Idaho nibbles at Montana: carving out a third exception for tribal jurisdiction over environmental and natural resource management.

• Author: Althouse, H. Scott

1. INTRODUCTION

   Since time immemorial, the Coeur d'Alene River Basin of the western Rocky Mountains in northern Idaho has been home to the Coeur d'Alene Indian Tribe.(4) As French fur trappers and American settlers arrived in an era of rapid westward migration, the Tribe's subsistence economy gradually gave way to agriculture and timber.(5) The discovery of silver in the 1850s dramatically tarnished the Tribe's reservation environment and quality of life.(6) Over a one-hundred year period, the mining industry in northern Idaho's Silver Valley wiped out most natural life in the Coeur d'Alene River Basin by dumping seventy-two million tons of mining waste into the Coeur d'Alene watershed.(7)

   While the State of Idaho ignored the problem for decades, the Tribe developed its own plans. Thus began the Coeur d'Alene Basin restoration project, and the largest natural resource damage lawsuit in American history.(8) In 1991, the Tribe sued several mining companies to clean up the contaminated waters.(9) Today, the Coeur d'Alene Tribe continues its struggle to restore the environmental integrity of its reservation lands.(10) Along with a leading role in cleanup efforts of the basin, the Tribe is also working to resolve ownership of Lake Coeur d'Alene to prevent the State of Idaho from interfering with tribal jurisdiction.(11) Recent history and Idaho's environmental neglect have convinced tribal leadership that the Tribe is the last, best hope for the future health of the Lake.(12)

   In these lawsuits, the Coeur d'Alene Tribe asserts its sovereignty to demonstrate the Tribe's commitment to environmental restoration for the entire basin. The Tribe not only wants the mining contamination removed from the Lake, but it also wants to control the cleanup.(13) In 1995, the Tribe applied to the Environmental Protection Agency (EPA) to regulate water quality on Lake Coeur d'Alene.(14) Under the Clean Water Act(15) tribes can apply to EPA for treatment in the same manner as states (TAS).(16) The Coeur d'Alene Tribe wants to set meaningful water quality standards to restore the chemical and biological integrity necessary to sustain thriving fisheries into the future.(17) However, in preparation for its TAS application,(18) the Tribe struggled to establish jurisdiction over Lake Coeur d'Alene. To establish jurisdiction, the Tribe brought an action in 1992 to quiet title to the bedlands underlying Lake Coeur d'Alene, claiming they were included in the Coeur d'Alene Indian Reservation established by President Grant in 1873.(19) Idaho objected under the equal footing doctrine,(20) arguing that the Tribe had no ownership or civil jurisdiction over Lake Coeur d'Alene. In 1997, the Supreme Court ultimately dismissed the Tribe's suit because of Idaho's sovereign immunity under the Eleventh Amendment.(21) In 1999, the Tribe intervened in a subsequent lawsuit brought by the United States against Idaho on behalf of the Tribe.(22) The United States prevailed at trial and the Ninth Circuit affirmed in May 2000, quieting title to lands underlying roughly one-third of Lake Coeur d'Alene and portions of the St. Joe River in the United States as trustee and in the Coeur d'Alene Tribe as beneficial owner.(23) The Supreme Court granted Idaho's petition for certiorari in December 2000 and affirmed the Ninth Circuit's decision on June 18, 2001.(24)

   The Coeur d'Alene Tribe's legal struggle to protect Lake Coeur d'Alene and the reservation environment is not unique in Indian law.(25) As a direct result of the General Allotment Act of 1887 (Dawes Act),(26) many Indian reservations are a jurisdictional quagmire, checkerboarded with tribal and federal jurisdiction over trust lands and state jurisdiction over non-Indian fee lands.(27) In the landmark case Montana v. United States,(28) the Supreme Court affirmed settled legal principles regarding submerged lands. Under the equal footing doctrine, states are presumed to own submerged lands underlying lakes and rivers, including those lands located inside Indian reservations.(29) As a result, states have regulatory jurisdiction over such water bodies.(30) Therefore, in the absence of TAS status, tribes must depend on EPA and the states to develop water quality management programs for Indian reservations, despite Congress's well-settled policy of self-determination for Indian tribes.(31) Tribes depend on state agencies and EPA to regulate non-Indian activities that directly affect and threaten the reservation environment.(32) Since Montana, the Supreme Court has also narrowed the ability of tribes to exert regulatory jurisdiction over non-Indians and nonmember Indians.(33) The Court's confusion between tribal jurisdiction over nonmembers and non-Indians continues to this day.(34) To compound the problem, the Court limits tribal jurisdiction based on a misunderstanding of inherent tribal sovereignty and misapplication of a flawed private property rights doctrine.(35)

