PREMIUM LEGAL RESOURCES
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by Lynn H. Slade and Walter E. Stern
Native American tribes play an increasingly critical role in regulating
the environment on Indian lands. As tribes' regulatory muscles grow--
often with the blessing of the federal government--the regulated
community must learn to adapt not only to different regulatory standards
and procedures, but also to a different legal system.
In addition, the regulated community must be mindful that, as the power
of tribes to regulate increases, so will the potential for overlap and
conflict among tribal, state, and federal regulations.
A Balance of Powers
Tribal environmental regulation potentially can affect all businesses in
and around Indian lands or reservations. Tribes have comprehensive power
over their members on reservations or on other tribal lands. However,
while tribes may have regulatory powers over non-Indians and Indian
members of other tribes in certain circumstances, those powers are not
clearly defined. Generally, tribal powers derive from three major
sources: inherent tribal authority akin to sovereign powers of states or
the federal government; treaties with the United States; and federal
statutory delegations of authority to tribes. However, the Supreme Court
also has found certain limitations on tribal power implicit in the
tribes' "dependent" status in the federal system. For example, tribes
lack inherent power to exercise criminal jurisdiction over non-Indians
(see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)). Tribal
power over non-Indian activity on private lands within a reservation
generally has been limited to that necessary to protect tribal members'
health and safety (see Montana v. United States, 450 U.S. 544 (1981)).
Federal power over tribes, their lands, and non-Indians dealing with
tribes is broad. Consequently, an express federal statute allocating
governmental authority over specific activities will control. Moreover,
inherent tribal authority may be preempted by a comprehensive federal
regulatory scheme (see Northern States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Community, 991 F.2d 458 (1993)).
State power over activities on Indian reservations generally is narrow.
States may exercise power conferred by express federal delegation or
when, under a balancing analysis, state regulatory interests are strong
and federal or tribal interests are comparatively weak. Unfortunately
for tribes and business interests, the Supreme Court has complicated the
assessment of competing claims of states and tribes for power over
Indian lands activities by laying down subjective tests to resolve such
conflicts. Even when states implement a federal environmental program
under "agreement state" status, their power may not reach tribal lands.
Tribal land ownership is an additional and important determinant of
which sovereign will have regulatory power. Complex, often
"checkerboarded" patterns of land ownership in Indian country further
complicate jurisdictional predictions. Generally, tribal power will be
strongest over tribally-owned "trust or restricted" land, lands within a
formally established reservation, or lands that are within a block of
solidly Indian-owned and Indian-occupied lands. Tribal power will be
weaker (if existent), and state power correspondingly stronger, over
non-Indian fee lands, Indian lands outside reservation boundaries, or
reservation lands within a "checkerboarded" area with dense non-Indian
development (see Brendale v. Confederated Tribes & Bands of Yakima
Indian Nation, 492 U.S. 408, 427 (1989)). Evaluating tribal
environmental regulatory power entails analyzing these sources and
limitations of tribal power in the context of the specific tribe and
regulatory power involved. The analysis should take into account whether
federal statutory delegations or landholding or demographic patterns
suggest state or federal primacy.
Tribes generally have inherent power to protect members' health and
safety by implementing zoning and regulating activities affecting
environmental quality on tribal lands. Under the rule in Montana v.
United States (450 U.S. 544, 547 (1981)), tribes' inherent authority may
support tribal regulation of non-Indian activities affecting reservation
water quality, and other areas of environmental concern (see
Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir.),
cert. denied, 459 U.S. 977 (1982) (shoreline protection ordinance);
Lummi Indian Tribe v. Hallauer, 9 Ind. L. Rep. 3025, 3026 (W.D. Wash.
1982) (tribal sewage treatment)). Consequently, businesses on Indian
reservation lands should identify and understand any potentially
applicable tribal regulation.
