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Can a company ship, sell, or offer for sale conventional gasoline to a retailer or wholesaler operating on an Indian Reservation in an ozone nonattainment area which has been opted-in by the state? Can a company sell conventional gasoline to a wholesaler

The Clean Air Act (CAA) specifies the areas that must be subject to the reformulated gasoline (RFG) program. These "covered areas" are: (1) the nine major metropolitan areas with the worst (highest) ozone levels; and (2) any area reclassified as a severe ozone nonattainment area (effective one year after reclassification). See CAA section 211(k)(10)(D). This statutorily-prescribed component of the RFG program applies with equal force to all covered areas, including all affected State and Tribal areas.

The CAA also allows the "Governor of a State" to voluntarily "opt-in" and subject any marginal, moderate, serious or severe ozone nonattainment area in the State to the RFG program. See CAA section 211(k)(6). As explained in the discussion below, a Governor's application to opt-in to the RFG program includes all affected ozone nonattainment areas within the State's jurisdiction but does not include any lands within the jurisdiction of a Federally recognized Indian tribe.

The term "State" is specifically defined in section 302(d) of the CAA and does not include Indian Tribes. Rather, the term "Indian tribe" is independently defined in section 302(r) to include any Federally recognized "tribe, band nation, or other organized group or community, including any Alaska Native village."11 Compare also CAA § 302(b)(1)-(4) with CAA § 302(b)(5).

Several other provisions of the CAA evince congressional intent not to treat Federally recognized Indian Tribes as subdivisions of States under the CAA. For example, section 164(c) provides that "[l]ands within the exterior boundaries of reservations of federally recognized Indian tribes may be redesignated" for purposes of the Prevention of Significant Deterioration of Air Quality program "only by the appropriate Indian governing body." See also CAA § 164(e). Section 301(d)(2) of the CAA authorizes EPA to issue regulations specifying those provisions of the CAA for which it is appropriate "to treat Indian Tribes as States."12 Hence, section 301(d) of

In addition, Federal Indian law and policy direct EPA to treat Tribes as sovereign governments not as subdivisions of States. Settled principles of Indian law provide that "States are generally precluded from exercising jurisdiction over Indians in Indian country unless Congress has clearly expressed an intention to permit it." Washington Department of Ecology, 752 F.2d at 1469-1479 (citations omitted); see also United States v. Mazurie, 419 U.S. 544, 556 (1975) (the inherent sovereign authority of Indian Tribes extends "over both their members and their territory"); Montana v. United States, 450 U.S. 544, 556-557 (1981) (Tribes generally have extensive authority to regulate activities on lands that are held by the United States in trust for the Tribe); Montana, 450 U.S. at 566 (a Tribe "may...retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on or welfare of the tribe").

Federal and Agency Tribal policy also direct EPA to treat Tribes as sovereign governments. On January 24, 1983, the President issued a Federal Indian Policy stressing two related themes:
(1) that the Federal government will pursue the principle of Indian "self-government" and (2) that it will work directly with Tribal governments on a "government-to-government" basis. An April 29, 1994 Presidential Memorandum reiterated that the rights of sovereign Tribal governments must be fully respected. 59 FR 22,951 (May 4, 1994).

EPA's Tribal policies commit to certain principles, including the following:

EPA recognizes Tribal Governments as sovereign entities with primary authority and responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal Governments as the independent authority for reservation affairs, and not as the political subdivisions of States or other governmental units.

* * * * * * * *

In keeping with the principal of Indian self-government, the Agency will view Tribal Governments as the appropriate non-Federal parties for making decisions and carrying out program responsibilities affecting Indian reservations, their environments, and the health and welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally involved interests and/or participation of State Governments, EPA will look directly to Tribal Governments to play this lead role for matters affecting reservation environments.

- - potential Tribal jurisdiction under the CAA over areas that lie outside the exterior boundaries of a reservation, upon a fact-based showing of a Tribe's inherent authority over sources located on such lands. See 59 FR 43956, 4395843960
(Aug. 25, 1994).

November 8, 1984 "EPA Policy for the Administration of Environmental Programs on Indian Reservations"; Policy Reaffirmed by Administrator Carol M. Browner in a Memorandum issued on March 14, 1994.

Accordingly, a Governor's request to opt-in to the RFG program does not bind areas within the jurisdiction of Federally recognized Indian Tribes. The "opt-in" portion of the RFG program is voluntary and based on an application by the Governor of a State. Treating a request by a Governor of a State to voluntarily opt-in to the RFG program as binding on areas within the jurisdiction of Federally recognized Indian Tribes would fundamentally be at odds with the voluntary premise of the opt-in program, in light of other provisions of the CAA, and Federal Indian law and policy that do not treat Tribes as subdivisions of States.

Federally mandated and implemented fuels programs apply to areas within the jurisdiction of Federally recognized Indian Tribes. See 59 FR 43960-61. Thus, areas within Tribal jurisdiction that are located within the nine statutorily prescribed covered areas are subject to the RFG regulations, and other areas within Tribal jurisdiction are subject to the anti-dumping regulations. However, where an area within Tribal jurisdiction is not located within one of the nine statutorily-prescribed covered areas: (1) the sale of conventional gasoline to a retailer or distributor operating within the jurisdiction of a Federally recognized Indian tribe is not prohibited, even if surrounded by a State opt-in area; and (2) the sale of conventional gasoline intended for sale in areas within Tribal jurisdiction to a distributor located within a State opt-in area but outside the Tribal area is also not prohibited. All conventional gasoline is required to be accompanied by product transfer documents that identify it as conventional gasoline not to be used in a RFG covered area. See 40 CFR § 80.106(a)(1)(vii).

Finally, any Tribes interested in opting in to the RFG program for areas within their jurisdiction should contact Joanne Jackson Stephens at (303) 668-4276. As noted, EPA has authority to treat Federally recognized Tribes in the same manner as States for CAA programs and has already proposed to do so for virtually all CAA programs including RFG.(1/9/95)

11 The Department of the Interior periodically publishes a list of Federally recognized Tribes. See 58 FR 54364 (Oct. 21, 1993).

12 Further, section 301(d)(2)(B) addresses the potential jurisdictional scope of the resulting Tribal CAA program submittals, authorizing EPA to treat Tribes in the same manner as States for "the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction." EPA has proposed to interpret section 301(d) and other provisions of the CAA as granting Tribes--approved by EPA to administer CAA programs in the same manner as States--authority over all air resources within the exterior boundaries of a reservation for such programs. EPA has explained that "[t]his grant of authority by Congress would enable such Tribes to address conduct on all lands, including non-Indian owned fee lands, within the exterior boundaries of a reservation." EPA also proposed to interpret the language in section 301(d)(2)(B) providing for Tribal management and protection of air resources in "other areas within the Tribe's jurisdiction" to authorize the CAA provides for treating Tribes in the same manner as States, not as governmental subdivisions of States. EPA has issued proposed rules that would treat Tribes in the same manner as States for virtually all CAA programs. See 59 FR 43956 (Aug. 25, 1994).

This question and answer was posted at Consolidated List of Reformulated Gasoline and Anti-Dumping Questions and Answers: July 1, 1994 through November 10, 1997 (PDF)(333 pp, 18.17 MB, EPA420-R-03-009, July 2003, About PDF)