CHAPTER 18 ENVIRONMENTAL PERMITTING, TRIBAL "TAS" STATUS UNDER FEDERAL ENVIRONMENTAL LAWS AND IMPACTS ON MINERAL DEVELOPMENT

• Jurisdiction: United States

Natural Resources Development in Indian Country
(Nov 2005)
CHAPTER 18
ENVIRONMENTAL PERMITTING, TRIBAL "TAS" STATUS UNDER FEDERAL ENVIRONMENTAL LAWS AND IMPACTS ON MINERAL DEVELOPMENT
William C. Scott
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico

Mr. Scott is a shareholder in the Albuquerque, New Mexico office of Modrall, Sperling, Roehl, Harris & Sisk, P.A. A native of New Mexico, Mr. Scott received his B.A. degree from Georgetown University in 1982 and his J.D. degree from the University of New Mexico School of Law in 1985 where he served on the Editorial Board of the Natural Resources Journal. He practices primarily in the areas of environmental, natural resources, and Indian law.

Mr. Scott is a member of the Natural Resources, Energy and Environmental Law Section and the Indian Law Section of the State Bar of New Mexico. He is also a member of the Section of Environment, Energy and Resources and Section of Litigation of the America Bar Association. Mr. Scott is a frequent speaker at seminars addressing environmental and natural resources law issues and has published a variety of articles on environmental law topics.

I. INTRODUCTION:

This Nation's major federal environmental laws were originally drafted to promote a federal-state partnership in environmental regulation. The federal government established basic standards and then delegated the authority to implement and enforce those standards to the states. As originally drafted, the major federal environmental laws did not expressly provide a role for Indian tribes in this regulatory scheme.

Beginning in the late 1970s, Congress embarked on a series of amendments of the major federal environmental laws which gradually included Indian tribes in the regulatory partnership. ¹ By 1990, several federal environmental laws included provisions authorizing the United States Environmental Protection Agency ("EPA") to treat qualifying Indian tribes in a manner similar to a state for purposes of delegation of program authority. ² Tribes that are approved for treatment as a state ("TAS") status may develop and implement regulatory standards and programs that impact sources or activities both inside and outside of Indian country. ³ A qualifying tribe is not required to receive delegation of all permitting or regulatory programs under a given statutory scheme. Such a tribe may, for example, elect to obtain delegation of authority under the Clean Water Act ("CWA") to establish water quality standards, but not authority for a National Pollution Discharge Elimination System ("NPDES") permitting program. In such a case, EPA would administer the NPDES permitting for sources determined to be within the jurisdiction of that tribe. Thus, within Indian country, both a tribe and EPA may have a direct role in permitting and regulating a mineral development project. Tribal regulatory programs also may impact sources outside of Indian country. Tribal water quality standards adopted under the Clean Water Act, for instance, might impact the activities of an upstream discharger, even though that discharger is located outside of the tribe's reservation. Given these impacts, mineral developers must carefully evaluate the TAS status of tribes in the proximity of a mineral development project and determine which regulators (federal, state, and/or tribal) may exercise jurisdiction over that project.

This paper provides an overview of the TAS provisions in the Safe Drinking Water Act ("SDWA"), ⁴ the CWA, ⁵ and the Clean Air Act ("CAA"), ⁶ and the relative roles of the tribal, state, and federal governments in environmental permitting and enforcement on and near Indian country. Part II of the paper begins with a brief historical overview of the development of some fundamental principles of federal Indian law. The remainder of Part II then discusses the historic federal-state environmental partnership and the emergence of the TAS provisions. Part III of the paper reviews the general standards that tribes must meet to qualify for TAS status and the differences in the scope of jurisdiction accorded to qualifying tribes under the SDWA, CWA and CAA. Part IV of the paper addresses a variety of legal and practical problems associated with TAS provisions.

