31 ELR 11198 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Tribal Nations: Environmentally More Sovereign Than States

Joe W. Stuckey

The author is an Attorney at Law, Houston, Texas. Mr. Stuckey attended Texas A&M University, B.S.C.E. 1965 and University of Houston Law Center, J.D. 1974, L.L.M. 2000.

[31 ELR 11198]

Sovereignty: a: supreme power especially over a body politic;

b: freedom from external control.1

Jurisdictional issues have been a part of the lives of Native Americans since before the Indian wars and continue to be at the center of all disputes involving both their environment and their natural resources. Modern jurisdictional issues usually concern sovereignty, treaties, and the rights of states and tribal courts. More recently, transboundary issues have become a part of environmental disputes.

This Article introduces the concept of sovereignty as it applies to Native Americans. It then reviews cases involving the rights of tribes asserted under various theories, including tribal sovereignty, compared to rights asserted by states. My thesis is that tribes have greater rights in environmental matters than do states because of their historical status as sovereign nations, their treaties providing for separate rights, and their treatment as "dependent wards" of the U.S. government.

The first section describes some of the historical origins of sovereignty of Native Americans, including rights obtained from the U.S. Commerce Clause of the U.S. Constitution. It also reviews the Age of Removal, congressional authority, treatment under treaties, the Federal Trust Doctrine, and the Indian Reorganization Act of 1934. It further reviews (1) historical case law involving the relationship of Native Americans, both as members and non-members of tribes, with states and the federal government; and (2) historical case law involving the relationship of citizens of states with sovereign tribes, members of tribes, or with Native Americans who are not members of tribes. The next section addresses the U.S. Environmental Protection Agency's (EPA's) policies that treat tribes as states. The following section analyzes recent cases between tribal nations and states involving environmental issues. The final section reviews federal, state, and tribal jurisdiction, and discusses cooperative agreements with tribes.

Historical Issues Involving Native American Sovereignty

Lands where tribal and federal laws apply, but not generally state law, are known as "Indian country,"2 and typically include lands within reservation boundaries, "dependent Indian communities,"3 and all "Indian allotments."4 Reservations also consist of tribal trust lands, Indian allotments, and non-Indian fee lands.5 As a result, when tribes try to regulate reservation resources, jurisdictional conflicts often arise between tribal governing bodies, which issue regulations pursuant to federal environmental statutes, and states, which presume they can exercise jurisdiction over non-Native Americans who live on or own fee lands on reservations.6

Historically, once a reservation is created by Congress through a ratified treaty or agreement, only Congress can reduce or eliminate it, and Congress must clearly evince its intent to do so.7 Opening a reservation to settlement to non-Native Americans is consistent with the preservation of existing boundaries, but some agreements and treaties have specifically preserved reservation boundaries.8 Ambiguity at any point is resolved in favor of the Native Americans, and diminishments of a reservation are not found lightly.9 The U.S. Supreme Court has devised an analytical structure for evaluating diminishment cases, requiring consideration of the language of the statute creating the reservation and any incorporated agreement, the historical context surrounding passage of the statute, and how the land in question has been used since.10

Additionally, tribes possess the inherent authority to govern and regulate their internal affairs in substantive areas such as tribal membership, domestic relations, rules of inheritance, and criminal laws as applied to tribal members and non-member Native Americans.11 Criminal jurisdiction, however, does not extend to non-Native Americans for their on-reservation conduct.12 The Supreme Court has also approved congressional delegation of the authority to regulate the introduction of alcohol into Native American country because Native American nations have a "degree of independent [31 ELR 11199] authority over matters that affect the internal and social relations of Tribal life."13

However, Native Americans are subject to the unlimited legislative authority of Congress to pass any law that it pleases, including those that restrict or eliminate the powers of Native American governments.14 Due to the plenary nature of this power, and the Supreme Court's concomitant judicial deference, the Court has rarely, if ever, limited the power of Congress over Native Americans.15 The Bureau of Indian Affairs (BIA), though, cannot force a tribe to accept a transaction that is opposed by the tribal council. As a practical matter, however, the BIA typically approves all transactions that tribal governments endorse.16

Commerce Clause of the Constitution

Article I, § 8, clause 3 of the Constitution, often called the Commerce Clause, provides that "the Congress shall have power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."17 This constitutional language on commerce represents a delegation by the United States of national legislative authority over Native American nations to Congress. Article I, § 8, clause 3 is sometimes called "the Indian Commerce Clause," and that designation will be used herein.

Federal Trust Doctrine

The "federal trust doctrine" has its roots in Cherokee Nation v. Georgia18 and Worcester v. Georgia.19 In Cherokee Nation, Chief Justice John C. Marshall called the Cherokee Nation a "domestic dependent nation" that must look to the federal government for protection.20 In Worcester, Marshall held that Cherokee treaties ceded tribal lands to the United States in return for permission for the tribes to live as a separate community.21 According to Chief Justice Marshall, the United States agreed to protect tribal entities and tribal territory.22 Further, Chief Justice Marshall indicated that the trust relationship between Native American tribes and the U.S. government obligated the federal government to address claims brought by either tribes or their corporate entities, and to protect tribal lands and resources.23 Chief Justice Marshall confirmed that tribal sovereignty was acknowledged and guaranteed by the U.S. government, thus forming the basis for Native American "trust" status.24

The federal trust doctrine has been applied in various circumstances. For example, in Worcester, Chief Justice Marshall, in confirming the Native Americans' rights to the tribal lands,25 held that the Native American nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive …."26 Later, in Lane v. Pueblo of Santa Rosa,27 the Court used a guardian-ward analogy to define the relationship between the tribe and the Secretary of the Interior.28 This guardian-ward relationship prevented the disposal of tribal land in a manner similar to disposal of other public land, with the Santa Rosa Court asserting "that … [such a disposal] would not be an exercise of guardianship, but an act of confiscation."29 Then, in Cramer v. United States,30 the Supreme Court recognized a Native American's right of occupancy rooted in the "traditional American policy toward these dependent wards of the nation," to void a federal patent.31 Subsequently, the Supreme Court held the federal government liable for mismanagement of tribal land in United States v. Creek Nation.32 Additionally, the trust doctrine can be applied to an executive agency, such as EPA, which must fulfill its obligations under the doctrine.33

In United States v. Mitchell,34 in 1980 (Mitchell I), and again in 1983 (Mitchell II),35 the Supreme Court revisited the federal trust doctrine. In Mitchell I, the Court held that fiduciary obligations had not been created between the tribal members and the federal government, although the Court found that a trust relationship existed under the General Allotment Act.36 Later, the Mitchell II Court found the existence of a trust relationship due to "statutes and regulations, as well as … the government's elaborate control over Tribal property," and held the United States liable for damages for breach of fiduciary duties.37 The Mitchell II Court found that strict fiduciary duties exist on the government's part when either statutory or regulatory schemes impose them,38 or the government is engaged in actual control over Native American property.39

In 1965, Congress clarified a Native American tribe's right to independently sue in federal court without the federal government acting as its guardian.40 Thereafter, tribes began to make greater use of the trust doctrine as a basis for lawsuits against the federal government.41 Such cases were brought under the Tucker Act, which authorized the Federal [31 ELR 11200] Court of Claims to hear claims seeking damages of $ 10,000 or less that arose under any act of Congress.42

In sum, there have been three types of trust relationships found by the courts: (1) a general relationship for which money damages are not available under the Tucker Act, (2) a trust relationship arising from statutes and regulations for which money damages are available under the Tucker Act, and (3) a trust relationship created by the government's elaborate control over property for which money damages are also available under the Tucker Act.43


A treaty with the U.S. government is an international agreement that has been approved by the U.S. Senate44 and is the supreme law of the land.45 Many tribal nations have signed treaties with the federal government that have been ratified by the Senate, thus giving these treaties the full effect of U.S. law.46 For example, the United States signed roughly 20 separate treaties with the Cherokee Nation from 1785 to 1868.47

Treaties with tribal nations have not been duplicative, and have addressed issues relevant to each party. For example, the 1891 treaty between the United States and the Cherokees recited the establishment of "perpetual peace and friendship" (Article I); placed the Cherokee "under the protection" of the United States (Article II); provided for restoration of prisoners from both parties (Article III); made boundary agreements (Article IV); secured road easements and navigation rights on the Tennessee River (Article V); established trade regulation by the United States (Article VI); guaranteed the Cherokee lands not ceded (Article VII); gave the Cherokees jurisdiction over settlers on Cherokee lands (Article VIII); created prohibitions against any U.S. citizen hunting and gaming on Cherokee lands and traveling into Cherokee lands without a valid U.S. passport (Article IX); established U.S. jurisdiction over Cherokees committing major crimes (horse stealing, robbery, murder, or other capital crime) against U.S. citizens (Article X); established punishment and due process for U.S. citizens committing crimes or trespassing against Cherokees or their property located in Cherokee lands (Article XI); prohibited retaliation or reprisal against criminal acts unless satisfaction had been demanded and refused (Article XII); required that Cherokees become whistleblowers on known or suspected acts against the peace and interest of the United States by neighboring tribes (Article XIII); allowed for U.S. encouragement of herdsmanship and cultivation by Cherokees, along with periodic U.S. provision of gratuitous "useful implements of husbandry," and interpreters to promote useful communications (Article XIV); and required the cessation of animosities and the good-faith execution of treaty provisions (Article XV).48

In the Columbia-Colville Treaty of 1883, Chief Tonaskat asked for a saw and grist mill, a boarding school (100-pupil capacity), a physician to reside with them, and $ 100 per year for himself.49 Chief Sar-sarp-kin asked that Columbia reservation Native Americans be protected in their rights as settlers and that each head of household be awarded one square mile of land, 100 head of cows for himself and his people, and such farming implements as may be necessary.50 Chief Moses asked that each Native American be given two cows, a saw and grist mill for tribal use, that he be given $ 1,000 for erecting a home and $ 1,000 each year of his life, and that each adult male be given one wagon, one double set harness, one grain cradle, one plow, one harrow, one scythe, one hoe, and such other agricultural implements as may be necessary.51

International Treaties and Their Implications for U.S./Tribal Relations

Although the United States is not a party to the Convention on Laws and Treaties52 held in Vienna in 1968-1969 and ratified in 1980, certain of its articles are instructive. For example, Article 2 of the Vienna Convention establishes that a treaty is "an international agreement concluded between States in written form and governed by international law."53 The validity of international treaties is governed by Article 26 of the Vienna Convention which provides that "every treaty in force is binding upon the parties to it and must be performed by it in good faith."54 The exceptions to the validity of treaties are found in Articles 46-52 of the Vienna Convention.55 The notable exceptions concern treaties induced by fraud (Article 49), treaties procured through direct or indirect corruption of a state's representative negotiator (Article 50), treaties procured by coercion of a state's representative negotiator (Article 51), and treaties procured by threat or use of force in violation of international law (Article 52).56 Article 60 provides that an affected party may unilaterally terminate or suspend a treaty in the event of a material breach by the other party.57 Additionally, Articles 31 and 32 provide that a "treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose," and that supplemental means of interpretation may be utilized.58 These terms and conditions govern how independent nations enter agreements and could be useful as a comparative model for U.S. relations with Native Americans.

While no U.S. treaty with tribal nations directly addresses water pollution, there are several international agreements relating to water pollution, which may be illustrative of [31 ELR 11201] what a U.S./tribal nation treaty concerning water pollution might look like.59 Rules on the Uses of the Waters of International Rivers (Water Rules) were adopted by the International Law Association in 1966, and have been referred to as "the most comprehensive and detailed attempt at codification to date" and "have been influential and widely cited."60 Under the Water Rules, a state must prevent new water pollution which would injure another state, cease wrongful conduct, compensate injured parties, abate pollution to avoid environmental damages, and negotiate settlements.61

In a manner similar to the Water Rules, the United States reached an agreement with Mexico over salinity of the Colorado River, whereby the United States agreed to desalinate water that had been polluted by agriculture due to the water's passage through the Wellton-Mohawk diversion.62 Similarly, the United States and Mexico are currently addressing a dispute involving the concrete lining of a California canal system and the water supplies of Mexicali and Tijuana, Mexico.63

The United States and Canada began addressing common water problems in 1909.64 Although originally formed to address water levels and navigability of the Great Lakes, the commission associated with the Boundary Waters Treaty has been utilized to solve problems associated with water pollution, including the eutrophication of Lake Erie, which resulted in the U.S.-Canadian Great Lakes Water Quality Agreement of 1972.65 Another example of U.S.-Canadian dispute resolution regarding water pollution was the Gut Dam. Built by Canada on the St. Lawrence River, it raised water levels of Lake Ontario between 1947 and 1952, causing property damages to U.S. nationals. An international arbitral tribunal ruled in favor of several U.S. citizens, and Canada subsequently agreed to pay the United States $ 350,000 in full settlement of all claims.66

Air pollution has also been the subject of a dispute between the United States and Canada, specifically damages in the state of Washington caused by the Trail Smelter in Canada, and the settlement of the dispute may be instructive as to how a similar U.S./tribal dispute could be settled. In the Trail Smelter67 case, the arbitration tribunal stated that "no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein…."68 The Trail Smelter principles were further used by Canada when an oil spill from Cherry Point, Washington, contaminated beaches in British Columbia.69 The Trail Smelter decision is paralleled by the Stockholm Declaration's Principal 22 which provides that:

States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of States to areas beyond their jurisdiction.70

The provisions of § 601 of the 1988 Restatement of Foreign Affairs Law is similar to the Stockholm Declaration in that it provides that a state must take measures to ensure that activities within its jurisdiction prevent, reduce, and control injury to the environment of another state. Further, a state is responsible for violations of its obligations and for significant injury to the environment of areas beyond the limits of its national jurisdiction, or to the property of another state, or to persons or property within that state's territory.71

The above treaties and matters of customary international law all bear on the rights and responsibilities of tribal nations in the environmental context. They can also serve as examples and guidance for future U.S./tribal relations concerning environmental issues.