   As epitomized by the Coeur d'Alene Tribe, many Indian nations have a strong cultural and spiritual affiliation with the land and water.(36) Tribal interest in environmental and natural resource management on reservations is high.(37) However, tribes are increasingly unable to manage nonmember activities that interfere with tribal management of natural resources and environmental quality because of the Supreme Court's misapplication of a property rights analysis. The Court's property rights analysis ignores inherent tribal sovereignty,(38) and the Ninth Circuit has struggled to apply the Supreme Court's property rights approach--with mixed results for tribes.(39)

   The Ninth Circuit recently avoided the Supreme Court's property rights limitations on inherent tribal sovereignty when the court considered congressional acts recognizing the Coeur d'Alene Tribe's historical dependency on Lake Coeur d'Alene's fisheries.(40) Part II of this Chapter explores the tripartite jurisdictional scheme in Indian country and the Supreme Court's trend toward limiting inherent tribal sovereignty over nonmember activity in the Court's post-Montana decisions. Part III identifies the inadequacy of a property rights-based approach to inherent tribal sovereignty by examining the Ninth Circuit's struggle in applying the Supreme Court's property rights doctrine to questions of jurisdiction over nonmember activities affecting environmental and natural resource management in Indian country. Part IV examines the Ninth Circuit's holding in United States v. Idaho and concludes that it establishes a third Montana exception for tribal jurisdiction over water bodies on Indian reservations created before statehood for tribes that are historically dependent on fisheries. Part V explores the scope of inherent tribal sovereignty over environmental and natural resource management under the proposed third Montana exception. This Chapter concludes by urging all federal courts to recognize that tribes are the presumptive owners of submerged lands inside reservations that were established before statehood and to recognize the existence of the third Montana exception.

2. BACKGROUND: JURISDICITON IN INDIAN COUNTRY

   A. The Tripartite System: Tribal, Federal, and State Jurisdiction

   Jurisdiction in "Indian country" comes under a tripartite analysis whereby tribes, states, and the federal government share elements of criminal and civil jurisdiction.(41) Tribes play a crucial role in administering criminal jurisdiction over members in Indian country. As a matter of inherent sovereignty,(42) tribes have exclusive jurisdiction over their own members,(43) and over nonmember Indians for minor crimes.(44) However, tribes have no criminal jurisdiction over non-Indians.(45) As a matter of inherent sovereignty, tribes also have exclusive civil jurisdiction over their members in Indian country, subject to the plenary power of Congress.(46) This includes all aspects of municipal sovereignty: elections and voting, hunting and fishing regulations, and health and family welfare.(47) As a matter of inherent sovereignty, tribes also retain civil jurisdiction over certain non-Indian activities through two exceptions to the main rule in Montana.(48) Under the main rule in Montana, tribes do not have regulatory authority over non-Indians as a matter of inherent sovereignty.(49) However, a tribe may regulate non-Indian activity if it falls under one of two exceptions: the consensual relationships exception or the health and welfare exception.(50) Despite the Court's ostensibly broad pronouncement of tribal jurisdiction over non-Indians under these two Montana exceptions, the Court has never held that a tribe has jurisdiction over submerged lands, non-Indian-owned fee lands, or any other lands inside a reservation where the tribe otherwise lost its property right to exclude nonmembers.(51)

   The United States has concurrent criminal jurisdiction over Indians in Indian country. Under the Major Crimes Act of 1885(52) and the Indian Country Crimes Act,(53) the federal government has criminal jurisdiction over crimes committed by and against Indians. The United States Congress also has plenary power over Indian affairs.(54) As a result, Congress has the power to recognize, extend, or limit federal and tribal civil jurisdiction in Indian country.(55) With regard to environmental management, EPA retains regulatory and enforcement authority to the extent it has not been delegated to states or tribes.(56) In essence, all upstream waters located on or adjacent to Indian reservations are subject to state authority because when EPA delegates authority to the states to administer the Clean Water Act on Indian reservations the upstream industrial dischargers must obtain a National Pollution Discharge Elimination System (NPDES) permit that complies with the downstream state water quality standards.(57) However, this jurisdictional dispute is gradually giving way to tribal administration of environmental programs because EPA...