Congress has acted under several federal environmental statutes to
authorize the Environmental Protection Agency (EPA) to delegate to
Indian tribes specific enforcement and regulatory authority to the same
or a similar degree as is delegated by the EPA to the states. Because a
growing number of tribes is seeking such delegation, activities on
Native American lands may be governed by tribal programs that have the
backing of federal law. Potentially applicable federal environmental
protection laws include the Clean Water Act, the Clean Air Act, and
The EPA has implemented an "Indian policy" that incorporates federal
policies of tribal self-determination in its environmental regulation on
Indian lands. Announced in November of 1984, the policy seeks to expand
tribal involvement in EPA program implementation. The EPA Indian policy
has two major elements: first, the EPA or tribes, rather than states,
should implement federal environmental statutes on Indian lands; second,
where it is authorized, the EPA will cooperate with and assist tribes in
developing and implementing tribal programs under federal environmental
statutes. Consistent with these policies, the EPA has been influential
in urging Congress to enact statutory authority for tribes to assume
program implementation authority under EPA-administered environmental
Under the Clinton administration, the EPA has reaffirmed the Indian
policy and proposed the streamlining of procedures and creation of a
national Indian Program Office (59 Fed. Reg. 13820 (March 23, 1994); 59
Fed. Reg. 38460, 38461 (July 28, 1994)). The EPA must be viewed as a
strong proponent of tribal environmental regulation. As a result of its
efforts and policies, tribes will develop regulatory programs under
federal environmental statutes, and will obtain regulatory primacy under
The Clean Water Act (CWA) is the main instrument of federal policy
regarding water quality. It sets standards governing the water quality
that must be maintained or achieved in rivers and other navigable
waters, and requires dischargers into navigable waters to obtain
discharge permits imposing maximum levels of allowable pollutants.
Permits are tailored to achieve the applicable stream standards.
The 1987 amendments to section 518 of the Clean Water Act authorize the
EPA to delegate to a qualifying tribe regulatory authority--comparable
to that previously delegable only to states--to grant discharge permits
under the National Pollutant Discharge Elimination System (NPDES),
permits for dredging and filling under CWA 404, and to set water quality
standards under section 303 of the CWA (33 U.S.C. 1377 (1988); see 58
Fed. Reg. 67966-67985 (Dec. 22, 1993) (adopting final rule implementing
CWA tribal program regulations)). To obtain "treatment as state" (TAS)
status under the CWA, a tribe must meet criteria reflecting its ability
to effectively implement the program. Although the EPA may delegate CWA
program authority only over waters "within the area of the Tribal
Government's jurisdiction," approval of tribal water quality standards
under CWA 303 can affect upstream, off-reservation sources.
Precisely because of their effect on upstream, off-reservation sources,
tribal water quality standards under CWA 303 have generated controversy.
For example, the EPA has approved the tribal stream standards set by
three New Mexico pueblos that impact the Rio Grande in central New
Mexico. Litigation arising from the EPA's approval of the water quality
standards of one--the Pueblo of Isleta, which requires water clean
enough to support tribal ceremonial uses--has spawned a decision
generally affirming the EPA's power to approve tribal water quality
standards despite the potentially profound impact on upstream sources
(see City of Albuquerque v. Browner, No. 93-82-M (D.N.M., Oct 22, 1993),
on appeal, Tenth Circuit No. 93-2315). As in City of Albuquerque,
jurisdictional conflicts, compliance questions, and permitting issues
may arise when standards set by a tribe differ from those set by a state
that has concurrent jurisdiction over the same stream or body of water.
The Clean Air Act (CAA) is the principal federal statute regulating
emissions into the nation's air. It functions primarily by requiring
sources of air pollutants to obtain new source or operating permits. To
date, the CAA has been implemented either by the EPA or through state
regulation pursuant to an EPA-state agreement. In the CAA Amendments of
1990, Congress gave the EPA power to delegate to federally recognized
tribes considerable authority over air quality matters on Indian lands,
including over permit issuance (42 U.S.C. 7601 (D)(2) (1988 and Supp.
