leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the Act. In 2007, the Bureau of Indian Affairs (BIA) approved the Navajo Nation’s tribal business regulations under the NTLA. In 2014, the BIA approved the Navajo Nation’s tribal General Leasing Regulations under the NTLA. With the 2014 approval, the Tribe is authorized to enter into all NTLA-covered surface leases without BIA approval.

Please see this 2019 American Bar Association article by our project attorney Josephine Foo, discussing financial and infrastructure issues experienced by the Navajo Nation in the NNTLA’s implementation — The HEARTH Act of 2012 and the Navajo Leasing Act of 2000: Financial and Self-Determination Issues, (ABA Section of Environment, Energy and Resources, Native American Resources Committee).

This project will identify and gather:

Applicable Navajo Nation laws;
Federal lease and permit laws that continue to be fully applicable on the Navajo Nation;
Navajo Nation’s delegation of pieces of land use management to its different tribal programs and offices;
Land use management services that continue to be directly provided by the Bureau of Indian Affairs;
Status of community cultural land practices within the framework;
Tribal community acceptance and impact;
Existing assessments of the implementation.

4. Navajo Hopi Settlement Act Communities

In 1974, Congress passed the Navajo-Hopi Settlement Act requiring division of lands disputed by the Navajo Nation and the Hopi Tribe, and requiring citizens of one tribe, living on the other tribe’s lands, to relocate. In 1966, a development freeze was imposed on the Navajo portion that lasted for 40 years. The freeze devastated a 1.6-million-acre area encompassing nine Navajo chapters. Navajos in these areas were either trapped in poverty or effectively forced to leave their lands to find employment and decent housing. There continue to be generations-long problem of growth and economic development of entire swaths of sovereign lands.

This project will:

Map the nine Navajo partitioned communities and new communities established by the Act;
Map the federal and tribal laws that presently apply to the area;
Map the impact of the Navajo Hopi Settlement Act Office;
Assess the draft IRMP and recent grazing regulations against community visions

5. Local Tribal Governance

The 1975 Indian Self-Determination and Education Assistance Act (ISDEAA), Pub. L. 93-638, gave Indian tribes the authority to contract with the Federal government to operate programs serving their tribal members and other eligible persons. The signing and passage of the ISDEAA meant Congress understood the inherent right tribes possess to set their destiny through tribally run programs for health care, roads, and any other program operated by the federal government to the benefit of tribal nations. Under the ISDEAA any federal program, function, service, or activity (PFSA) must transfer their operations to tribes upon formal request for the benefit of the tribe. This mandate is legally structured in the form of a contract defined in ISDEAA or a “638 contract.” See this brief explanation put online by a law firm specializing in helping tribes enter 638 contracts.