North American Free Trade Agreement (NAFTA)72

Under NAFTA, the U.S. government has a fiduciary duty to protect tribal property where the federal government acts as trustee to tribes.73 Only a party to the agreement, an individual, or a nongovernmental organization may participate in the dispute resolution process set up by the environmental side agreement. Therefore, a Native American tribe, as a non-party, cannot elect dispute resolution procedures over alleged environmental degradation under NAFTA.74 Unfortunately, tribes along the U.S.-Mexican border have preexisting environmental problems associated with lax enforcement of environmental laws.75 A substantial percentage of U.S.-Mexican border-area environmental contaminants are linked to water discharges (both waste and stormwaters), hazardous waste generation, and hazardous air pollutants released from Maquiladoras plants (foreign owned assembly plants) in Mexico.76 Additionally, border tribal entities have experienced problems associated with the spillage or illegal dumping of hazardous wastes on their lands.77 A 1996 report by the U.S. General Accounting Office noted [31 ELR 11202] that more than 1,250 trucks cross daily from Mexico into the United States carrying cargo that exhibited "significant safety concerns."78

Under Mexican law, foreign companies that generate hazardous wastes by using imported raw materials must transport that waste to the country where the raw materials originated.79 There is evidence of some environmental enforcement by the Mexican government, such as extensive fines on companies for improper waste disposal.80

The Administrator of the EPA, as the U.S. representative to the Commission on Environmental Cooperation (CEC), is obligated to bring a claim on behalf of any tribe, and to act as an advocate for the tribes under CEC dispute resolution procedure. The federal trust doctrine imposes a strict fiduciary duty to protect the tribe's status as a self-governing entity as well as its property interests.

The possibility exists that under the Indian Reorganization Act of 1934,81 which allows for a tribe to be a corporation, a tribe in its corporate capacity could make a "citizen submission" under NAFTA.82 However, all other claims apparently must be submitted either directly to the U.S. government, or to courts having appropriate jurisdiction.

State Authority Limited

Early courts limited state authority over Native American tribes in a variety of cases. For example, in Gibbons v. Ogden,83 the Supreme Court held that the powers of the U.S. Congress under the Indian Commerce Clause penetrated state boundaries, limiting the exercise of state power over matters within federal authority. In Gibbons, the Court reviewed New York's legislative grants of exclusive navigational rights to New York waters to individual New York citizens. Ogden, the final individual with the navigational rights sued Gibbons, a New Jersey citizen, seeking to enjoin him from navigating waters within the state of New York.84 The Court held that the legislative acts of New York granting monopoly rights for exclusive navigation of all waters within the geographic limits of the state to the exclusion of citizens of other states, foreign nations, and Native American tribes were repugnant to the Constitution, and void.85 The Court also held that Congress' power to regulate commerce, including the transportation and sale of commodities, applied to both land and water.86

In 1830, after gold was discovered in the mountains of Georgia, Cherokee Chief John Ross protested the bad treatment of Cherokees by the state of Georgia. When President Andrew Jackson refused their request for help, the Cherokee Nation, asserting its status as an independent nation, sued the state of Georgia.87 Jackson's first cousin, Chief Justice Marshall, writing for the Court, refused to accept the Cherokee Nation's assertion that it was a foreign state entitled to bring a suit directly to the Supreme Court.88

In rejecting the Cherokee Nation's motion for injunctive relief, however, the Court was sympathetic to the plight of the Cherokees.89 Chief Justice Marshall labeled the Cherokee Nation as a "domestic dependent nation" resembling "that of a ward to his guardian," and acknowledged to be under the "protection" of the federal government.90 The Court indicated that "Indians" looked to the federal government for relief from their wants, and relied upon the government's kindness as well as its power.91 The Court further recognized the Cherokee Nation as a "distinct political society, separated from others; capable of managing its own affairs and governing itself."92 The Court also confirmed that the federal government had "plainly recognized the Cherokee Nation as a state," and indicated that the courts were bound by such acts.93 However, the Court relied on the Indian Commerce Clause to hold that it had no jurisdiction to interfere in the controversy because the Indian Commerce Clause established that Native American tribes were separate and distinct from the foreign nations that were authorized to sue states under Article III of the Constitution. Indirectly, the Court held that the federal power over Native American affairs was exclusive to the federal government, preempting states like Georgia from enacting anti-Native American laws.94

In his dissent, Justice Smith Thompson, joined by Justice Joseph Story, developed a reasoned argument supporting the sovereignty of the Cherokee Nation, with an exhaustive examination of numerous treaties,95 and blasted the majority for failing to exercise jurisdiction over the controversy. He also criticized Georgia for its reprehensible conduct in its attempts to take possession of Cherokee lands in violation of multiple federal treaties. In addressing the U.S. government's compact with Georgia of 1802, wherein the federal government "stipulated to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, 'as soon as it can be done peaceably and upon reasonable terms,'"96 Justice Thompson pointed out that Georgia had no rights whatsoever to Cherokee land, reversionary or otherwise, unless the Cherokee Nation voluntarily released them. He also pointed out that Georgia's grievances against the federal government for nonfulfillment of the 1802 compact did not affect the Cherokee Nation's rights to the gold mines or otherwise.97

[31 ELR 11203]

In 1832, the Supreme Court revisited Georgia's attempt to control Native American tribes in Worcester.98 In that case, seven federally licensed missionaries were convicted by a Georgia state court for illegally residing with the Cherokee Nation without a Georgia license.99 The Supreme Court, in invalidating the Georgia law that the missionaries were charged with violating, relied on the Indian Commerce Clause's affirmative grant of authority to the U.S. Congress, federal guarantees of territorial autonomy contained in the treaties with the Cherokee Nation, and classic statutory preemption, finding a blatant inconsistency between the Georgia law and the federal Trade and Intercourse Acts.100 The Court, under Chief Justice Marshall, also confirmed the Cherokee Nation's sovereignty rights under various treaties, including the right of self-governance, and the right to occupy its own territory to the exclusion of the citizens of Georgia and of Georgia laws.101

During 1866, the Supreme Court reaffirmed the notion that states like Kansas lacked power to foreclose on real property due to nonpayment of taxes on real estate belonging to individual Miami, Shawnee, Wan-zop-e-ah, and Wea Indians by virtue of patents issued by the federal government pursuant to valid Indian treaties,102 even though contiguous reservation lands were disrupted, in part, in favor of individual ownerships.103 The Court confirmed that federal recognition of a Native American tribe automatically preempted state authority over a tribe's members when the tribe's national recognition continued, and entitled tribal nations to protection afforded by the Constitution, treaties, and laws of Congress.104 In a companion case before the Supreme Court, the Seneca Nation was slated for removal from its lands under federal treaty, but implementation had not been initiated by Congress.105 The Court held that New York could not tax reservation lands of the Seneca Nation as long as the reservation lands were occupied by Native Americans, and that this restriction would be lifted only upon dissolution of the tribal nation, or after sale of tribal property by appropriate consent.106

In 1914, the Supreme Court reviewed state taxation of Native Americans and held that Oklahoma could not tax a non-Native American lessee of Native American coal for the severance of those minerals since the mining company was an instrumentality for the implementation of federal policy.107 Two years later, the intergovernmental tax immunity doctrine was invoked to preclude Oklahoma from taxing the oil revenues derived from federal leases of Osage Tribal oil reserves.108 In 1922, the Supreme Court further ruled that Oklahoma could not tax the income derived by a non-Native American lessee of Native American oil from the sale of that oil.109 In 1926, the Court also prohibited Oklahoma from applying its inheritance tax laws to the restricted trust allotment previously owned by a full-blood Quapaw Native American,110 stating that the land passed under a federal law, and was not subject to state taxation under the intergovernmental immunity doctrine.111

Later, in a 1965 Arizona case again dealing with income tax, the Court used preemption to invalidate Arizona's income tax on a non-Native American trader doing business on the Navajo Reservation.112 The Court concluded that Arizona could not, by taxing, "disturb and disarrange" Congress' comprehensive statutory plan regarding Native American traders.113 In 1973, the Supreme Court held that Arizona could not impose a state personal income tax on a Navajo tribal member for income earned on the reservation in McClanahan v. State Tax Commission of Arizona.114 The Court used federal preemption, not inherent tribal sovereignty, to limit state power in Native American country.115

Criminal affairs have also been addressed by the Supreme Court.116 In 1945, the Court announced that "the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history."117 The Court reversed the dismissal of a federal habeas corpus application filed by a Winnebago Native American who had plead guilty in a Nebraska state court to a burglary that occurred in Native American country.118

State Power Over Non-Indians

Case law has clearly shown that non-Native American activities occurring in Native American country are not automatically excluded from state taxing and adjudicatory authority merely because the events in question occurred on a Native American reservation. As early as 1881, the Supreme Court sustained the power of Colorado to prosecute a non-Native American for the murder of another non-Native American that occurred on the Ute Reservation located within Colorado in United States v. McBratney.119 The Court has followed the McBratney ruling repeatedly, holding that the provisions of the General Crimes Act120 do not extend federal criminal jurisdiction to a non-Native American who commits a crime against the person or property of another non-Native American in Indian country despite broad statutory language that appears to cover such crimes.121

[31 ELR 11204]

In 1885, the Supreme Court established that lands and property of Utah and Northern Railroad Company, whose right of way ran through the limits of the Fort Hall Reservation, were subject to territorial taxation.122 In 1898, the Court in Thomas v. Gay,123 held that the territory of Oklahoma could apply its property taxes to cattle owned by non-Native Americans that were grazed part of the year in lands of the Osage and Kansas Indians pursuant to leases. The Court held that a tax upon a lessee's cattle does not rise to a tax upon the lands or privileges of the Native Americans.124

After the development of automobiles lead to oil and gas exploration, the Supreme Court sustained the application of a nondiscriminatory Oklahoma state tax to oil and gas leases operated on leased Native American allotted lands.125 The Supreme Court also supported the general proposition that states may tax non-Native Americans within a reservation, absent preemptive legislation by Congress.126 The Court, in Oklahoma Tax Commission v. United States,127 held that Oklahoma was permitted to tax estates of members of the Five Civilized Tribes where no reservations remained.128 In Oklahoma Tax Commission v. Citizen Band of Potawatomi Tribe of Oklahoma,129 the Court further found that the state had a right to collect cigarette taxes from non-tribal members, however, the state could not require the tribe to collect those taxes. Chief Justice William H. Rehnquist said, "Congress has always been at liberty to dispense with such Tribal immunity or to limit it."130

State income taxes have also been addressed by the Supreme Court. In Kahn v. Arizona State Tax Commission,131 Kahn, a non-Native American lawyer, lived and worked on the Navajo Reservation. As in McClanahan, Kahn paid state income taxes under protest and subsequently contested state taxing authority. The McClanahan decision, which limited a state's power to tax a tribal member on income earned on the reservation, was found to only apply to Native Americans who derived their income from reservation sources.

In Mescalero Apache Tribe v. Jones,132 the Supreme Court ruled that states had the power to tax the gross receipts of a tribal ski resort located off-reservation. The Court found that off-reservation activities were subject to state taxation, in the absence of a federal statutory grant of exemption. In Moe v. Confederated Salish & Kootenai Tribes,133 the Court permitted Montana to tax cigarette sales to non-Native Americans, and required "nonburdensome" recordkeeping by the Native American seller. The Court held that Montana's statute was meant to tax the buyer, not the seller. The Court reasoned that taxing non-Native Americans in Native American country would not interfere in Native American commerce.

