CHAPTER 10 THINKING LIKE A MOUNTAIN ENVIRONMENTAL REGULATION ON INDIAN RESERVATIONS
| Jurisdiction | United States |
(May 1990)
THINKING LIKE A MOUNTAIN ENVIRONMENTAL REGULATION ON INDIAN RESERVATIONS
Gover, Stetson, Williams & West, P.C.
Albuquesque, New Mexico
INTRODUCTION
Federal environmental regulatory laws generally require the Environmental Protection Agency ("EPA") to establish standards for various sources of pollution, to enforce standards through a permitting system, and to delegate primary enforcement authority to the state. Special rules apply, however, when the regulated activity takes place within Indian country. Recent federal policies and laws increasingly permit the tribes to assume primary environmental law enforcement authority. As a result, the natural resource practitioner is presented with new challenges and opportunities that arise during the inception and development of the fledgling tribal environmental programs. The diversity and flexibility of such programs have the potential both to encourage and to frustrate those who will operate within their parameters.
I. JURISDICTION AND APPLICABLE ENVIRONMENTAL LAWS
One of the first difficulties encountered by natural resource practitioners whose clients do business on a reservation is to learn to appreciate the concept of tribal sovereignty and the attendant, complex jurisdictional rules. This difficulty was evident in recent years as increasing numbers of tribes began to impose taxes on various activities conducted on the reservation. In many cases, the new taxpayers fought the imposition of taxes because they believed the tribes did not have the authority to impose them; even when the taxing authority was established through the courts, taxpayers resisted, making broad references to justice, financial burdens, and constitutional rights. While the taxation controversy has been somewhat tempered, the nuances and parameters are still being litigated and negotiated, and tribal tax powers have yet to become fully understood and accepted.
Similar difficulties can be expected as tribes begin to exercise their rights to regulate activities affecting the reservation environment, and the first obstacle for a natural resource practitioner will inevitably be to come to understand and recognize the sources and scope of tribal authority in this developing arena. Today, such authority is often specified in the federal environmental laws themselves, but initially this was not the case. Even today, the nature and scope of tribal environmental regulatory authority is being defined in part by the courts, and the natural resource practitioner is well-advised to be familiar with precedent.
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Generally, tribes retain sovereign authority to regulate activities within Indian country,1 and this power extends to non-Indian activities on fee lands within reservations when those activities affect or threaten important tribal interests. In United States v. Mazurie,2 the United States Supreme Court addressed the question of whether Congress may properly delegate its regulatory authority to tribes. Relying on the Indian Commerce Clause3 and the "recognized relation of tribal Indians to the federal government," the Court upheld Congress' power to regulate liquor in Indian country.4 While the Tenth Circuit had characterized the tribal government as a "private, voluntary organization, which is obviously not a governmental agency," the United States Supreme Court characterized the tribes as:
unique aggregations possessing attributes of sovereignty over both their members and their territory; they are "a separate people" possessing "the power of regulating their internal and social relations."
Montana v. United States5 further defines the extent of tribal civil regulatory authority over non-Indians within reservation boundaries. The United States Supreme Court held that neither the Crow treaties nor inherent tribal sovereignty empowered the Crows to regulate non-Indian hunting and fishing on fee-patented land within the Reservation. Although the 1868 Treaty with the Crows arguably conferred upon the Tribe authority
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to control hunting and fishing on lands set aside for the Tribe, the Court ruled that this authority extended only to lands on which the Tribe exercises "undisturbed use and occupation," not to lands subsequently alienated and held in fee by non-Indians pursuant to the allotment acts.6 In rejecting the Crows' argument for tribal jurisdiction over non-Indian hunting and fishing on fee lands, the Court distinguished between tribal authority over Indians and over non-Indians. Relying on United States v. Wheeler,7 the Court held that:
[E]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Since regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the tribe bears no clear relationship to tribal self-government or internal relations, the general principles of retained inherent sovereignty did not authorize the Crow Tribe to adopt [the ordinance prohibiting non-Indian hunting and fishing]."8 (Citations omitted.)
Despite the sweeping nature of the foregoing proposition, the Court used equally broad language to describe the scope of jurisdiction retained by the tribes over non-Indians:
To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements. A tribe may also 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 the political integrity, the economic security, or the health or welfare of the tribe.9 (Citations omitted.)
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Several subsequent cases interpreting Montana have upheld tribal civil regulatory jurisdiction on fee lands over non-Indians in the context of tribal health and safety regulations10 and land use zoning.11 Last year, the United States Supreme Court rendered its decision in Brendale v. Confederated Tribes and Bands of Yakima Indian Nation,12 striking down tribal authority to zone fee lands owned by non-members within one portion of the reservation, and upholding tribal zoning authority over all land located within another portion of the reservation. The Justices wrote three opinions, with no majority agreeing on the rationale for either holding. The effect of Brendale on tribal civil regulatory jurisdiction remains uncertain.
Although Indian tribes have been characterized as "domestic dependent nations"13 possessing all powers of government not explicitly removed by the United States or inconsistent with a tribe's status as a domestic dependent nation,14 Congress clearly has full plenary power to legislate with respect to Indians and Indian tribes.15 However, for such legislation to apply clearly within Indian country and be enforceable against Indians
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and tribes, must expressly mention Indians and tribes.16 Interpretative questions arise when federal laws do not specifically refer to Indians and tribes.17
In resolving these questions against the backdrop of tribal sovereignty, the United States Supreme Court generally requires that Congress' intent to invade tribal rights and authority be clearly expressed in the legislative history or the surrounding circumstances, or by the existence of a statutory scheme requiring national or uniform application.18 Special considerations are triggered when the subject of the enactment involves treaty rights and areas traditionally left to tribal self-government.19 Although treaty rights may be unilaterally abrogated by Congress,20 three rules of construction have been applied by courts to determine whether Congress intended to abrogate Indian treaties: (1) repeals by implication are not favored;21 (2) specific laws prevail over general laws;22 and (3) ambiguities or doubts must be construed in favor of the Indians.23 If the application of a federal statute to Indians or tribes will result in an abrogation of rights reserved by treaty, courts will require a clear indication that Congress was aware of the statute's impact on treaty rights before the statute will be held to apply.24
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The complex and often unclear jurisdictional rules applicable to Indian country left the EPA unable to pursue its usual practice of delegating primary enforcement responsibility to states, but, until recently, none of the major federal regulatory statutes provided for such delegation to tribal governments. Over time, the EPA developed special rules and practices for environmental regulation on Indian reservations. The EPA's policy of working with tribal governments, even in the absence of explicit statutory authority, was specifically approved by the Ninth Circuit in Nance v. Environmental Protection Agency25 and Washington Department of Ecology v. U.S. Environmental Protection Agency.26
In November of 1984, the EPA issued the EPA Policy for the Administration of Environmental Programs on Indian Reservations (the "Indian Policy").27 The stated purpose of the Indian Policy is "to consolidated and expand on existing EPA Indian Policy statements in a manner consistent with the overall Federal position in support of Tribal 'self-government' and 'government-to-government' relations between Federal and Tribal Governments" and to improve the environmental quality on reservations.28 The Indian Policy clearly assumes that tribal governments should be the primary...
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