Using plenary power as a sword: tribal civil regulatory jurisdiction under the Clean Water Act after United States v. Lara.

• Author: Tweedy, Ann E.

1. INTRODUCTION II. OVERVIEW OF THE CLEAN WATER ACT AND THE PRE-LARA TREATMENT AS A STATE PROCESS A. The Clean Water Act B. EPA's Interpretation of section 518(e) and Its Implications for Indian Tribes 1. EPA Has Interpreted section 518 as Based on Inherent Sovereignty Rather Than as a Delegation 2. The Pre-Lara Implications for Tribes of EPA's Reliance on Inherent Sovereignty a. The Supreme Court's Progressive Narrowing of Tribal Sovereignty b. EPA's Presumption in Favor of Tribal Sovereignty c. The Difficulties Tribes Face in Attaining TAS Status d. The Uncertainty Faced by Tribes with TAS Status Under the Pre-Lara Framework III. THE COURT'S HOLDING IN LARA AND WHAT IT MEANS FOR TRIBES APPLYING FOR TAS STATUS A. The Court's Holding in Lara B. Lara's Implications Outside the Criminal Law Context C. Why Lara Requires the TAS Provision of the CWA Be Read to Reinvest Tribal Sovereignty 1. Interpreting section 518(e) to Reinvest Tribal Sovereignty Is Consistent with the CWA's Plain Language 2. The Legislative History of section 518(e) Does Not Preclude an Interpretation Reinvesting Tribal Sovereignty 3. Interpreting section 518(e) as Reinvesting Tribal Sovereignty is Consistent with Other Provisions of the CWA IV. CONCLUSION I. INTRODUCTION

   In April 2004, the Supreme Court decided the groundbreaking Indian law case, United States v. Lara. (1) Lara settled the issue of whether Congress can restore previously divested tribal sovereignty. Since Congress has plenary power over tribes and tribal sovereignty, it has long been the law of the land that Congress can abridge that sovereignty. (2) Whether Congress' plenary power also enables it to reinvest tribal sovereignty, however, remained unanswered. (3) Nonetheless, many assumed that Congress could not. In Lara, the Supreme Court finally addressed this issue and, to the astonishment of some Indian law practitioners and the relief of many, the Court held that, just as plenary power allows Congress to divest tribal sovereignty, so too does this power allow Congress to reinvest tribal sovereignty. (4)

   Lara, a criminal case concerning the Double Jeopardy Clause, (5) considered whether Congress could reinvest Indian tribes' criminal jurisdiction over non-member Indians. (6) However, its implications go far beyond the criminal context. In light of the principle that the Supreme Court's "application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision," (7) Lara may well have immediate and wide-ranging effects in the civil context, under any statute that can be read to recognize and affirm tribal sovereignty. (8)

   This article examines Lara's effect on tribes' ability to obtain Clean Water Act (CWA) (9) treatment-as-state (TAS) (10) status. Based on Lara, the article concludes that the CWA should be read to recognize and affirm tribal sovereignty, thereby reinvesting tribal sovereignty over regulation of water quality. Furthermore, this article concludes that Lara should be applied retroactively to all tribal applications for TAS status under the CWA. Such a reading of the CWA would considerably reduce the burdens on tribes applying for TAS status which, prior to Lara, included the requirement that tribes affirmatively show that their sovereignty to regulate water quality within their reservations had not been divested. This article's suggested reading of the CWA would also be consistent with the intent of the TAS program and EPA's interpretation that the program is based on inherent tribal authority.

2. OVERVIEW OF THE CLEAN WATER ACT AND THE PRE-LARA TREATMENT AS A STATE PROCESS

   Because delegation of power by Congress requires an affirmative act by the federal government granting tribes limited, specifically-defined power, usually in a narrow context, (11) whereas a tribe's inherent sovereignty is amorphous, not necessarily subject to constitutional limitations, and generally exists independently of federal recognition (although it may be implicitly or explicitly abrogated by Congress), (12) courts tend to be more comfortable enforcing delegated tribal power than inherent tribal sovereignty. (13) Accordingly, in the pre-Lara context, power based on delegations created much more certainty for tribes facing court challenges to their jurisdiction.