In Washington v. Confederated Tribes of the Colville Reservation,134 the Court ruled that state taxation of tribally owned smoke shops would infringe on the right of reservation Native Americans to make their own laws and be governed by them, because the tribe had already imposed a tax on cigarettes and operated the shop under the federal Licensed Trader Act.135 The Court ruled, however, that the state of Washington could enforce its cigarette taxes against tribal cigarette sales to nonmembers, including nonmember Native Americans who resided on the reservation.136

In Montana v. Blackfeet Tribe,137 the Court held that the silence of the Indian Mineral Leasing Act of 1938138 on state taxation of Native American royalties, in contrast to authorization for such taxation found in the Indian Mineral leasing Act of 1927,139 precluded imposition of any state taxes on the mineral royalties paid to Native Americans under 1938 Act leases.140 However, in Cotton Petroleum Corp. v. New Mexico,141 the Court found nothing in the Indian Mineral Leasing Act of 1938 that prohibited the states from taxing non-Native American developers of Native American minerals.142 A non-Native American lessee of Jicarilla Apache tribal oil and gas sought to enjoin enforcement of New Mexico's oil and gas severance tax on the ground that the Jicarilla Apache Tribe already had enacted a tribal oil and gas severance tax.143 The producers unsuccessfully claimed that the Indian Mineral Leasing Act of 1938,144 unlike the Indian Mineral Leasing Acts of 1924145 and 1927,146 contained no authorization for the imposition of state severance taxes, and the combined effect of both taxes imposed a discriminatory and undue burden on commerce in violation of the dormant Commerce Clause.147 The Cotton Court concluded that the omission from the 1938 legislation of an express congressional authorization for states to tax non-Native American development of leased Native American minerals was not meant to preclude the imposition of such taxes.148

In White Mountain Apache Tribe v. Bracker,149 the Court concluded that the Indian Commerce Clause imposed no "judicially enforceable limitations" on the exercise of state power in Native American affairs.150 New Mexico, consequently, was not required to apportion its severance taxes to account for tribal taxation or to provide credit for tribal taxes paid.151

[31 ELR 11205]

In Duro v. Reina,152 the Court expressly held that tribes have no inherent tribal sovereignty to exercise criminal jurisdiction over non-member Native Americans who reside on, and commit offenses within, the reservation.153 Tribal criminal jurisdiction, according to the Court, is limited to the internal relations among members.154 However, Congress legislatively reversed the Duro opinion by "confirming" tribal authority over "all" Native Americans within Native American country.155 In Oliphant v. Suquamish Indian Tribe,156 the Court prohibited tribal courts from trying non-members who committed crimes in Native American country, although there is no doubt that the surrounding state could try tribal members who commit crimes "off the reservation."157

In 1983, Jim Mattox, Attorney General of Texas considered the authority of the Texas Parks and Wildlife Department to enforce Texas game laws within the confines of the Alabama-Coushatta Indian Reservation. Attorney General Mattox held that the department was not prohibited from enforcing the Texas Parks and Wildlife Code on the so-called Indian Reservation. In so holding, Mattox referred to tribal termination legislation under 25 U.S.C. § 726.158

Indian Reorganization Act of 1934

In 1934, Congress enacted the Indian Reorganization Act159 (IRA). The IRA encouraged tribal self-determination and cultural independence, and promoted economic development on reservation land.160 The IRA's main effect was to institute American-style democracies in tribes,161 which permitted the federal government and private entities to interact with tribes more easily. Greater interaction led to the lure of wealth and the infusion of new capital in the tribes.162

Under IRA § 16, a tribe can adopt a constitution and by-laws. If adopted, a tribal constitution vests the tribe with the right to employ legal counsel, the right to prevent sale, disposition, lease, or incumbrance of tribal lands, and the right to negotiate with federal, state, and local governments.163 Further, IRA authorizes the organization of tribal business ventures.164 However, any tribal corporate entity is separate from, and not directed by, the tribal political entity.165

Agreements With Tribes

Montana v. United States,166 decided in 1980, is a leading case regarding tribal agreements. In Montana, the Supreme Court held that a tribal nation may regulate the activities of non-members through various means, such as taxation and licensing, if such non-members enter consensual relationships (commercial dealings, contracts, and leases) with a tribe or its members.167 According to Montana, a tribe also retains civil authority over non-Native Americans on tribal fee lands when their conduct threatens or directly affects "the political integrity, the economic security, or the health and welfare of the Tribe."168

Tribal Regulatory Authority

In Montana v. U.S. Environmental Protection Agency,169 a district court helped to establish the regulatory authority of a tribal nation over water quality standards, and confirmed the rights of tribal nations to regulate river waters in order to make their lands livable.170 The court held that in order to apply tribal water quality standards, a tribe must demonstrate to EPA that the tribe possesses jurisdictional authority over all water resources sought to be regulated, including those of non-members on fee lands, by showing that regulated activities affect "the political integrity, the economic security, or the health or welfare of the tribe."171

In the same year as Montana v. United States, the Ninth Circuit decided Nance v. U.S. Environmental Protection Agency.172 In Nance, the Crow Nation sued over EPA's approval of the northern Cheyenne Reservation's redesignation of air quality standards under the Clean Air Act (CAA).173 The tribe claimed that EPA breached its fiduciary duty by failing to consider how the Crow's strip mining operations would be impacted by EPA's redesignation of air quality standards.174 While acknowledging the existence of the federal government's trust relationship with tribal nations, the Ninth Circuit held that EPA had not breached its fiduciary duties because it had both procedurally and substantively considered the Crow's mining interests.175

[31 ELR 11206]

Although the Crow Nation lost on its allegations, the case provided the Supreme Court with a forum to expand the body of case law relating to confirmation of Native American sovereignty.176 By denying certiorari, the Supreme Court upheld the delegation of authority to Native American governments under the CAA,177 refuting the contention that the Act permitted only delegation to the states. The Court's decision also affirmed the Ninth Circuit's finding that the CAA permitted EPA to allow tribal nations to set air quality goals on tribal reservations. The Court further upheld the Ninth Circuit's refusal to subordinate tribal nations to state authority, evidenced by the Ninth Circuit's statement that "within the … context of reciprocal impact of air quality standards on land use, the states and Indian tribes occupying federal reservations stand on substantially equal footing."178

Tribal Lawsuits

In Seminole Tribe of Florida v. Florida,179 the Supreme Court held that although states can sue one another in federal court, Native American tribes are barred by the Eleventh Amendment from bringing a suit against a state unless the state waives its sovereign immunity. The Court held that, notwithstanding Congress' clear intent in the Eleventh Amendment to abrogate states' sovereign immunity, the Indian Commerce Clause does not grant Congress the same power, and, therefore, § 2710(d)(7) cannot grant jurisdiction over a state that does not consent to be sued.180


EPA actively promotes independence in the environmental area for tribal nations, as can be seen below. In general, EPA programs with states are not emphasized as much as programs with tribal nations.181

Restricting State Environmental Laws

The 1980s saw cases that restricted the application of state environmental laws to tribal lands. In 1985, the Ninth Circuit held that EPA was justified in blocking the inclusion of tribal lands in a state's waste management program182 under the Resource Conservation and Recovery Act (RCRA).183 The Ninth Circuit held that EPA acted reasonably in interpreting RCRA as failing to grant "state jurisdiction over the activities of Indians in Indian country."184 The Washington Department of Ecology v. U.S. Environmental Protection Agency185 court reaffirmed the U.S. government's policy encouraging "tribal self-government in environmental matters."186

Tribal regulation of natural resources and environmental pollution is appropriate for tribal nations who have the capacity to impose and enforce the regulations. Encouragement of environmental self-regulation for tribal nations should promote a cleaner environment because of the historical association between Native Americans and "Mother Earth."

EPA Policies Toward Tribes

In the 1980s, EPA's stated policy was to support "Tribal 'self-government' and 'government-to-government' relations between Federal and Tribal government."187 EPA's policy was consistent with congressional action that placed Native American tribes on an equal parity with states, as shown in several environmental statutes, such as the Safe Drinking Water Act,188 the CAA,189 and the Clean Water Act (CWA).190

Generally, to achieve a level of equality with states, a tribe must be federally recognized, must exercise substantial tribal governmental powers, must have been delegated jurisdiction over the area in question, and there must be the [31 ELR 11207] reasonable expectation that the tribe will be able to implement a program.191 However, an environmental policy by a tribe that is more stringent than that of a neighboring state can affect the tribe's relationship with state businesses.192 Certainly, a tribal nation should be permitted to set its own environmental standards. No state has a right to pollute at any level, and comity between tribal nations and states should be cooperative in nature, just as relationships between all states composing the United States.

EPA's American Indian Environmental Office

EPA has substantially expanded its programs to assist Native American nations in all aspects of environmental statutory and regulatory law. EPA has established an American Indian Environmental Office (AIEO),193 which coordinates EPA's "effort to strengthen public health and environmental protection in Indian Country, with a special emphasis on building Tribal capacity to administer their own environmental programs."194 Further, AIEO and its activities confirm EPA's commitment to support tribal self-government; to uphold the U.S. government's federal trust responsibilities; and to establish a government-to-government relationship between the tribes and EPA. AIEO also provides and administers environmental program grants to tribes, assists in developing environmental agreements between EPA and the tribes, encourages good tribal management practices through assistance and training programs, and promotes a pro-active communication policy between EPA and the tribes on environmental issues.195 Moreover, EPA has simplified access to tribal-related environmental information by providing numerous electronic links on its website, including information on AIEO's mission, EPA and tribal contacts, regional tribal links, policies, laws, regulations, guidances, publications, and important calendar dates.196 EPA's commitment to environmental self-regulation by tribal nations is growing in all aspects, including information, resources, grants, and training. Recently, EPA Administrator Christine Todd Whitman reconfirmed EPA's long-standing policies supporting tribal nations.197

Tribal Programs

EPA has also established a substantial number of environmentally related tribal programs that are included in every major environmental statute and program administered by EPA. Most departments in EPA have incorporated these programs, including the Office of Air and Radiation,198 Office of Enforcement and Compliance Assurance,199 Office of International Activities,200 Office of Policy,201 Office of Prevention, Pesticides, and Toxic Substances,202 and Office of Research and Development.203

In its Office of Solid Waste and Emergency Response, EPA has provided information on its programs involving municipal solid waste, hazardous waste, construction and demolition waste, industrial solid waste, mining waste, and military munitions waste, funding sources, publications, federal and tribal regulations, news, educational materials, contacts and related Internet links,204 including a link to the Environmental Education Outreach Program205 of the Institute for Tribal Environmental Professionals206 at Northern Arizona University207 in an attempt to provide tribes with all the necessary information to deal with waste management in Native American country.208

Additional support to tribal nations is provided in the Office of Water,209 and the Office of Wastewater Management.210 In its General Assistance Programs, EPA actively assists tribes with development, management, and administration of tribal environmental programs. Another primary source of support for tribal programs comes from the Indian Environmental General Assistance Program (GAP) Act.211

With all these resources, tribal nations have the appropriate EPA resources to self-regulate on environmental issues. However, each tribal nation must proactively address self-regulation in the environmental area. This is easier for some tribes than others, due to the disparity of financial resources among the tribes. Notwithstanding, EPA assists each tribal nation with staff support when requested.

EPA Regional Programs

EPA regional offices have also expanded their commitment to tribal advocacy. For example, in 1996, EPA Region VI [31 ELR 11208] created a Regional Native American Office (RNAO) in its Office of External Affairs to confirm EPA's commitment to support tribal self-government, uphold the U.S. government's federal trust responsibilities, and establish a government-to-government relationship between the tribes and EPA Region VI.212 Some EPA regions have more Native American populations than others, and this disparity has led to different treatment from region to region. However, the Internet now provides remote tribal nations greater access to EPA programs than at any other time in the history of EPA. Grant-supported training is also providing private individuals with the ability to promote tribal programs throughout each EPA region.

Tribal Nations: Winning More Environmental Cases

Native American law and policy, from the earliest period, has recognized tribes' territorial sovereignty. When it comes to non-members, the Supreme Court seems to impose upon tribes the same standard of due process as the federal government, regardless of the underlying substantive right, whether the matter be criminal or civil, adjudicatory or regulatory, resident or non-resident. The logic of federalism in the United States, guided by principles of republican democracy, provides ample support for tribal sovereignty and equality in these disputes.213 In the earlier history of judicial decisions affecting tribal nations, their winning ratio was small. However, tribal nations have been winning more arguments, as the following cases suggest.


In 1985, the Ninth Circuit decided Washington Department of Ecology,214 which dealt with RCRA.215 The state of Washington had sought EPA's approval of its hazardous waste program, which included state regulatory jurisdiction of "activities of all persons, Indians and non-Indians, on 'Indian lands.'"216 When EPA disapproved of Washington's proposed hazardous waste program seeking RCRA jurisdiction over Native Americans, Washington sued.

