CHAPTER 14 TRIBAL CIVIL REGULATORY JURISDICTION TO ENFORCE ENVIRONMENTAL LAWS
| Jurisdiction | United States |
(Feb 1989)
TRIBAL CIVIL REGULATORY JURISDICTION TO ENFORCE ENVIRONMENTAL LAWS
B. Kevin Gover
Gover, Stetson, Williams & West, P.C.
Albuquerque, New Mexico
The development of reservation economies has largely been controlled by federal policy historically geared to bring tribal resources to the nation's marketplace. While large quantities of tribal natural resources have been lost since the European arrival, tribal governments are presently in an era of reversing tribal resources loss and are moving towards preserving the integrity of a tribal land base. An essential means by which Indian tribes will maintain the integrity of tribal lands is through environmental regulation. As tribes have begun developing natural resources and promoting economic development on tribal lands, questions of jurisdictional authority over environmental protection programs within Indian country1 have arisen.
Federal environmental regulatory laws generally require the Environmental Protection Agency ("EPA"), to establish standards for various sources of pollution, enforce standards through a permitting system, and where a state so requests, delegate primary enforcement authority to the state. In general, no person or activity is beyond the reach of federal environmental statutes or outside the jurisdiction of the state in which the person conducts his activity. However, special rules apply when the regulated person is an Indian or Indian tribe or the regulated activity takes place within Indian country. This paper will discuss questions concerning the applicability of federal environmental
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laws to Indians and Indian country, the scope of tribal and state authority to enforce environmental laws within Indian country, and the current status of environmental laws and policy.
I. APPLICABILITY OF FEDERAL ENVIRONMENTAL LAWS TO INDIANS AND INDIAN LANDS
Indian tribes have been characterized as "domestic dependent nations"2 which possess all powers of government that have not been explicitly removed by the United States or held inconsistent with a tribe's status as a domestic dependent nation.3 Based on this unique political status, Congress has full plenary power to legislate with respect to Indians and Indian tribes.4 Thus, the initial inquiry is whether federal environmental regulatory statutes apply to Indians, Indian tribes, and Indian lands.
Congressional power to include Indians and tribes within the scope of federal statutes is unquestionable.5 However, whether a specific federal statute of general applicability applies to Indians and tribes depends on the intent of Congress.6 General federal laws apply within Indian country and are enforceable against Indians and Indian tribes where the statute expressly mentions Indians and tribes.7 In most instances interpretative questions arise when federal laws do not specifically refer to Indians and tribes, but instead appear to apply across the board to all persons or property.8 In resolving these questions against the backdrop of tribal sovereignty, the United States Supreme Court generally requires that
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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.9 Special considerations are triggered when the subject of the enactment involves treaty rights and areas traditionally left to tribal self-government.10 The following authorities establish and apply the analysis used by courts to resolve issues regarding the applicability of general federal laws to Indians.
A. The General Rule.
Where a general federal law fails to expressly include or exclude Indians, Indian tribes, or Indian property, courts will hold the law applicable if the nature of the legislation, or the congressional purpose underlying the enactment, requires national or uniform application.
In Federal Power Commission v. Tuscarora Indian Nation,11 the State of New York applied to the Federal Power Commission (the "FPC") for a license to construct a power project that would require flooding of lands owned in fee simple by the Tuscarora Indian Nation (the "Tuscaroras"). The Tuscaroras intervened in the administrative proceedings claiming that the State lacked authority to acquire tribal lands for the project. The FPC issued an order granting the license.12 On appeal by the Tuscaroras to the United States Court of Appeals for the District of Columbia, the proceedings were remanded to the FPC.13 Following a second order from the FPC, the Court of Appeals instructed the FPC to amend the license to exclude the power of the State to condemn lands belonging to the Tuscaroras.
On certiorari, the United States Supreme Court held that lands owned in fee simple by the Tuscaroras were subject to condemnation by a licensee
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under authority granted by the Federal Power Act. The Court first ruled that because the Tuscaroras owned their reservation in fee simple, the lands at issue were not "reservation" lands within the meaning of the Federal Power Act. Thus, the FPC was not constrained by 16 U.S.C. Section 797(e), which required that before a license could be issued the FPC must find that "the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired...."14
The Court next considered the issue of whether the condemnation authority contained in the Federal Power Act applied to Indian lands. The Tuscaroras argued that, as a general act of Congress, the provisions and eminent domain powers of the Federal Power Act did not apply to Indians or tribal lands. In rejecting this argument, the Court stated:
The Tuscarora Indian Nation relies heavily upon Elk v. Wilkins. It is true that in that case the Court...said: "Under the constitution of the United States, as originally established...General Acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them." However that may have been, it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests.15 (Citations omitted; emphasis added.)
The Court relied heavily on a series of cases which held that Indians generally are subject to federal tax laws.16 Based on its prior analysis in these tax cases, the Court then stated:
The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission, and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been
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shown, the Act specifically defines and treats with lands occupied by Indians — "tribal lands embraced within Indian reservations." The Act gives every indication that, within its comprehensive plan, Congress intended to include lands owned or occupied by any person or persons, including Indians. The Court of Appeals recognized that this is so. Section 21 of the Act, by broad general terms, authorizes the licensee to condemn "the lands or property of others necessary to the construction, maintenance, or operation of any" licensed project. That section does not exclude lands or property owned by Indians, and, upon the authority of the cases cited, we must hold that it applies to these lands owned in fee simple by the Tuscarora Indian Nation.17 (Citations omitted.)
B. Exceptions To the General Rule.
Although treaty rights may be unilaterally abrogated by Congress,18 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;19 (2) specific laws prevail over general laws;20 and (3) ambiguities or doubts must be construed in favor of the Indians.21 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.22
In Donovan v. Navajo Forest Products Industries,23 the Department of Labor inspected the facilities of Navajo Forest Products Industries ("NFPI"), and issued a citation to NFPI under the Occupational Safety and
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Health Act of 1970 ("OSHA").24 Although NFPI conceded that it fell within OSHA's definition of "employer," NFPI contended that under the terms of a treaty the Secretary lacked jurisdiction over Indian tribal enterprises on tribal land.25 The Occupational Safety and Health Review Commission (the "Commission") adopted the conclusion of an Administrative Law Judge (the "ALJ"), that the Secretary of Labor lacked jurisdiction. The Secretary petitioned for review to the Tenth Circuit Court of Appeals.
The Tenth Circuit Court of Appeals agreed with the conclusions of both the ALJ and the Commission and held that:
OSHA did not apply to NFPI because there exists no legislative intent in OSHA or its legislative history to abrogate the treaty entered into between the United States government and the Navajo Tribe; thus to apply OSHA to NFPI would violate the Navajo Treaty.26
As support for the position that OSHA applied to NFPI, the Secretary relied heavily on the Tuscarora language concerning the application of general federal statutes to Indians.27 The court distinguished Tuscarora stating that:
Tuscarora did not, however, involve an Indian treaty. Therein lies the distinguishing feature between the case at bar and the Tuscarora line of cases, which stand for the...
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