   1. The Clean Water Act

      The CWA relies on two primary components to protect water quality. (14) First are "Effluent Limitation Guidelines" promulgated by the Environmental Protection Agency (EPA). (15) These technology-based limits on discharges into water bodies "restrict the quantities, rates, and concentrations of specified substances discharged from point sources." (16) In addition to the Effluent Limitation Guidelines, the CWA also provides for "water quality standards," which "express the desired condition" of a particular waterway, based on the designated use of the waterway. (17) These two components of the CWA work together to regulate water quality. For example, where cumulative effects from many point sources are at issue, a discharger who is in compliance with an effluent limitation guideline may nonetheless be required to reduce his or her discharge in order to comply with a water quality standard. (18) Under the CWA, as originally enacted, only the states or the federal government could adopt water quality standards. (19)

      In 1987, Congress amended the CWA to allow EPA to treat Indian tribes as states and thus to specifically authorize tribes' adoption of their own water quality standards. (20) Section 518(e) of the CWA allows EPA to treat a tribe as a state "to the degree necessary to carry out the objectives of this section" if:

      (1) the Indian tribe has a governing body carrying out substantial governmental duties and powers;

      (2) the functions to be exercised by the Indian tribe pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and

      (3) the Indian tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and of all applicable regulations. (21)

   2. EPA's Interpretation of section 518(e) and Its Implications for Indian Tribes

      This sub-part explains EPA's decision to treat section 518 as based on inherent tribal sovereignty and the hurdles and considerable uncertainty that this decision resulted in for tribes seeking to exercise jurisdiction under section 518.

      1. EPA has Interpreted section 518 as Based on Inherent Sovereignty Rather Than as a Delegation

         Given that the statutory language accords discretion to EPA about whether to treat a tribe as a state, (22) and that the requirements for such treatment are not particularly onerous, many, including Justice White, initially viewed the language as creating a delegation of authority to tribes, rather than relying upon their inherent sovereignty. (23) Nonetheless, in its administrative guidelines and regulations implementing section 518(e), EPA took the view, based ostensibly on the ambiguity of the section's legislative history, that section 518(e) is a recognition of inherent sovereignty, rather than a delegation. (24) Federal courts eventually upheld this interpretation, according deference to EPA. (25)

      2. The Pre-Lara Implications for Tribes of EPA's Reliance on Inherent Sovereignty

         a The Supreme Court's Progressive Narrowing of Tribal Sovereignty

         Practically speaking, EPA's decision to treat section 518(e) as a recognition of inherent sovereignty rather than a delegation meant that tribes faced considerable hurdles in achieving TAS status before Lara (26) A line of cases, beginning with Montana v. United States, (27) held that tribes' civil regulatory authority over non-members on their reservations has been divested except to the extent that 1) such authority is necessary to protect a tribe's political integrity, economic security, health, or welfare, or 2) the non-member has entered into a consensual relationship with the tribe. (28) This was particularly applicable to land owned in fee by non-members. (29) The Court has increasingly narrowed these exceptions to the divestment of tribes' civil regulatory authority, (30) causing tribes seeking to assert such authority to have to make complicated showings as to the extent to which either 1) the activity sought to be regulated poses a threat to tribal health, welfare, economic security, or political integrity, or 2) the regulation is authorized based on a consensual relationship with the regulated party. (31)

         2. EPA's Presumption in Favor of Tribal Sovereignty

            Nonetheless, despite the Supreme Court's increasingly narrow reading of the so-called Montana exceptions and an EPA pledge to interpret the TAS provisions according to evolving case law, (32) EPA has ameliorated this burden somewhat by effectively creating a presumption in favor of tribal jurisdiction under the CWA, because of the obviously strong potential for water quality to directly affect a tribe's health and welfare and the fact that the threat posed to tribal health and welfare is serious and substantial. (33) The effects of EPA's presumption should not be overestimated, however. Despite the presumption, tribes need to submit very detailed applications to the EPA, affirmatively demonstrating their inherent sovereignty over water quality, a demonstration that many tribes will not be able to make. (34) Additionally, the presumption does not provide tribes who are accorded TAS status any security for two reasons. First, it is very possible that a court could conclude that the presumption was invalid based on case law from other contexts construing (and limiting) tribal sovereignty. Secondly, the...