The court held that RCRA did not authorize states to regulate Native Americans on Native American lands, but did not address whether the state could properly regulate a program over non-Native Americans in Native American country.217 In reaching its decision, the court deferred to the reasonable interpretation of RCRA by EPA, while addressing various elements of both Native American sovereignty and the responsibility of the federal government with respect to tribal nations.218 The court concluded that EPA's interpretation of RCRA was well supported by "well-settled principals of federal Indian law," wherein states are precluded from exercising jurisdiction over Native Americans in Native American country "unless Congress has clearly expressed an intention to permit it."219 The court acknowledged the plenary authority of Congress over Native American affairs,220 and the concomitant federal trust responsibility toward Native American nations221 that arose from the federal role as a guarantor of Native American rights against state encroachment.222 The court reasoned that the federal government's respect for "the long tradition of tribal sovereignty and self-government … underlies the rule that state jurisdiction will not be easily implied."223 Further, the court plainly stated that vague or ambiguous statutory language must be weighed against historical tribal sovereignty, particularly when a statute affects areas where tribal nations "have [historically] exercised their sovereign authority or contemporary federal policy encourages tribal self-government."224

The Washington Department of Ecology court continued by holding that a tribal nation's sovereignty status does not disappear even when the federal government takes responsibility for management of a particular federal program on Native American lands.225 The court also confirmed that promotion of tribal self-governance in environmental matters was the federal government's policy.226 Additionally, the court acknowledged EPA's role as a representative agency of the federal government to "promote an enhanced role for tribal government in relevant decision making and implementation of Federal environmental programs on Indian reservations," reflecting the federal commitment to tribal self-regulation in environmental matters.227 The court also relied on Nance to uphold EPA delegation of environmental regulatory jurisdiction to tribal nations, stating that tribal interests in managing the environment of the tribal reservation and the federal policy of encouraging tribal nations either to assume or share in responsibility for environmental jurisdiction, was controlling.228

In Blue Legs v. U.S. Bureau of Indian Affairs,229 tribal members sued EPA, the BIA, and the Indian Health Service for violations of environmental regulations under RCRA.230 Although the Eighth Circuit found no express language in RCRA creating a trust relationship between the defendant [31 ELR 11209] agencies and Native American tribes, the court found that a "general trust relationship" did exist between tribal members and the federal agencies, and that the agencies' actions were to be held to a fiduciary standard when implementing RCRA.231 The court, after holding that open dumps were regulated under RCRA, found that the tribe, the BIA, and the Indian Health Service were responsible for proper operation and cleanup.232

Based on the holdings in the above cases, it is clear that tribal nations may self-regulate under RCRA. They must, however, evidence a desire to do so and demonstrate the capability to establish and enforce regulations. States may enter cooperative agreements with tribal nations on such matters, but the final jurisdiction resides with the tribes.



After Washington Department of Ecology, tribal nations have the authority to regulate air quality on Native American reservations as it pertains to Native Americans.234 In 2000, the D.C. Circuit Court considered the authority of tribal nations to implement the CAA in Arizona Public Service Co. v. U.S. Environmental Protection Agency.235 The court held that Congress had delegated air quality authority to tribal nations over privately owned fee land located within a reservation, tribal trust land, allotted lands, and dependent Native American communities, as long as the tribal nation has inherent jurisdiction over them.

In addition, the court found that the CAA provides that EPA may treat a tribal nation in a manner similar to that of a state for the purpose of regulating air resources "within the exterior boundaries of the reservation or other areas within the Tribe's jurisdiction."236 A tribe can implement CAA programs for off-reservation lands, including land purchased and subsequently petitioned for inclusion into trust for the benefit of the tribe pursuant to 25 U.S.C. § 465,237 if the tribe can demonstrate its inherent authority to regulate air quality on the lands.238 This subsequently acquired tribal jurisdiction over the land may foreclose some state jurisdiction for environmental issues over off-reservation lands.239

Issues involving migration of air pollutants over reservation boundaries will evolve and favor tribal nations as rules, court cases, and international disputes pertaining to such air pollution, including acid rain, develop. There is substantial precedent to favor Native Americans in claims involving the pollution of reservation airspace that are similar to the cases between the United States and Canada. The U.S.-Canadian cases should serve as precedent for claims against parties polluting tribal airspace.


The Blackfeet Tribe of Montana has sought to use its considerable natural resources relating to wind power to generate energy for the tribal nation and for sale. The Blackfeet Nation recently signed a development agreement with a private corporation for a 22-megawatt wind power project, which would be the first utility scale electrical generator using wind power constructed on tribal lands in the United States. The electrical power would be made available to the Bonneville Power Administration, the Glacier Electric Cooperative (the tribal source of electric power), and the Montana Power Company. At present, the Blackfeet Nation is excited about the project, and no opposition to it is expected.240 While interference with "wind power" is not expected to be a major concern with most tribal nations, comparisons with diversion and pollution of water flowing between the United States and Mexico could be made if required. Additionally, the airspace around airports has a history of restriction that might be made applicable to the "wind power" rights of tribal nations. Further, the heights of wind turbines and their potential restrictions on air traffic could pose another obstacle.



In 1987, Congress amended the CWA to treat Native American tribes like states under certain circumstances.242 In City of Albuquerque v. Browner,243 the operator of an Albuquerque waste treatment facility who discharged effluent into the Rio Grande River approximately five miles north of the Isleta Pueblo Indian Reservation under a national pollutant discharge elimination system (NPDES) permit issued by EPA, challenged tribal water quality standards. EPA set the permit discharge limits for the waste treatment facility so that it would meet "state" water quality standards. Albuquerque filed its action as EPA was in the process of revising the city's NPDES permit to meet the Isleta Pueblo's water quality standards.244

The Tenth Circuit confirmed tribal authority to enact water quality standards that were more stringent than federal standards. Furthermore, the court held that EPA had the power to require upstream effluent dischargers245 to comply with downstream tribal standards. In addition, the court held that in the absence of specific treaties or federal statutes granting state authority over tribal land, EPA was authorized under CWA § 303(c)(4)(B) to promulgate [31 ELR 11210] federal water quality standards for waters on Native American lands.246

The court held that EPA's construction of the 1987 Amendments to the CWA were justified "because it is in accord with powers inherent in Indian Tribal sovereignty."247 The court further held that the express incorporation in § 518 of §§ 401 and 402 gives EPA the authority to issue NPDES permits in compliance with a tribe's water quality standards. The court also approved a tribe's right under § 402 to establish its own NPDES program, with EPA having the power to issue NPDES permits in compliance with a downstream tribe's (state's) water quality standards,248 thereby denying Albuquerque's contention that the tribe did not have authority under § 518 to establish water quality standards more stringent than federal standards.

The Tenth Circuit also refused Albuquerque's contention that tribal standards could not be enforced beyond tribal reservation boundaries.249 In so doing, the court distinguished the procedural aspects of the case by concluding that EPA was exercising its authority under the CWA to regulate NPDES permits in compliance with downstream state or tribal water quality standards, rather than the tribe enforcing water quality standards outside the reservation.250 The extraterritorial jurisdiction of tribal water quality standards could present troublesome issues to states and private parties in future cases. The Tenth Circuit seemed to ensure that a tribal nation can set stringent water quality standards that will be upheld, assuming they have a rational basis.

EPA's approval of an application by the Confederated Salish and Kootenai Tribes to set water quality standards for all waters of the Flathead Indian Reservation in Montana has created a great deal of controversy. On-reservation non-Native Americans and the state of Montana challenged EPA's treatment of the tribes as states. They justified their opposition by pointing to the large on-reservation non-Native American population. The claim was dismissed on the basis that EPA's decision to treat the tribes like states "was supported by the administrative record, consistent with EPA's regulations, and not contrary to law."251

However, EPA's decision seems consistent with the principal that tribal nations should be treated as states, without considering which and how many different ethnic citizens reside in the reservation. This also seems consistent with the manner in which other states are treated since ethnic populations are not a typical consideration in EPA's regulatory scheme on environmental issues.

Surface Water Rights

Strong evidence of the Supreme Court's current position on surface water rights allocated to tribal nations was recently issued in Arizona v. California,252 the third opinion by the Supreme Court in litigation over water rights to the Colorado River. The underlying controversy in the case had its origin in an 1884 Executive Order by President Chester A. Arthur, which designated 72 square miles as a Native American Reservation, and was supplemented by an 1893 agreement that ceded 25,000 acres to the Quechan Tribe in return for certain obligations from the federal government, including construction of an irrigation canal and allotment of irrigated lands.253 The lawsuit began in 1952 when Arizona brought suit against California in the Supreme Court concerning water rights to the Colorado River, and was later joined by the states of Nevada, New Mexico, and Utah.254 Subsequently, the United States intervened on behalf of the Chemehuevi Indian Reservation, the Cocopah Indian Reservation, the Fort Yuma (Quechan) Indian Reservation, the Colorado River Indian Reservation, and the Fort Mojave Indian Reservation.255 Later, the Metropolitan Water District of Southern California and the Coachella Valley Water District were joined as additional parties.256

In Arizona, the Court established that tribal allotments of irrigation water take priority over claims by the states.257 The Court held that the apportionment of Colorado River water was governed by the Boulder Canyon Project Act of 1928 (Boulder Act),258 and by contracts made pursuant to the Boulder Act.259 The Court also held that the United States had reserved Colorado River water rights for the five Native American reservations under the so-called Winters' Doctrine, derived from Winters v. United States.260 In Winters, the Court held that tribal rights to river water were impliedly reserved for the tribal reservation, and were derived from implied grants from the federal government for future water uses on Native American lands.261 Therefore, relying on Winters, the Court in Arizona, stated that the tribal surface water rights were effective when each reservation was created, and were considered "present perfected rights," and given priority under the Boulder Act.262 In so holding, the Court considered all relevant aspects of its prior decisions in the case and numerous historical agreements and decrees.263

A recent Ninth Circuit case concerning surface water supplies from the Truckee River in Nevada also favored a tribal nation.264 In that case, the Pyramid Lake Paiute Tribe, with support from the federal government, appealed a lower court's judgment that no water rights had been forfeited. The Ninth Circuit reversed and remanded the case to the U.S. District Court in Nevada for further findings.265

Issues concerning the rights to tribal water supplies could expand if various tribes develop their economic base with industries that require large amounts of surface water. Many [31 ELR 11211] tribal nations have not considered demands for increased water supplies, except in the context of sufficient supplies for maintenance of salmon populations. However, some states, like Texas, assert ownership of surface water supplies, and conflicts in this area could add to the development of Native American law as it applies to surface water rights. Similarly, the association between clean water and healthy fish populations has not been addressed by tribal nations, although assertions of future tribal claims are predicted.

Fishing Rights

The rights of Native Americans to fish the surface waters associated with tribal lands have long been litigated. Some tribal nations negotiated fishing rights in treaties,266 for example, the Nez Perces secured the exclusive right to take fish in all the streams running through or bordering their reservation.267 Tribal fishing rights were first confirmed in United States v. Winans,268 where the rights of Native Americans were recognized to take fish "at all usual and accustomed places," and were based upon preexisting aboriginal subsistence rights.269

Salmon fishing has long been a tribal tradition for many of the nations in the northwestern United States. Construction of a dam has been stopped,270 and operation of a dam to release more water has been required when low water flows would have interfered with maintenance of fish habitat, such as salmon.271 It is a federal crime to hunt, trap, or fish on Native American land without lawful authority or permission.272 Recently, the Makah Indian Tribe of the state of Washington, claiming whaling rights from their 1885 Treaty, was approved to resume the harvest of five or less whales that visit the mouth of Juan de Fuca Strait near Neah Bay, Washington, after a lapse of three-quarters of a century.273

The relationship between the rights associated with fishing, fish populations associated with clean water, and water pollution that either adds toxic organic and inorganic contaminants or reduces oxygen levels in water has not been substantially addressed by tribal nations asserting environmental regulatory jurisdiction, states, or the federal government. However, such an association is a natural progression of the assertion of the rights of tribal nations to clean water and healthy and numerous fish populations.

Solid Waste

In Yankton Sioux Tribe v. Southern Missouri Waste District,274 the Yankton Sioux Tribe brought suit to confirm their right, and not that of South Dakota, to regulate a landfill site within the geographic boundaries of the reservation. The district court ruled that the tribe lacked regulatory authority over the waste management project, but held that the site was still part of the Yankton Sioux Indian Reservation, as defined by an 1858 treaty between the tribe and the United States.275 In South Dakota's appeal, the district court's decision was affirmed, and the state issued a permit for the landfill site that did not require the installation of a synthetic liner.276

In 1995, the Yankton Sioux sued to enjoin construction of the landfill pending tribal review, and for a declaratory judgment that the boundaries established in the 1858 treaty still define the extent of the reservation.277 The Eighth Circuit concluded that the landfill site was part of the reservation,278 and that EPA regulations applied, including the requirement that a synthetic liner be installed in each of the landfill cells to prevent leakage.279 However, the court also concluded that the tribe had not shown a right to regulate the landfill site because it had not established an exception to the general rule that Native American tribes cannot regulate the activities of non-Native Americans, even on a reservation. As previously ruled in Montana v. United States,280 and A-1 Contractors v. Strate,281 the court also declined to enjoin the landfill project, as long as it complied with EPA liner requirements.282

South Dakota appealed arguing that Congress intended to disestablish or diminish the tribe's land in 1894.283 On January 26, 1998, the Supreme Court reversed the Eighth Circuit,284 holding that "the unallotted lands ceded as a result of the 1894 Act did not retain reservation status."285 This case distinguished jurisdiction between reservation and ceded land.286 Tribal nations apparently may exercise jurisdiction of solid waste and land activities on legitimate reservations by enacting appropriate regulations, and thereby avoiding the types of problems encountered by the Yankton Sioux with the state of South Dakota.