II 1990)). The 1990 amendments authorized the EPA administrator to treat
tribes as states whenever tribes are capable of carrying out those
functions "in a manner consistent with the terms and purposes of the
Act." The EPA has proposed regulations to implement the 1990 amendments
(59 Fed. Reg. 43956-43983 (Aug. 25, 1994)), but final regulations have
not been issued. Consequently, no tribe has yet been granted TAS status
under those provisions.
Tribes had limited powers under the CAA even prior to the 1990
amendments. The EPA had allowed the tribes to regulate indirectly
emissions from sources near the reservation by designating airshed
quality under the "prevention of significant degradation" standards of
the CAA (see Nance v. United States EPA, 645 F.2d 701 (9th Cir.), Crow
Tribe v. United States EPA, cert. denied sub nom., 454 U.S. 1081
(1981)). Nance raises concerns for "extra-territorial" environmental
regulation by tribes similar to those that arise under the CWA.
Under the Safe Drinking Water Act (SDWA) amendments of 1986, tribes may
be treated as states through provisions empowering the EPA to delegate
certain program authority (42 U.S.C. 300h-1e (1988); 40 C.F.R. 145
Subpart E (1994)). Consequently, if a tribe demonstrates its ability to
administer a program effectively, the EPA may delegate to the tribe
primary enforcement authority over underground injection well regulation
or other SDWA program enforcement.
Rights Under CERCLA
The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), also known as the "Superfund" statute, governs the cleanup of
certain designated sites that contain toxic or hazardous material. The
act authorizes tribes to be treated "substantially the same" as states
for some purposes, but it does not delegate to tribes authority as broad
as that delegated to states (Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. 9626 (1988)). Instead, CERCLA enumerates specific
areas of authorized delegation: receipt of notice of release of
hazardous substances, consultation with respect to formulation of
remedial action (but not initiation, development, and selection of
remedial actions to be undertaken on the reservation); formulation of
the National Contingency Plan; access to information concerning
hazardous substances maintained by operators of facilities; and
participation in disease and exposure registration related to toxic
materials. Consequently, the tribal role in Superfund remediation
remains relatively limited as compared to that of the states. However,
like states, tribes may assert natural resource damage claims under
The Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6901-6987
(1988)) does not expressly address whether Indian tribes have a role in
its administration. However, in recognition of federal enforcement
authority, one court has held that the EPA may refuse to certify a
state's RCRA program insofar as it would apply to Indian lands within
the state's borders (see Washington Dep't of Ecology v. United States
EPA, 752 F.2d 1465 (9th Cir. 1985)). Currently, the EPA retains RCRA
regulatory authority over Indian lands.
Tribes may, however, be held liable for RCRA violations for hazardous
waste sites on reservation lands. The Eighth Circuit has held that the
Oglala Sioux Tribe was amenable to suit under RCRA's private suit
provisions for damage caused by widespread RCRA violations on the
reservation, because the tribe's sovereign status carried with it the
responsibility to regulate dumping on the reservation (see Blue Legs v.
United States EPA, 668 F. Supp. 1329 (D.S.D. 1987), aff'd, 867 F.2d 1094
(8th Cir. 1989)).
How to Cope
The basic skills necessary to respond effectively to federal and state
environmental regulation apply to tribal regulation as well. The
regulated person or entity must understand thoroughly the applicable
tribal laws or council resolutions, tribal agency regulations, and the
tribal regulatory agency's personnel and policies.
Tribal regulation, however, may present some special considerations.
Generally, tribes enjoy immunity from suit without their consent and can
require that suits against them be brought in tribal courts.
Consequently, regulated companies often must enforce substantive and
procedural rights within tribal administrative or judicial systems. And,
after all tribal proceedings have run their course, it is unclear
whether federal court review will be available unless federal
administrative and/or judicial review is provided for in EPA-approved
plans delegating federal program authority to a tribe. Careful analysis
of the regulatory and juridical procedures that will apply in the event
of disputes with tribal authorities is important.
Lynn H. Slade and Walter E. Stern practice federal Indian natural
resources, and environmental law in Albuquerque, New Mexico.
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