TRIBAL AUTHORITY TO REGULATE AIR QUALITY

• Jurisdiction: United States

Air Quality Regulation For The Natural Resources Industry
(2000)
CHAPTER 13B
TRIBAL AUTHORITY TO REGULATE AIR QUALITY
Jeanette Wolfley
Attorney at Law
Pocatello, Idaho

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January 17, 2000

I. Introduction — Environmental Regulation Within Indian Country

Federal environmental laws generally require the Environmental Protection Agency ("EPA") to set standards for various sources of pollution, to enforce those standards through permitting systems, and where a state so requests, to delegate primary enforcement authority to that state. As originally enacted, most federal environmental laws did not mention Indian tribes or reservation lands, and none of them provided for direct participation by tribal governments. Congress' omission involved about a million people residing on near fifty-six million acres of land belonging to 281 tribal reservations which reflect the full range of environmental issues and problems faced by the rest of the nation.¹ Over the past decade, however, Congress has begun addressing legislatively how and by whom the environment of Indian reservations would be regulated under the federal environmental laws. Congress has enacted tribal amendments to major federal environmental laws — the Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Clean Water Act, and the Clean Air Act, which clarify the role to be played by tribal governments.

The air quality in Indian communities has increasingly been degraded by sources and activities, including tribal businesses, manufacturing and processing companies, increasing road traffic, and the influx of new businesses and populations on reservation. The impetus for tribal government attention to air pollution is similar to the federal and state governments — the desire to prevent air pollution and enhance air quality on reservation homelands, and thereby promote the health and general welfare of the reservation population. Additionally, tribes seek to preserve their homelands for the tribes' exclusive use and benefit as guaranteed by treaties and agreements with the United States. Today, tribal people continue to reside on these treaty guaranteed permanent homelands located throughout the United States. Indian reservations continue to be both a home, culturally and historically, and an economic base, for tribal people, and therefore must be protected and preserved in order to meet the needs of the tribes presently and in the future.

This paper discusses the legal basis of tribal governments to assert and enforce regulatory jurisdiction over all sources and activities affecting the air quality on their respective reservations. There are two principal and separate sources upon which Indian tribes may exercise their authority to regulate in the air quality area. First, the Indian tribes may regulate based on their inherent authority to regulate conduct and enforce their laws against all persons located on the reservation. Second, under a separate and distinct source, Indian tribes may be delegated authority to administer and regulate particular conduct under the provisions of the Clean Air Act, 42 U.S.C. §§ 7401 -7671q. The recently promulgated Tribal Authority Rule by the EPA set forth the criteria and procedures

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for approving such tribal applications for federal delegation. The established law under tribal inherent and federal delegated authority recognize and secure the Indian tribes' authority to regulate and protect the quality of air on their established homeland areas.

II. General Tribal Inherent Authority To Regulate Air Quality On Indian Reservations

It is well established that Indian tribes are sovereign entities "possessing attributes of sovereignty over both their members and territory." United States v. Mazurie, 419 U.S. 544 (1975),² and that "tribal sovereignty is dependent on, and subordinate to, only the Federal government, not the States." Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154 (1980). Indeed, "[p]erhaps the most basic principle of all Indian law" wrote Felix Cohen in his treatise on the subject, "is the principle that those powers which are lawfully vested in an Indian tribe are not, in general delegated powers granted by express acts of Congress, but rather, inherent powers of a limited sovereignty which has never been extinguished." F. Cohen, Handbook of Federal Indian Law, 122 (1942 ed.) (emphasis removed); See Powers of Indian Tribes, 55 I.S. 14 (1934).

The origin of inherent power is the original sovereignty of Indian tribes, a sovereignty that predates the European arrival to this continent and the formation of the United States. In United States v. Wheeler, 435 U.S. 313 (1978), the Supreme Court explained the extent of inherent tribal sovereignty, providing,

The sovereignty that Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a result of their independent status.

435 U.S. at 323.

The inherent tribal sovereignty principles established in Mazurie and Wheeler have been reaffirmed by the Supreme Court in numerous cases, including Montana v. United States, 450 U.S. 544 (1980). Montana continues to be the leading case on tribal civil jurisdiction over non-Indians, and sets forth the following test for determining the extent of inherent tribal authority:

To be sure, Indian tribes retain inherent sovereign powers to exercise some forms of civil jurisdiction over non-Indians on their reservations,

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even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within it reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or health and welfare of the tribe.

450 U.S. 565-66 (citations omitted).

It is axiomatic that the quality of the natural environment of the Reservation impacts directly the health and welfare of the Tribes and their economic security. Pollution in air and water knows no boundaries and impacts tribal, fee and allotted lands. It would be extremely difficult to separate the effects of air quality contamination on non-Indian fee land from impairment on tribal or tribal member owned land on the Reservation. See, Montana v. EPA, 137 F.3d 1135 (9^th Cir.), cert. denied, 119 S.Ct. 275 (1998). Accordingly, in order for an Indian tribe to regulate the Reservation environment effectively, it simply must have authority over all activities and sources impacting the quality of air on the Reservation.

Over the past ten years, the Supreme Court has rendered three decisions in the area of general tribal inherent authority. The recent Supreme Court decisions in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989); South Dakota v. Bourland, 508 U.S. 679 (1993); and A-1 Contractors v. Strate, 117 S.Ct. 1404 (1997), however, do not change any of the fundamental rules for determining the extent of retained tribal civil regulatory jurisdiction over all persons on reservation. Significantly, these decisions do not limit the jurisdiction of Indian tribes in the area of environmental regulation.

Montana's progeny — Brendale and Bourland — each addressed the scope of a tribes' power to enact substantive laws governing the conduct of non-Indians on alienated reservation lands owned in fee simple by non-Indians. In each case, the Supreme Court reaffirmed the Montana case and the two prong analysis to determine inherent tribal civil jurisdiction over non-Indians. In Strate, the Supreme Court applied the Montana regulatory analysis to...