Endangered Species Act (ESA)

In Pyramid Lake Paiute Tribe of Indians v. U.S. Department of the Navy,287 the Ninth Circuit found that the [31 ELR 11212] ESA288 did not create a trust relationship between the federal government and Native American tribes.289 Notwithstanding, the court found that the Secretary of the Navy had a fiduciary duty to preserve and protect the Pyramid Lake Paiute Tribe's property.290 Sections 7 and 9 of the ESA are designed to preserve listed species and protect tribal wildlife resources, but, at the same time, these two provisions can curtail or prevent the use of listed species and their habitats. Meanwhile, the critical habitat requirements of the ESA, which are also aimed at promoting the conservation of listed species, have significant effects on the use and enjoyment of Native American lands and resources while providing only minimal protection for the integrity of either the reservation environment or the species itself, implicating both aspects of the federal trust doctrine.291

There is no explicit provision in the ESA that evidences a congressional intent to abrogate Native American treaty rights.292 Further, neither the Supreme Court nor any circuit court of appeals has definitively ruled that the ESA's restrictions apply to Native American tribes engaging in activities protected by treaties. In fact, the only circuit court to squarely address the issue held in United States v. Dion,293 that the ESA does not abrogate treaty rights. On appeal of Dion, the Supreme Court found it unnecessary to reach the ESA issue, because it determined that the Bald Eagle Protection Act294 abrogated existing treaty rights to hunt or take protected eagles. The Court found that a specific section of that Act, which provided that the Secretary of the Interior may allow Native Americans to take eagles by permit for religious purposes, set forth clear evidence of Congress' intent that unpermitted, unauthorized takings would not be allowed, treaty rights notwithstanding.295

Restrictions may be placed on tribal activities under the ESA if necessary for conservation of a species. The conservation exception, first enunciated in Puyallup Tribe v. Department of Game of Washington,296 is typically applied to a state's regulation of Native American hunting and fishing rights held "in common" with other citizens.297 The conservation standard allows state regulation of tribal fish and game resources if the restriction is (1) reasonable and necessary for species preservation, (2) the least restrictive alternative, (3) nondiscriminatory, both facially and as applied, and (4) the tribe's own conservation measures do not achieve the conservation purpose.298 On a limited basis, restrictions of tribal activities may be imposed only if regulation of non-Native American activities do not accomplish conservation.

On June 5, 1997, the Secretarial Order on Tribal Rights, Trust Responsibilities and Endangered Species (Order) was issued by the U.S. Departments of Commerce and the Interior.299 The Order does not create any legally enforceable rights or change existing law,300 it merely directs the departments to comply with the following principles in an effort to fulfill the sovereignty objective:

1. Work directly with tribes on a government-to-government basis to promote healthy ecosystems.

2. Recognize that Indian lands are not subject to the same controls as federal public lands.

3. Assist tribes in developing and expanding tribal programs to promote healthy ecosystems without the need for conservation restrictions.

4. Consider impacts on Indian use of listed species for cultural and religious purposes.

5. Make information available and facilitate the exchange of information related to tribal trust resources and Indian lands by protecting tribal information from disclosure.301

California v. Cabazon Band of Mission Indians302 confirmed that states may regulate in Native American country where "the State interests at stake are sufficient to justify the assertion of State authority,"303 but held that such state jurisdiction would be preempted if it interferes or is incompatible with federal and tribal interests.304 Species conservation, one such compelling state interest, may justify state regulation of Native Americans and Native American lands.

The full impact of these ESA cases has not been seen. They conflict, somewhat, with other environmental cases involving Native American rights. In addition, cases involving Native American artifacts, including those containing eagle feathers, are evolving toward addressing problems associated with private collections such as those in museums and university studies.

Shoreline Protection

The Ninth Circuit has used Montana v. United States305 to uphold inherent tribal power to enforce a shoreline protection ordinance on non-Native American fee lands on the reservation.306 It is predicted that when Congress addresses amendments to applicable federal regulations, the shoreline regulatory rights possessed by tribal nations will be extended to resemble those of the states. In the future, tribal nations will most likely regulate all aspects of their environment [31 ELR 11213] and natural resources to the extent that it is not inconsistent with federal law.

Health, Safety, and Human Rights Violations

Tribes may also enforce health and safety standards.307 Tribes are likely to associate and enact health and safety regulations to enhance their environmental rules and make them more enforceable. Adding health and safety rules is a natural progression of sophisticated societies, and there is no good reason to eliminate such issues in the context of self-regulation in the environmental area.

There is a recent trend to treat environmental degradation as a human rights abuse. Concrete remedies for human rights violations often lack a proper forum.308 The Alien Tort Claims Act, which permits a civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States, may provide relief for aliens for torts committed in violation of customary international law, and, in particular human rights abuses.309 Whether a particular Native American with sovereign status may be considered an alien for purposes of federal law has not been addressed. Irrespective of categorization as an alien, a tribal nation, or a tribal member, a U.S. citizen may assert group human rights claims, including racial or religious discrimination, the right to culture, and individual human rights.310 Allegations of human rights violations may be effective in either the assertion of jurisdiction over a tribe's environmental affairs, or as challenges to environmental cases in other jurisdictions. The human rights area is mostly unexplored in the tribal environmental context, but provides a fertile ground for additional legal creativity, and support for tribal self-regulation.


"Tribes retain authority to zone where the region is of an essential Native American character, but may be divested of authority to zone where the region has lost that character."311 Recent Court cases involving land use controls have partially addressed the issue involving tribal authority to enforce laws against non-members. These decisions, primarily in land use cases, have resulted in eroding tribal power.312 The courts have asserted that the "loss of zoning authority to control land use planning also affects the state's capacity to regulate sensitive environmentally harmful land uses."313

In United States v. Mazurie,314 the Supreme Court addressed whether Congress could delegate its regulatory authority to tribes, resulting in tribal authority over non-Native Americans. Mazurie involved a violation of a tribal ordinance requiring a tribal license315 for the operation of a tavern by non-Native Americans on the Wind River Reservation. The Mazurie Court held that Congress has primary authority to control the sale of alcohol on fee land within tribal boundaries and that Congress could delegate this authority to a tribal government, thereby allowing for tribal authority over a non-Native American landowner with respect to alcohol.316

However, in Brendale v. Confederated Tribes & Bands of the Yakima Nation,317 the Court held that the Yakima could not impose an environmental impact statement requirement by zoning fee lands owned by non-tribal members in the "open" area of the reservation.318 In Justice Harry A. Blackmun's dissent in Brendale, he asserted that established principles of tribal sovereignty constructed by Chief Justice Marshall were undermined by Justice Byron R. White.319 However, the Supreme Court supported selective tribal authority in the "closed section" of the reservation because of so-called threats to the tribe's "cultural and spiritual values," and potential negative effects of the "general health and welfare of the Yakima Nation and its members."320

There is a very real possibility of "checkerboard jurisdiction" in land use controls. By restricting tribal authority to areas which are predominately Native American, states and counties would be allowed to assert jurisdiction over patches of reservations with a significant non-Native American population. Zoning has been used historically to segregate residential uses from commercial and industrial uses, however, since pollution knows no borders, this inconsistent and inefficient form of governance in the area of environmental regulation could have disastrous effects.321 It has been predicted that zoning based upon rational tribal environmental policies will be upheld. Health and safety concerns should predominate over strictly commercial issues.


In early 1999, the U.S. Court of Federal Claims reconfirmed the fiduciary duty imposed upon the federal government with respect to tribal timber rights.322 The court held that the BIA was required to properly manage, cut, and market Apache timber resources under appropriate forest management plans, and failed to do so.323 Timber rights were established [31 ELR 11214] in many treaties with tribal nations.324 For example, the Chickasaw Nation's desire to preserve its land and timber for the benefit of posterity is established by treaty.325 Other tribes asserted timber rights in treaties that established their right to compensation for timber used by non-Native Americans,326 and by providing for the construction of mills suitable for sawing timber.327 Tribal timber rights are a natural resource and can be asserted by tribal nations when they are threatened, such as in acid rain and other air pollution cases, and in water cases where flooding by surface waters regularly occurs.


Competitive leasing of federal coal mining rights must consider and defer to certain rights of tribal nations. In Northern Cheyenne Tribe v. Hodel,328 the Ninth Circuit held that coal deposits must be developed after considering the "cultural, social and economic impact" of issuing coal leases and halted if "significant socioeconomic impacts were found." Further, federal regulations regarding coal mining must be "developed in consultation, cooperation, and coordination with … Indian tribes…."329

Some tribal nations have ceded the right to explore and mine mineral deposits, and most treaties do not address minerals underlying tribal reservations.330 Any subsurface exploration, however, must eventually consider potential contamination of subsurface water supplies through water bearing aquifers and geologic mediums. Extension of federal environmental laws pertaining to subsurface water contamination, whether from exploration for oil and gas, or from mining of coal, gold, uranium, or other minerals, is easily justifiable.

Nuclear Waste

Due to the development of nuclear weapons, nuclear generators of electrical power, and the discovery of large uranium deposits on tribal lands, both tribes and the courts have had to address jurisdictional issues involving mining and nuclear power in Native American country.331 In Pacific Gas & Electric v. State Energy Resources Conservation,332 the Supreme Court confirmed that the United States, and not individual states, is responsible for nuclear safety under the Atomic Energy Act.333 Later, with the Nuclear Waste Policy Act Amendments of 1987 (NWPA),334 Congress authorized the siting of nuclear waste on tribal reservation lands. Acknowledging the desperate economic conditions of certain tribal nations, the federal government seems to be using the concept of tribal sovereignty as an excuse for allowing nuclear waste to gravitate toward tribal reservations.

After the United States proceeded with actions directed toward siting a permanent nuclear waste repository for the storage of high-level radioactive waste on tribal lands, Nevada brought suit to block nuclear waste storage activities within its boundaries. In Nevada v. Watkins,335 the court held that Nevada's legislative actions to prohibit nuclear waste storage were preempted by the NWPA.336 The court also invoked the Supremacy Clause of the Constitution, stating that the clause prohibits state legislation that "frustrates the full effectiveness of federal law."337

Beginning in 1991, the Mescalero Apaches sought to provide a monitored retrievable storage (MRS) facility for temporary storage of spent fuel from 111 commercial nuclear reactors and dismantled nuclear warheads. The Mescalero Apaches received grant monies on two separate occasions totaling $ 300,000 to study the feasibility of the temporary site on tribal lands.338 After 1993, however, funding for feasibility studies was cut by Congress under heavy political pressure from New Mexico.339 Subsequently, internal tribal disputes over nuclear waste disposal have led to a number of tribal votes and agreements between the Mescalero Apaches, various commercial nuclear power companies, and international venture companies.340 The Mescalero Apaches' proposal to store nuclear waste, whether temporary as proposed, or de facto permanent, raises important basic jurisdictional issues regarding a tribe's right of self-determination, and conflicts between federal jurisdiction, tribal jurisdiction, and state jurisdiction.

Ultimately, convenience of proposed tribal sites, lack of substantial adjacent populations as compared with more populous states, and the absolute necessity for nuclear storage facilities should assist any tribal nation, such as the Mescalero Apaches, to gain support for storage of nuclear wastes. Since most states will not wish nuclear wastes to be in their own backyards, they will promote tribal sovereignty in this area with a lack of opposition. Nearby states, however, may not share the view of the majority of states who are distant from a proposed nuclear waste facility. Courts ultimately are likely to defer to tribal views.