II. FEDERAL ENVIRONMENTAL LAWS AND THE EMERGING ROLE OF INDIAN TRIBES:

A. Brief Historical Overview of Federal Indian law

Indian tribes "have occupied an important, but often ill-defined, position in our constitutional system of government from the outset of the Republic." ⁷ While Indian tribes have long been recognized as "distinct, independent political communities," ⁸ federal Indian policy has historically "vacillated between two different and irreconcilable visions. In one vision, the federal government has supported the tribal right to exist as culturally distinct self-governing communities; in the other vision the federal government has suppressed tribal cultures and promoted the assimilation of Indian people into the larger American society." ⁹ An understanding of that historical background provides a useful backdrop for understanding the status of tribes within the federal environmental regulatory scheme.

1. Treaty Era

Through approximately 1871, the United States treated Indian tribes as foreign sovereigns having authority over both their land and people. In three significant opinions during this period, ¹⁰ the Supreme Court announced three general principles which continue to have force today in evaluating jurisdictional power on Indian lands. First, the Court recognized broad federal power over Indian affairs and Indian lands, and found that there had been no general federal cession to states of power over Indians. ¹¹ Second, the Court declared that the relationship between the United States and tribes was that of a "ward to his guardian." ¹² This trust relationship includes a federal power to control Indians' alienation of their lands and a concomitant federal trust obligation to protect tribal property. Third, the Court acknowledged tribes' sovereign power over their members and lands unless divested by federal action or voluntarily relinquished by the tribe. ¹³

2. Allotment Era

Between roughly 1871 and 1928, federal Indian policy sought to dismantle Indian reservations, allot reservation land in individually owned tracts, and gradually terminate the trust relationship with respect to Indians and their lands. The General Allotment Act of 1887 ¹⁴ was the most commonly used statute to accomplish those goals. Under that Act, reservation lands were opened for allotment and the Secretary of the Interior was authorized to negotiate with tribes for purchase of lands that were not allotted to tribal members. Indians on individual allotments were subjected to civil and criminal jurisdiction of the state or territory in which they resided. The individual allotments were subject to a trust for a period of at least twenty five years. At the end of that trust period, the restrictions on alienation would be removed and the land would be patented to the individual Indians in fee. The General Allotment Act and other similar acts resulted in the breakup of many large reservations and the creation of "checker boarded" areas which raise title and jurisdictional issues to this day.

3. Indian Reorganization Era

From the late 1920's through the mid 1940's, federal Indian policy shifted away for allotment and toward strengthening of tribal governments. The Indian Reorganization Act of 1934 ¹⁵ prohibited further allotment of lands, indefinitely extended restrictions on alienation of existing allotments and provided models for creation of tribal governments along the lines of modern corporations. ¹⁶

4. Termination Era

Between the mid 1940s and 1961, federal Indian policy swung back toward termination era notions. During this period, some federally recognized Indian tribes were "terminated," ending both their existence as tribes and any special status or services resulting from that tribal existence. ¹⁷ Congress also enacted the Indian Claims Commission Act of 1946, ¹⁸ which created a procedure for final resolution of tribal claims against the United States for loss of lands, and Public Law 280, which provided a mechanism for states to assume civil and criminal jurisdiction in "Indian country." ¹⁹ Public Law 280 ceded civil and criminal jurisdiction over Indian country to five states automatically ²⁰ and provided procedures for other states to assume such jurisdiction.

5. Self-Determination Era

In the early 1960s, federal Indian policy shifted away from notions of termination and again began to promote tribal governments. Presidential proclamations during this era repeatedly announced a federal policy that "stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership and self help." ²¹ The amendments to federal environmental laws authorizing tribes to be treated in a similar manner as a state for purposes of delegation of program authority are an outgrowth of this self-determination policy.

B. The Federal-State Partnership and the Emergence of TAS Provisions:

Most major federal environmental laws represent an exercise in cooperative federalism. The federal governmental establishes national pollution control standards and environmental regulatory programs. The states, in turn, are delegated authority to enforce those standards and implement those programs. When it enacted many of the major federal environmental laws in the early 1970's, Congress did not expressly provide a role for Indian tribes in this regulatory scheme or address implementation of those statutes within Indian country. Not surprisingly, Congress's failure to specifically address the role of tribes led to disputes as to the respective powers of the states, the EPA and the tribes to regulate within Indian country. ²²

By the late 1970s, EPA had staked out its position...