CHAPTER 19 RESOLVING JURISDICTIONAL DISPUTES IN TRIBAL ENVIRONMENTAL REGULATORY SYSTEMS

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 19
RESOLVING JURISDICTIONAL DISPUTES IN TRIBAL ENVIRONMENTAL REGULATORY SYSTEMS
LOIS WITTE Deputy Attorney General
Natural Resources Section Colorado Department of Law
Denver, Colorado

The Rocky Mountain Mineral Law Foundation

February 1989

INTRODUCTION

This paper will discuss some of the ways in which jurisdictional disputes over the implementation of environmental regulatory programs on reservations are likely to arise between states and tribes. In examining this issue, this paper will focus on the tribal assumption of federal water quality programs expressly authorized by the 1987 amendments to the Clean Water Act, "CWA," set out in the Water Quality Act of 1987,¹ and the 1986 amendments to the Safe Drinking Water Act, "SDWA."² These amendments authorize EPA to treat eligible tribes as states and to delegate primary enforcement responsibility over the regulatory programs authorized by these acts to tribes.

The paper focuses on these particular federal environmental statutes for several reasons. First, the United States Environmental Protection Agency, "EPA," has promulgated either draft, proposed or final rules, implementing the recent amendments to CWA and SDWA. These regulations are among the first regulations promulgated by EPA in response to the current federal trend to delegate environmental regulatory authority to tribes. As such they establish, in more detail than previously provided, the guidelines and structure under which EPA will work directly with Indian governments on a government-to-government basis and offer the first opportunity to closely examine both the transfer of environmental regulatory authority from federal or state governments to the tribes and the problems which may arise during the transfer.

Second, water quality issues are issues of critical concern to the tribes. In a 1986 EPA study which examined environmental quality issues on reservation lands, while tribes listed many areas of critical environmental concern, tribes voiced more concern

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over water quality issues than over other identified environmental problems.³

Third, water is a valuable resource shared in common by states and tribes. Without coordination, jurisdictional fights for control over the allocation, protection and use of this resource will pit states squarely against tribes. However, if states and tribes are successful in resolving their disputes over water quality administration, valuable groundwork will be laid which will facilitate cooperation in other environmental regulatory areas.

This paper will first identify the factors which lead to jurisdictional disputes over the regulation of environmental programs between states and tribes and will identify the general legal principles which are applied in resolving these disputes. Next, it will examine EPA's position on tribal jurisdiction over environmental programs on reservation lands in the absence of express congressional delegation to tribes. Third, it will examine the recent amendments to the CWA and the SDWA and the jurisdictional problems likely to arise under these amendments. Last, it will discuss the reasons why water quality disputes between tribes and states should be resolved without resorting to litigation and will also examine the appropriate role of the EPA in resolving disputes between states and tribes.

I. JURISDICTIONAL DISPUTES BETWEEN STATES AND TRIBES

1. Factors Contributing to Jurisdictional Disputes

Many factors contribute to jurisdictional disputes between tribes and states. Often reservations have complex land ownership patterns which can involve federal, state and tribal lands arranged in a so-called "checkerboard" pattern. Tribally-owned lands can abut lands owned by non-Indians or non-member Indians, lands managed by federal agencies or a stream-bed of disputed ownership. Outcomes of jurisdictional disputes can turn on the terms of individual treaties, statutes and agreements. In most instances, a situation-specific, case-by-case analysis of the conflict is required before a final decision on the jurisdictional conflict can be reached.

In addition to these commonly recognized factors, after attempting to find consistency in recent States Supreme Court decisions concerning Indian law issues, one commentator has suggested that the real factor influencing these decisions is the

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ratio of the Indian to non-Indian population residing on the reservation.⁴

Today the tough questions on Indian jurisdiction involve the sovereign authority of tribes to regulate non-Indians and their property on reservation lands. Courts have found that the inherent sovereign authority of a tribe may not extend to the activities of non-members of the tribe and tribes have lost some aspects of sovereignty in situations involving non-Indians.⁵ For example, tribes have no criminal regulatory authority over non-Indians.⁶ When and whether tribes retain inherent power to exercise civil authority over the conduct of non-Indians while regulating environmental programs on reservations is still to be determined.

2. General Legal Principles Applied in Analyzing Jurisdictional Disputes

The large number of Indian cases reviewed each year by the United States Supreme Court reveals the complexity of resolving jurisdictional disputes between states and tribes. And although there are numerous Supreme Court decisions which provide guidelines to be used in resolving these disputes, many of these guidelines appear contradictory and are subject to different interpretations by federal, state and tribal sovereigns due to the highly factual nature of the controversy and the different nuances which can color the court's opinions. Consequently, in spite of the high number of Indian jurisdiction cases decided by the United States Supreme Court each year, there has yet to emerge a clear answer to the many jurisdictional disputes which arise between tribes and states. Despite recent changes in federal environmental laws which now expressly vest authority in EPA to treat eligible tribes as states, these conflicts are not likely to cease.

The general principles that determine whether a state has jurisdictional within a reservation are easy to state, but hard to apply. Resolution of the jurisdictional question traditionally involves a determination of, first, whether state law has been preempted by federal law and, second, whether state law would unlawfully infringe on the right of reservation Indians to self-determination and self-rule. Recent Supreme Court decisions, however, appear to move away from the two-prong test to rely totally on a preemption analysis.⁷ This analysis requires a particularized inquiry into the nature of the federal, state and tribal interest in controlling the activity, balances the competing

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state, tribal and federal regulatory interests and roles, relies heavily on individual factual patterns and considers the past involvement of each government in regulating the activity.⁸ State jurisdiction on reservation lands has been found in the absence of any Indian tradition of state government in the regulated area and if the reservation activity has an impact on state lands outside the reservation boundary.⁹ Typically, however, while each case will depend on particular facts, states will not have jurisdiction to regulate Indians and Indian lands within a reservation boundary.¹⁰

In Montana v. United States,¹¹ the United States Supreme Court closely examined the parameters of tribal regulatory jurisdiction over non-Indians on the reservation. The Court noted that through their original incorporation into the United States, as well as through specific treaties and statutes, tribes have lost many of the attributes of sovereignty. Under the particular facts of the Montana case, the court found that the Crow tribe did not have inherent power to regulate hunting and fishing by non-members on fee lands within the reservation. Nevertheless, the court discussed tribal regulation of non-members and concluded that a tribe can regulate non-members in two instances. First, a tribe can regulate non-members who enter into consensual relationships with the tribe or its members. Second, a tribe can regulate non-members on fee lands if their conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."¹² Interestingly enough, under a different fact pattern, the court has found that state hunting and fishing laws are preempted on reservation lands and that tribes have authority to regulate non-Indian conduct.¹³

In jurisdictional disputes between states and tribes over authority to promulgate and enforce environmental regulations on non-Indian lands within reservations, application of the second exception in Montana will guide the result. This exception is frequently heard as the basis for the tribal assertion that any activity conducted on the reservation, particularly activity which affects the environment, constitutes a threat to the political integrity, the economic security or the health or welfare of the tribe. In environmental cases, courts will be examining the particular environmental activity in question to determine whether tribal regulation of non-members on fee land is necessary to protect the health, welfare or economic stability of the tribe.

The issue of tribal regulation of non-members on fee lands within the reservation is again before the United States Supreme

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Court in a consolidated appeal of a Ninth Circuit zoning case which was argued January 9, 1989. The Supreme Court will have to apply the exception in Montana and determine whether the political integrity, economic security or health and welfare of the tribe justifies tribal regulation of non-members and their property. This case is being watched closely by Indians and non-Indians alike as its...