Environmental Jurisdiction: Arguments and Agreements

Nuclear Waste

Federal Jurisdiction

Federal courts have exclusive jurisdiction to hear matters involving federal questions and matters arising under treaties [31 ELR 11215] of the United States.341 Therefore, all state jurisdiction will be preempted for environmental issues arising under treaties between tribal nations and the United States.342

The "Marshall trilogy" of Court cases developed a framework of Native American sovereignty based on principles of international law, but the Supreme Court simultaneously granted significant regulatory power to Congress over tribal lands.343 This power to regulate was only granted to the federal government, and not to the states.344 In Cherokee Nation, Chief Justice Marshall introduced the trust doctrine, with language comparing the relationship between tribal nations and the federal government to that of "a ward to his guardian."345 The Court outlined the basic parameters of federal power, recognizing a generally autonomous tribal government subject to congressional authority, but largely free from state control.346 The so-called Tuscarora Rule suggests that federal statutes that simply refer to "all persons" include Native Americans as well.347 Further, under the federal government's general plenary power, Congress has virtually unlimited authority to legislate with respect to Native Americans.348 This power rests solely with Congress and not with federal agencies.349

In derogation of their long-recognized powers of inherent sovereignty, Native Americans are today subject to the unlimited legislative authority of Congress to pass any law that it pleases, including those that restrict or eliminate the powers of tribal governments. Due to the "plenary" nature of this power and the Supreme Court's concomitant judicial deference, the Court has rarely, if ever, limited the power of Congress since its first attempts to exert legislative power over Native American people in the late 19th century.350 Since the initiation of the "self-determination era," Congress and federal administrative agencies have taken huge steps to voluntarily restrain their vast power and to promote autonomy within tribes.351 For example, the BIA no longer forces a tribe to accept a lease or transaction that has been opposed by the tribal council, and as a practical matter the BIA approves all transactions that tribal governments endorse.352 EPA's Native American policy is to work with tribal governments on a government-to-government basis, taking into account all tribal "interests and concerns."353 Further, the Indian Environmental General Assistance Program Act of 1992 provides funding for tribes to investigate and determine their environmental protection needs.354 The Supreme Court, in Morton v. Mancari,355 required congressional statutes that deal with Native Americans to be "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."356

There are several arguments that nuclear waste and other issues affecting tribal nations are within the province of federal jurisdiction. The siting of a private MRS facility remains outside the direct scope of a federal statute.357 However, an MRS facility still requires a license from the Nuclear Regulatory Commission (NRC) and may be subject to other environmental and safety regulations surrounding the transport of nuclear waste. Bills are pending that would directly regulate private MRS facilities.358 The Supreme Court has implied that the federal government has "occupied the entire field of nuclear safety concerns,"359 and any subsequent court elaboration of this assertion could end the jurisdictional debate by states entirely in favor of federal jurisdiction. The Nuclear Waste Policy Act obligates the federal government to take possession of waste by 1998 if suitable temporary storage facilities are not built.360 Since that schedule has passed with no federal action, the storage issue remains open for tribal consideration.

State Jurisdiction

In general, proponents of state jurisdiction of nuclear waste depositories argue that MRS sites will affect the quality of life of the citizens of the state, and, therefore, the states should have some control over the use of land for environmental disposal of nuclear waste. Support for state jurisdiction is found in Worcester,361 where the Supreme Court indicated that state law was "extra-territorial" on Native American land, absent express congressional action to the contrary.362 In addition, Public Law No. 280363 required and/or permitted states to take substantial jurisdiction over civil and criminal actions within their borders, including certain tribal matters.364

Critical support for state jurisdiction is found in the 1959 case Williams v. Lee,365 where the Supreme Court focused [31 ELR 11216] on the issue of whether state action infringed on the dominant rights of tribal members to make and be governed by their own laws.366 The Williams Court held that the state could protect its interests, absent congressional action, "up to the point where Tribal self-government would be affected."367 This decision was later tempered by McClanahan,368 which relied on federal preemption to hold that a state could not levy a tax on a tribal member's income earned on the reservation.369

In 1983, the New Mexico v. Mescalero Apache Tribe,370 Court held that, unless substantial and predominant state interests are present, state law is preempted when it "interferes or is incompatible with … Tribal interests …."371 The Mescalero Court established four inquiries when examining preemption of state law: (1) the backdrop of tribal sovereignty; (2) the relevant federal interests; (3) the relevant tribal interests, and (4) the relevant state interests.372 The lack of tribal regulation or federal enforcement of environmental or nuclear issues, can strengthen a state's claim of jurisdiction.373

In Montana v. United States,374 the Supreme Court created an affirmative presumption that states, not tribes, have authority to regulate non-Native Americans on reservation land.375 In so holding, the Court examined the Fort Laramie Treaty's lack of express tribal authority, and substantially restricted inherent tribal sovereignty for assertion against the conduct of non-Native Americans.376 Ultimately, tribal authority has been found to be exclusive where non-Native Americans have entered into consensual dealings with the tribe or its members, or where Native American sovereign interests are implicated.377 However, state authority to regulate is exclusive where it does not impact tribal sovereign interests.378 Occasionally, courts have recognized concurrent jurisdiction between states and tribes over non-Native Americans on reservations.379

Opponents of nuclear waste disposal have been active in Utah, and are resisting the Goshute Indian Reservation's desire to store spent nuclear fuel in 122-ton welded steel casks for about 10 years, bringing tens of millions of dollars to the tribal reservation. Utah proposes to trade state lands for federal property surrounding the reservation and create a "jurisdictional moat" blocking access routes to the proposed site. Environmental officials say that the temporary status of the storage cannot truly be determined because the permanent storage facility for the spent fuel has not obtained certification as environmentally sound yet. Utah alleges seismic activity and the close proximity of an F-16 bombing range as risks for accidental spills, yet these risks can also be applied to several hazardous waste facilities already existing around the reservation.380

It is unclear what authority New Mexico, Utah, or other states that have substantial tribal presence, may have over tribal interests in nuclear waste storage.381 States could argue that no federal preemption exists due to the private nature of MRS.382 Courts are more apt to allow state regulation if a tribe has no history of regulating a given activity.383 Further, a state has a legitimate interest in protecting its environment from spillover effects of activities on reservations.384 States could attempt to regulate transportation of nuclear waste,385 but their efforts would probably fail due to conflicts with interstate commerce and the Indian Commerce Clause.

Tribal Jurisdiction

Arguments for tribal jurisdiction of nuclear waste depositories remain strong, but unclear. Under federal law, tribal power was recognized through concepts of international law, as national sovereignty.386 In Worcester,387 the Supreme Court suggested that a weaker power, such as a Native American nation, does not surrender its independence or its right to self-government by associating with and taking protection from a stronger nation.388 Tribal authority is generally presumed to be exclusive over internal self-governing matters within tribal territory, unless these powers have been limited by the federal plenary power or by treaty.389 Further, without an explicit assignment of jurisdiction to the states by Congress, state law is generally not applicable to Native American affairs within the confines of a Native American reservation.390

Broad power has been granted to the tribal governments, and it provides the necessary legal authority for the tribe to develop the MRS project within its borders. The Tribal Constitution vests in the president of a tribe the authority to serve as the contracting officer for the tribe,391 and provides the tribal council with the power to lease land.392 A tribal nation could strengthen its position by establishing a set of tribal regulations dealing with the MRS facility.393

[31 ELR 11217]

Cooperative Agreements

State and tribal interests are said to be best served when tribes and states work together in a cooperative fashion.394 For example, the state of Washington and the Puyallup Tribe have worked together to manage hazardous wastes on trust and fee lands within the reservation.395 Additionally, the state of Washington and the Confederated Tribes of the Colville Reservation reached an agreement on water pollution control within reservation boundaries.396 The state of North Dakota and the Three Affiliated Tribes of the Fort Berthold Reservation have agreed to coordinate regulation of pesticide applications on the reservation.397 In some cases, commerce with tribes has led to acceptance of environmental wastes and pollution from distant areas for disposal.398 The state of New Mexico recently entered into a Government-to-Government Policy Agreement with the 22 tribes whose reservation lands are located in whole or in part within the state. The agreement recognizes that mutual issues and problems, including environmental issues, confront the signatories. All parties have committed to address such issues and problems by establishing "a procedure setting out a cooperative and joint effort," predicated on mutual respect and recognition of sovereignty.399


Sovereign Native American nations typically have a functioning economy, self-government, unique culture, and geographically stable land. Historically, a young U.S. government dealt with Native American nations on an equal basis, signing treaties and recognizing their inherent sovereignty. Later, as the federal government became stronger and with its citizens becoming more numerous, it took advantage of its own sophistication and ability to use the English language, broke its own treaties, took away Native American lands, and stole the natural resources of Native American nations. Native American sovereignty was disregarded and U.S. courts, not international courts, interpreted treaties to America's advantage, often to accomplish the prevailing political purposes of the day. The federal government developed the so-called trust doctrine to support its politically based judicial decisions.

The "trust doctrine" applied to Native American nations has come full circle. Native Americans have become educated and sophisticated. Tribal nations are gaining advocates in record numbers. Although tribal wealth is still not even with that of the United States, revenues from gambling, hotels, and other tribal enterprises have played an important role in political gains. Native American lobbyists have impacted Congress, and have been instrumental in getting key tribal advocates elected and appointed to important political positions, both in states and in the federal government. The social consciences of all U.S. nationals, both young and old, and of U.S. politicians, are becoming increasingly more elevated and aligned with Native American positions. Consequently, the laws and judicial decisions have become more favorable to Native Americans; lawsuits brought by tribal attorneys have seen strong gains.

Although increasing tribal authority is the source of new tension between states and tribal nations, cooperative agreements are becoming more common. States now recognize that tribal nations are permanent players in the federal system. For example, the California legislature recently unanimously passed a resolution that reaffirmed state recognition of the sovereign status of Native American tribes as separate and independent political communities within the United States, and directed state agencies to conduct their activities in a "knowledgeable, sensitive manner that is respectful of Tribal sovereignty" when conducting work or developing policies affecting Native American tribal rights or trust resources.400 States have also recognized that tribal reservations have tremendous natural resources and potential economic strength that can now be used to pay for their development and to solve social and environmental problems without requiring the sponsorship of neighboring state taxpayers. Simply stated, states will be required to pay for Native American problems, unless tribal nations are allowed to govern themselves. Thus, the end of the full circle associated with the "trust doctrine."

Tribal nations will gain extra support in all their environmental concerns because of backing from the federal government. Skirmishes between states and tribal nations will increasingly be decided in favor of the tribal nations in order to effectuate the unstated political and social goals of "treatment in the same manner as a state," thus, in effect, being treated environmentally more sovereign than states. These trends, in my opinion, are certainly justified by the historically poor treatment of tribal nations, and supported by the string of broken promises associated with broken treaties, human rights abuses, and crimes perpetuated upon Native Americans. To the extent that tribal nations desire greater control over their natural resources, I would recommend that they exercise such jurisdiction, and be permitted to show proper respect for "Mother Earth."


2. See 18 U.S.C. § 1151 (definition of Indian country).

3. Alaska v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286, 1293 (9th Cir. 1996) (federal set-aside and superintendence are pre-requisites to a dependent Native American community).

4. See 18 U.S.C. § 1151(c) (Indian allotments are lands held in trust for individual Native Americans).

5. See generally 18 U.S.C. § 1151; 25 U.S.C. § 1452(d); 12 U.S.C. § 4702(11); Donnelly v. United States, 228 U.S. 243 (1913).

6. William H. Gelles, Tribal Regulatory Authority Under the Clean Air Act, 3 ENVTL. LAW 363, 367-68 (1997).

7. See Solem v. Bartlett, 465 U.S. 463, 470 (1984); Yankton Sioux Tribe v. Southern Mo. Waste Management Dist., 99 F.3d 1439, 1445, 27 ELR 20374, 20376 (8th Cir. 1996); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1977).

8. See Rosebud Sioux, 430 U.S. at 586-88; Yankton, 99 F.3d at 1445, 27 ELR at 20376.

9. See Rosebud Sioux, 430 U.S. at 586.

10. See id. at 586-88.

11. See Gelles, supra note 6, at 369.

12. See id. at 368-69.

13. United States v. Mazurie, 419 U.S. 557 (1975).

14. See U.S. CONST. art. I, § 8, cl. 3.

15. See Steven McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. REV. L. & SOC. CHANGE 217, 223 (1993).

16. See Jonathon Littman, Indians Vulnerable to Outsider's Abuse, S.F. CHRON., Sept. 6, 1991, at A8.

17. U.S. CONST. art. I, § 8, cl. 3 (emphasis added).

18. 30 U.S. (5 Pet.) 1 (1831).

19. 31 U.S. (6 Pet.) 515 (1832).

20. See Cherokee Nation, 30 U.S. (5 Pet.) at 17.

21. See Worcester, 31 U.S. (6 Pet.) at 554-56.

22. See id. at 555-57, 562.

23. See id. at 552-53.

24. See id. at 549-62.

25. See id. at 515.

26. Id. at 557.

27. 249 U.S. 110 (1919).

28. See id. at 113.

29. Id.

30. 261 U.S. 219 (1923).

31. Id. at 229.

32. 295 U.S. 103, 108-12 (1935).

33. See Richard Ansson, The North American Agreement on Environmental Cooperation and Native American Tribes: How Can Tribal Interests Best Be Protected?, 66 UMKCL. REV. 837, 855 (1998).

34. 445 U.S. 535 (1980) (Mitchell I).

35. 463 U.S. 206 (1983) (Mitchell II).

36. See Mitchell I, 445 U.S. at 542.

37. Mitchell II, 463 U.S. at 282.

38. See id. at 224.

39. See id. at 225.

40. See Nell Jessup Newton, Indian Claims in the Courts of the Conqueror, 41 AM. U. L. REV. 753, 769-70 (1992). See also 28 U.S.C. § 1362.

41. See Newton, supra note 40, at 769-70. See also 28 U.S.C. § 1362.

42. See 28 U.S.C. §§ 1491, 1505.

43. See generally Mitchell II.

44. See U.S. CONST. art. II.

45. See id. art. VI.

46. See CHARLES J. KAPPLER, WASHINGTON: GOVERNMENT PRINTING OFFICE, INDIAN AFFAIRS: LAWS AND TREATIES (1904); http://digital.library.okstate.edu/kappler/index.htm.

