CHAPTER 5 TRIBAL MANAGEMENT OF TRIBAL LANDS AND RESOURCES: ENVIRONMENTAL REGULATION
| Jurisdiction | United States |
(Nov 2014)
TRIBAL MANAGEMENT OF TRIBAL LANDS AND RESOURCES: ENVIRONMENTAL REGULATION
General Counsel
Pueblo of Isleta
New Mexico
William C. Scott
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
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WILLIAM C. SCOTT is a partner with the law firm of Modrall Sperling in Albuquerque, New Mexico, where he is a member of the Natural Resources and Environment and the Native American Law Practice Groups. Bill advises energy and resource developers regarding compliance with tribal and environmental laws and ordinances and the interplay between tribal and federal or state regulations. His practice includes transactions, permitting, and regulatory compliance, and litigation in the areas of Indian law and environmental and natural resources law. Recognized by clients and peers for his expertise in Environmental Law and Native American Law, Chambers USA Directories for Business reports that Bill is widely considered to be "a valued adviser on environmental issues in New Mexico." Bill is among those listed in Best Lawyers in America® and was selected by Best Lawyers as 2014 Lawyer of the Year - Albuquerque in Native American Law. Additionally, he is recognized by Southwest Super Lawyers®, and has spoken on numerous occasions for organizations such as the Rocky Mountain Mineral Law Foundation, Law Seminars International, and the State Bar of New Mexico. Bill received his J.D. from the University of New Mexico School of Law, and his B.A. from Georgetown University. He is admitted to practice in Colorado and New Mexico, and before the U.S. District Court for the District of New Mexico, the U.S. District Court for the District of Colorado, the U.S. Court of Appeals for the Tenth Circuit, and the United States Supreme Court.
Tribal governments play a significant role in land use and environmental regulation. Tribes have comprehensive power to regulate both their members and tribal lands. However, those sovereign powers may not extend to regulate activities of nonmembers whose conduct nonetheless may impact tribal members and tribal resources. Delegated federal authority under federal environmental statutes may augment retained inherent tribal authority, strengthening and perhaps expanding a tribe's regulatory reach.
This paper is intended to provide a general overview and framework for understanding the roles of retained inherent sovereignty and delegated federal authority in connection with land use and environmental regulation. Part I of the paper contains three sections. The first is a condensed summary of the history of the phases of federal Indian law's development. The next section contains a synopsis of contours of retained inherent sovereignty. The third section then discusses cases illustrating the limits on that inherent power, especially in the context of land use regulation. Part II then turns to a review of the historic federal-state environmental partnership and the emergence of a role for tribal governments in that scheme, culminating in the adoption of "treatment as a state" ("TAS") provisions in several of the major federal environmental laws. As part of that discussion, the paper surveys the general requirements that tribes must meet to qualify for TAS status and the differences in the scope of jurisdiction accorded to qualifying tribes under the Safe Drinking Water Act ("SDWA"),1 the Clean Water Act ("CWA"),2 the Clean Air Act ("CAA"),3 and the Surface Mining Control and Reclamation Act ("SMCRA").4
I. BRIEF HISTORICAL OVERVIEW OF FEDERAL INDIAN LAW AND RETAINED INHERENT SOVEREIGNTY.
Indian tribes "have occupied an important, but often ill-defined, position in our constitutional system of government from the outset of the Republic."5 While Indian tribes have long been recognized as "distinct, independent political communities,"6 federal Indian policy has historically "vacillated between two different and irreconcilable visions regarding those
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communities. 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."7 An awareness of that history provides a useful backdrop for understanding the status of tribes within the federal environmental regulatory scheme.
A. Historical Overview.
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,8 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.9 Second, the Court declared that the relationship between the United States and tribes was that of a "ward to his guardian."10 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.11
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 188712 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.
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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 193413 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.14
4. Termination Era
Between the mid 1940's 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.15 Congress also enacted the Indian Claims Commission Act of 1946,16 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."17 Public Law 280 ceded civil and criminal jurisdiction over Indian country to five states automatically18 and provided procedures for other states to assume such jurisdiction.
5. Self-Determination Era
In the early 1960's, 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."19 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.
The regulatory powers that tribes exercise today derive from three primary sources: retained inherent sovereign powers, treaties with the United States, and federal statutory delegations of authority. As noted above, the first and last of those sources are the focus here. In the next section, this paper will summarily describe key attributes of tribes' retained inherent sovereignty.
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B. Contours of Retained Inherent Sovereignty.
Early Supreme Court cases acknowledged that Indian tribes remain distinct, independent political communities having attributes of sovereignty over their members and territory.20 Thus it is well settled that tribes possess "inherent powers of a limited sovereignty which has never been extinguished."21 The cases, though, have defined certain limits on that sovereignty. First, "Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government."22 Second, "[t]hrough their original incorporation into the United States as well as through specific treaties and statutes ... Indian tribes have lost many of the attributes of sovereignty."23 The limitations on tribal sovereignty "rest on the fact that the dependent status of tribes within [the United States'] territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations."24 The "areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non-members of the tribe."25 Thus, the...
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