47. See id. at 1076-77.

48. See Treaty With the Cherokee, July 2, 1791, U.S.-Cherokee Nation, 7 Stat. 39, Feb. 7, 1792.

49. See Agreement With the Columbia and Colville, July 7, 1883, 23 Stat. 79, Ratified July 4, 1884.

50. See id.

51. See id.

52. Vienna Convention on Laws and Treaties, Jan. 27, 1980, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95.

53. Id. art. 2.

54. Id. art. 26.

55. See id. arts. 46-52.

56. See id.

57. See id. art. 60.

58. Id. arts. 31-32.

59. See Treaty of Bayonne, 1866, Fr.-Spain.

60. BARRY E. CARTER & PHILLIP R. TRIMBLE, INTERNATIONAL LAW 1189 (Little, Brown & Co. 1991).

61. See id. at 1190.

62. See International Boundary and Water Commission's Minute 242, August 1973.

63. See CARTER & TRIMBLE, supra note 60, at 1198-99.

64. See Boundary Waters Treaty, 1909, U.S.-Can.

65. See CARTER & TRIMBLE, supra note 60, at 1195.

66. See 17 U.S.T. 1566, T.I.A.S. No. 6114; See also 8 INT'L LEG. MAT. 118, 133-42 (1969), 7 CAN. Y.B. INT'L L. 316-18 (1969).

67. See 3 R.I.A.A. 1905, 1907 (U.S. v. Can. 1949).

68. Id.

69. See 11 CAN. Y.B. INT'L L. 333-34 (1973).

70. Stockholm Declaration, Principal 22.

71. See Restatement of Foreign Affairs Law, § 601, 1988.

72. North American Free Trade Agreement, Jan. 1, 1994; North American Free Trade Agreement Implementation Act, §§ 2-533, 19 U.S.C.A. §§ 3301-3473.

73. See Ansson, supra note 33, at 858.

74. See id. at 844.

75. See David Eaton, NAFTA and the Environment: A Proposal for Free Trade in Hazardous Waste Between the United States and Mexico, 27 ST. MARY'S L.J. 716-31 (1996).

76. See Aaron Holland, The North American Agreement on Environmental Cooperation: The Effect of the North American Free Trade Agreement on the Enforcement of United States Environmental Laws, 28 TEX. TECH. L. REV. 1220-21 (1997).

77. Mexico generates 6.2 million tons of toxic waste per year. However, only 15% of this amount is disposed of properly. The maquiladora industries have an even worse rate of compliance.

Indeed, only 30 of the 164 tons of hazardous waste per day, from approximately [5%] of the maquiladoras, is properly disposed of in either Mexican TSD facilities or in programs where waste is nationalized by law. Meanwhile, approximately forty-four tons of hazardous waste per day generated by maquiladoras are unaccounted for.

Eaton, supra note 75, at 724-29.

78. Holland, supra note 76, at 1246.

79. See Eaton, supra note 75, at 728.

80. See id. at 723.

81. 25 U.S.C. §§ 461-479 (1934).

82. See Ansson, supra note 33, at 851.

83. 22 U.S. (9 Wheat.) 1 (1824).

84. See id. at 1-7.

85. See id. at 240.

86. See id. at 73-75.

87. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

88. See id. at 20.

89. Chief Justice Marshall writing for the majority of the Court, stated:

If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater wrongs are to be apprehended, this is not the tribunal which can redress the past or present.

Id. at 20.

90. See id. at 17.

91. See id.

92. Id. at 30.

93. See id. at 16.

94. See id. at 16-17.

95. See id. at 50-80.

96. Id. at 76.

97. See id. at 75-76.

98. 31 U.S. (6 Pet.) at 515.

99. See id. at 532.

100. See id. at 562-63.

101. See id. at 515-96.

102. See In re Kansas Indians, 72 U.S. (5 Wall.) 737 (1866).

103. See id. at 757, 759, 761.

104. See id. at 755-56.

105. See In re New York Indians, 72 U.S. (5 Wall.) 761 (1866).

106. See id. at 771.

107. See Choctaw, O. & G.R. Co. v. Harrison, 235 U.S. 292, 298-99 (1914).

108. See Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522, 530 (1916).

109. See Gillespie v. Oklahoma, 257 U.S. 501, 506 (1922).

110. See Childers v. Beaver, 270 U.S. 555 (1926).

111. See id. at 555-59.

112. See Warren Trading Post Co. v. Arizona State Tax Comm'n, 380 U.S. 685, 690-92 (1965).

113. See id. at 691.

114. 411 U.S. 164, 165 (1973).

115. See id. at 172.

116. See, e.g., Rice v. Olson, 324 U.S. 786, 790-93 (1945).

117. Id. at 789.

118. See id. at 791-92.

119. 104 U.S. 621, 621-22 (1881).

120. 18 U.S.C. § 1152.

121. See also New York ex rel. Ray v. Martin, 326 U.S. 496 (1946); Draper v. United States, 164 U.S. 240 (1896). The Supreme Court was invited to overrule this line of cases as having no basis in either the language or legislative history of 18 U.S.C. § 1152, but declined to do so in United States v. Antelope, 430 U.S. 641, 644 n.4 (1977).

122. See Utah & N. Ry. v. Fisher, 116 U.S. 28, 28-33 (1885).

123. 169 U.S. 264 (1898).

124. See id. at 273.

125. See Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 350-51 (1949).

126. See Helvering v. Bankline Oil Co., 303 U.S. 362, 367-68 (1938).

127. 319 U.S. 598, 612 (1943).

128. See id. at 607-12.

129. 498 U.S. 505, 514 (1991).

130. Id. at 510.

131. 411 U.S. 941, 941-44 (1973).

132. 411 U.S. 145 (1973).

133. 425 U.S. 463, 470-83 (1976).

134. 447 U.S. 134 (1980).

135. See id. at 150-52.

136. See id. at 152.

137. 471 U.S. 759 (1985).

138. 52 Stat. 347 (1938) (current amended version at 25 U.S.C. § 396a).

139. 44 Stat. (Part 2) 1347 (1927) (current amended version at 25 U.S.C. § 398c).

140. See Blackfeet Tribe, 471 U.S. at 766-68.

141. 490 U.S. 163 (1989).

142. See id. at 187.

143. See id. at 186-87.

144. 52 Stat. 347 (1938) (current amended version at 25 U.S.C. § 396a).

145. 43 Stat. 244 (1924) (current amended version at 25 U.S.C. § 398).

146. 44 Stat. (Part 2) 1347 (1927) (current amended version at 25 U.S.C. § 398c).

147. See Cotton Petroleum Corp., 490 U.S. at 187.

148. See id. at 186.

149. 448 U.S. 136 (1980).

150. See id. at 142-53.

151. See id. at 146-53.

152. 495 U.S. 676 (1990).

153. See id. at 686-88.

154. See id. at 688.

155. See Act of Oct. 28, 1991, Pub. L. No. 102-137, 105 Stat. 646 (deleting Pub. L. No. 101-511, § 8077(d), 104 Stat. 1892).

156. 435 U.S. 191, 194-96 (1978).

157. See id. at 194-96 (prohibiting trial court from trying nonmembers of the tribe for crimes committed on tribal land).

158. Opinion No. JM-17, Jim Mattox, Attorney General of Texas, Mar. 22, 1983.

159. 25 U.S.C. §§ 461-479.

160. See id.

161. JERRY MANDER, IN THE ABSENCE OF THE SACRED 279-83 (1991); Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1472, 1552 (1994).

162. See Wood, supra note 161, at 1552-55.

163. 25 U.S.C. § 476 provides:

Any Indian Tribe, or Tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and by-laws …. In addition to all powers vested in any Tribe or Tribal council by existing law, the constitution adopted by said Tribe shall also vest in such Tribe or its Tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary [of the Interior]; to prevent the sale, disposition, lease, or incumbrance of Tribal lands, interests in lands, or other Tribal assets without the consent of the Tribe; and to negotiate with the Federal, State, and local governments ….


164. See id. § 477.

165. See id.

166. 450 U.S. 544 (1981).

167. See id. at 565-66.

168. Id. at 566.

169. 941 F. Supp. 945, 958, 27 ELR 20421, 20424 (D. Mont. 1996).

170. See id.

171. Id. (quoting Montana v. United States, 450 U.S. 544, 565-66 (1981)).

172. 645 F.2d 701, 11 ELR 20526 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981).

173. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. See also Nance, 645 F.2d at 702-03, 11 ELR at 20526.

174. See id. at 702-03, 11 ELR at 20527.

175. See id. at 711, 11 ELR at 20530.

176. See Nance v. United States, 456 U.S. 918 (1981).

177. See Nance, 645 F.2d at 712-14, 11 ELR at 20530-31.

178. Id. at 714, 11 ELR at 20531.

179. 517 U.S. 44, 47-48 (1996).

180. See id. at 47.

181. See http://www.epa.gov/ (last updated Aug. 17, 2001).

182. See Washington Dep't of Ecology v. EPA, 752 F.2d 1465, 1469-70 (9th Cir. 1985).

183. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

184. Washington Dep't of Ecology, 752 F.2d at 1469.

185. 752 F.2d 1465, 1469 (9th Cir. 1985).

186. Id. at 1471.

187. William Ruckelshaus, EPA Policy for the Administration of Environmental Programs on Indian Reservations (Nov. 8, 1984). Ruckelshaus stated that EPA's role on Indian reservations would be to "protect human health and the environment." Further, he committed that EPA's policies would always give "special consideration to Tribal interests," and closely involve "Tribal Governments in making decisions and managing environmental programs affecting reservation lands." Ruckelshaus established the following EPA principles concerning tribal nations:

1. The agency stands ready to work directly with Indian tribal governments on a one-to-one basis (the "government-to-government" relationship), rather than as subdivisions of other governments.

2. The agency will recognize tribal governments as the primary parties for setting standards, making environmental policy decisions and managing programs for reservations, consistent with agency standards and regulations.

3. The agency will take affirmative steps to encourage and assist tribes in assuming regulatory and program management responsibilities for reservation lands.

4. The agency will take appropriate steps to remove existing legal and procedural impediments to working directly and effectively with tribal governments on reservation programs.

5. The agency, in keeping with the federal trust responsibility, will assure that tribal concerns and interests are considered whenever EPA's actions and/or decisions may affect reservation environments.

6. The agency will encourage cooperation between tribal, state and local governments to resolve environmental problems of mutual concern.

7. The agency will work with other federal agencies which have related responsibilities on Indian reservation to enlist their interest and support in cooperative efforts to help tribes assume environmental program responsibilities for reservations.

8. The agency will strive to assure compliance with environmental statutes and regulations on Indian reservations.

9. The agency will incorporate these Indian policy goals into its planning and management activities, including its budget, operating guidance, legislative initiatives, management accountability system and ongoing policy and regulation development processes.


188. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465.

189. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. EPA established the Tribal Authority Rule on February 12, 1998, under the 1990 Amendments to the CAA.

190. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

191. See http://www.epa.gov/Region06/6xa/tribal.htm (last updated May 23, 2001); Nance v. EPA, 645 F.2d 701 (9th Cir. 1981).

192. See http://www.ncsl.org/programs/esnr/susanpub.htm (last visited Aug. 22, 2001).

193. See http://www.epa.gov/indian/ (last updated July 6, 2001).

194. Mission Statement, American Indian Environmental Office, http://www.epa.gov/indian/miss.htm (last visited Aug. 22, 2001).

195. See id.

196. See http://www.epa.gov/indian/programs.htm (last visited Aug. 22, 2001).

197. Memorandum from Christine Todd Whitman, EPA Administrator, to EPA Employees (July 11, 2001) (on file with the author).

The United States has a unique relationship with Tribal Governments based on the Constitution, treaties, statues, Executive Orders, and court decisions. This relationship includes a recognition of the right of tribes as sovereign governments to self-determination, and an acknowledgment of the Federal government's trust responsibility to the Tribes. I hereby reaf-firm the Agency's commitment to this long-established policy and the principles therein that guide the Agency in building a stronger partnership with Tribal Governments to protect the human health and environment of Indian communities.


198. See http://www.epa.gov/ (last updated Aug. 17, 2001).

199. See id.

200. See id.

201. See id.

202. See id.

203. See id.

204. See http://www.epa.gov/tribalmsw/aboutprog.htm (last updated Nov. 1, 1999).

205. See http://jan.ucc.nau.edu/-man5/itep/ (last updated Aug. 4, 2001).

206. See http://cet.nau.edu/itep/ (last updated Aug. 4, 2001). According to its website, Institute for Tribal Environmental Professionals was created, in cooperation with EPA, "to act as a catalyst among Tribal governments," federal, state and local governments, and private and university personnel to support environmental protection of tribal natural resources. See id.

207. See http://jan.ucc.nau.edu/ (last updated Aug. 4, 2001).

208. See http://www.epa.gov/tribalmsw/aboutprog.htm#link1 (last updated Nov. 1, 1999).

209. See http://www.epa.gov/indian/ (last updated July 6, 2001).

210. See id.

211. See http://www.epa.gov/earth1r6/6xa/Tribal/summit98.htm (last updated May 23, 2001).

212. See http://www.epa.gov/earth1r6/6xa/Tribal/office.htm (last updated May 23, 2001).

213. See Monette, Treating Tribes as States Under Federal Statutes in the Environmental Arena: Where Laws of Nature and Natural Law Collide, 21 VT. L. REV. 111, 142-43 (1996).

214. 752 F.2d at 1469.

215. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

216. Washington Dep't of Ecology, 752 F.2d at 1466.

217. See id. at 1467-68.

218. See id. at 1469-71.

219. Id. at 1469-70.

220. See id. at 1470; see also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980).

221. See Washington Dep't of Ecology, 752 F.2d at 1470; see also Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 660 (9th Cir. 1975), cert. denied, 429 U.S. 1038 (1977); Seminole Nation v. United States, 316 U.S. 286, 297 (1942).

222. See Washington Dep't of Ecology, 752 F.2d at 1470; see also United States v. Kagama, 118 U.S. 375, 383-84 (1886).

223. Washington Dep't of Ecology, 752 F.2d at 1470; see also White Mountain, 448 U.S. at 141-44.

224. Washington Dep't of Ecology, 752 F.2d at 1470; see also Rice v. Rehner, 462 U.S. 713 (1983).

225. See Washington Dep't of Ecology, 752 F.2d at 1471.

226. See id.

227. See id.; see also Indian Self-Determination Act of 1975, 25 U.S.C. § 450a(b); EPA Policy for Program Implementation on Indian Lands, December 9, 1980, at 5; Statement by the President; Indian Policy, January 24, 1983, at 2; U.S. EPA, OFFICE OF FEDERAL ACTIVITIES, ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN LANDS 35 (1983).

228. See Washington Dep't of Ecology, 752 F.2d at 1471-72.

229. 867 F.2d 1094 (8th Cir. 1989).

230. See id. at 1095-96.

231. See id. at 1094-1101. (EPA was dismissed as a defendant by the district court.)

232. See id. at 1095-1101.

233. 42 U.S.C. §§ 7401-7671a, ELR STAT. CAA §§ 101-618.

234. 752 F.2d at 1467-68.

235. 211 F.3d 1280, 1284, 30 ELR 20565 (D.C. Cir. 2000).

236. 42 U.S.C. § 7601(d)(2)(B), ELR STAT. CAA § 301(d)(2)(B).

237. See, e.g., Florida Dep't of Bus. Regulation v. Department of the Interior, 768 F.2d 1248 (11th Cir. 1985) (Seminoles petitioned the Secretary of the Interior to take land into trust for the benefit of the tribe), cert. denied, 475 U.S. 1011 (1986).

238. See 59 Fed. Reg. 43960 (Aug. 25, 1994).

239. See Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 128 (1993).

240. See http://ens.lycos.com/ens/sep2000/2000L-09-14-01.html (last visited Aug. 22, 2001).

241. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

242. See CWA, Pub. L. No. 92-500, 86 Stat. 896 (Oct. 18, 1972), amended by Act of Feb. 4, 1987, Pub. L. No. 100-4, tit. V, § 506, 101 Stat. 76 (codified at 33 U.S.C. §§ 1241-1387).

243. 97 F.3d 415, 415-16, 27 ELR 20283, 20284 (10th Cir. 1996).

244. See id. at 419, 27 ELR at 20284.

245. Certain wastewater dischargers, and stormwater dischargers, must obtain effluent permits from EPA under NPDES, which takes into account the water quality standards of the receiving watershed.

246. See Albuquerque, 97 F.3d at 418, 27 ELR at 20286-87.

247. Id. at 423, 27 ELR at 20287.

248. See id. at 423-24, 27 ELR at 20287.

249. See id. at 421, 27 ELR at 20287.

250. See id. at 424, 27 ELR at 20287.

251. Montana v. EPA, 941 F. Supp. 945|}, 958, 27 ELR 20421, 20424 (D. Mont. 1996) (holding that tribes may administer an EPA-approved water quality program that includes regulation of non-members and non-member fee lands).

252. 120 S. Ct. 2304, 30 ELR 20666 (2000) (Arizona III).

253. See id. at 2312, 30 ELR at 20667.

254. See id. at 2310, 30 ELR at 20666.

255. See id.

256. See id. at 2311-12, 30 ELR at 20667.

257. See id. at 2318-21, 30 ELR at 20668-71.

258. 43 U.S.C. § 617 et seq.

259. See Arizona III, 120 S. Ct. at 2318-22, 30 ELR at 20668-71.

260. 207 U.S. 564 (1908).

261. See id. at 576-77.

262. See Arizona III, 120 S. Ct. at 2306-11, 30 ELR at 20666-67.

263. See id.

264. See United States v. Orr Water Ditch Co., 2001 U.S. App. LEXIS 15045 (July 5, 2001).

265. See id. at 8, 33.

266. See KAPPLER, supra note 46; see also http://digital.library.okstate.edu/kappler/index.htm.

267. See Treaty With the Nez Perces, June 11, 1855, U.S.-Nez Perces, 12 Stat. 957, Ratified Mar. 8, 1859.

268. 198 U.S. 371 (1905).

269. See id. at 381.

270. See Confederated Tribes of the Umatilla Indian Reservation v. Alexander, 440 F. Supp. 553, 6 ELR 20484 (D. Or. 1977).

271. See Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation, 763 F.2d 1032 (9th Cir. 1985) cert. denied, 474 U.S. 1032 (1985); United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984).

272. See 18 U.S.C. § 1165.

273. See http://ens-news.com/ens/jul2001/2001L-07-13-02.html (last visited Aug. 22, 2001).

274. 99 F.3d 1439, 27 ELR 20374 (8th Cir. 1996).

275. See Yankton Sioux Tribe v. Southern Mo. Waste Management Dist., 890 F. Supp. 878, 890-91, 26 ELR 20505, 20511 (D.S.D. 1995).

276. See id. at 889-90, 26 ELR at 20510-11.

277. See Yankton, 99 F.3d at 1439, 27 ELR at 20374.

278. The Eighth Circuit held that the 1894 act ratifying the 1892 agreement did not disestablish or diminish the size of the reservation. See id. at 1442, 27 ELR at 20375.

279. South Dakota had approved the project plan to use only a two-foot compacted clay liner to contain the garbage. Since EPA had granted authority to the state to approve projects within its jurisdiction, synthetic liners would not have been required if the site were not on the Yankton Sioux Indian Reservation.

280. 450 U.S. 544, 564-66 (1981).

281. 76 F.3d 930 (8th Cir. 1996) (en banc), cert. granted, 117 S. Ct. 37 (1996) (matters affecting tribal self-government and consensual relations with the tribe are excepted).

282. See Yankton, 99 F.3d at 1442, 27 ELR at 20375.

283. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 28 ELR 20293, 20295-96 (1998).

284. See id.

285. Id.

286. See id.

287. 898 F.2d 1410, 20 ELR 20572 (9th Cir. 1990).

288. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

289. See Pyramid Lake, 898 F.2d at 1420, 20 ELR at 20577.

290. See id.

291. See Sandra B. Zellmer, Indian Lands as Critical Habitat for Indian Nations and Endangered Species: Tribal Survival and Sovereignty Come First, 43 S.D. L. REV. 398 (1998).

292. See Sally J. Johnson, Honoring Treaty Rights and Conserving Endangered Species After United States v. Dion, 13 PUB. LAND L. REV. 179 (1992).

293. 752 F.2d 1261, 1264-65, 15 ELR 20093 (8th Cir. 1985) (en banc) (holding that the ESA did not abrogate Dion's treaty right to hunt on the Yankton Sioux Indian Reservation), rev'd on other grounds, 476 U.S. 734, 16 ELR 20676 (1986).

294. 16 U.S.C. §§ 1531-1544.

295. See Dion, 752 F.2d at 1264-65, 15 ELR at 20093.

296. 391 U.S. 392 (1968).

297. See, e.g., Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 9 ELR 20517 (1979).

298. See United States v. Washington, 384 F. Supp. 312 (D. Wash. 1974), aff'd, 520 F.2d 676, 5 ELR 20552 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).

299. See Zellmer, supra note 291, at 405.

300. See id. at 410.

301. Id. at 406-07.

302. 480 U.S. 202 (1987).

303. Id. at 216-17; see also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-34 (1983).

304. Id.

305. 450 U.S. 544 (1981).

306. See Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 963-65 (9th Cir. 1982) (enforcing a tribal shoreline protection ordinance as a valid exercise of civil jurisdiction).

307. See Cardin v. De La Cruz, 671 F.2d 363, 366 (9th Cir. 1982), cert. denied, 459 U.S. 967 (1982) (holding that tribes may promulgate and enforce health and safety regulations).

308. See Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19, 1996, art. 5(4), 999 U.N.T.S. 302, 303 (1983).

309. See 28 U.S.C. § 1350.

310. See Richard L. Herz, Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment, 40 VA. J. INT'L L. 545, 547-638 (2000).

311. Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 441-43, 446-47 (1989) (holding that the tribe did not have authority to zone land owned in fee by non-Native Americans).

312. See A. Cassidy Sehgal, Indian Tribal Sovereignty and Waste Disposal Regulation, 5 FORDHAM ENVTL. L.J. 431, 437 (1994).

313. Judith V. Royster, Environmental Protection and Native American Rights: Controlling Land Use Through Environmental Regulation, 1 KAN. L.J. & PUB. POL'Y 89 (1991) (discussing the similarities of land use and environmental regulation and the obstacles to environmental control created by decisions of the Supreme Court).

314. 419 U.S. 544 (1975).

315. The tribal ordinance was promulgated under 18 U.S.C. § 1161, requiring both state and tribal liquor licenses.

316. Kevin B. Gover & Jana L. Walker, Tribal Environmental Regulation, 36 FED. B. NEWS & J. 441 (1989).

317. 492 U.S. 408 (1989).

318. See id. at 432.

319. See id. at 451-52; Poole, Nuclear Sovereignty: Reservation Waste Disposal for the Twenty-First Century and Beyond, 4 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 173 (1998).

320. Brendale, 492 U.S. at 443-44.

321. Royster, supra note 313, at 91.

322. See Apache Tribe of the Mescalero Reservation v. United States, 43 Fed. Cl. 155, 156, 163-69 (Fed. Cl. 1999).

323. See id. at 156-57.

324. See KAPPLER, supra note 46; see also http://digital.library.okstate.edu/kappler/index.htm.

325. See Treaty With the Chickasaw, Oct. 22, 1832, U.S.-Chickasaw Nation, 7 Stat. 388.

326. See Treaty With the Creeks, Aug. 7, 1856, U.S.-Creek Nation, 11 Stat. 699, Ratified Aug. 16, 1856.

327. See Treaty With the Ponca, Mar. 12, 1858, U.S.-Ponca Nation, 12 Stat. 997, Ratified Mar. 8, 1859.

328. 851 F.2d 1152, 1154-55, 1157-58, 18 ELR 20865 (9th Cir. 1988).

329. 43 C.F.R. § 3420.0-2.

330. See KAPPLER, supra note 46; see also http://digital.library.okstate.edu/kappler/index.htm.

331. See Wood, supra note 161, at 1481.

332. 461 U.S. 190, 13 ELR 20519 (1983).

333. See id. at 211-15, 13 ELR at 20522-25.

334. 42 U.S.C. §§ 10101-10226.

335. 914 F.2d 1549, 20 ELR 21360 (9th Cir. 1990).

336. Id., 20 ELR at 21366-67.

337. Id. at 1554-58, 20 ELR at 21366-67.

338. See Jon D. Erickson et al., Monitored Retrievable Storage of Spent Nuclear Fuel in Indian Country: Liability, Sovereignty, and Socioeconomics, 19 AM. INDIAN L. REV. 73, 79 (1995).

339. See Energy and Water Development Appropriations Act of 1994, Pub. L. No. 103-126, 107 Stat. 1327 (1993).

340. See Leonard, Sovereignty, Self-Determination, and Environmental Justice in the Mescalero Apache's Decision to Store Nuclear Waste, 24 ENVTL. AFF. 681 (1997).

341. See 28 U.S.C. § 1331.

342. See id.

343. See Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

344. See Cherokee Nation, 30 U.S. (5 Pet.) at 16-17.

345. Id. at 17.

346. See Mary Beth West, Natural Resources Development on Indian Reservations: Overview of Tribal State and Federal Jurisdiction, 17 AM. INDIAN L. REV. 71, 72 (1992).

347. See Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960) (the Court first recognized this power).

348. See Jennifer Smith Haner, Tribal Solutions to On-Reservation Environmental Offenses: Jurisdictional Parameters, Cultural Considerations, and Recommendations, 19 AM. INDIAN L. REV. 109 (1995).

349. See Judith Royster & Rory Fausett, Control of the Reservation Environment: Tribal Primacy, Federal Delegation, and the Limits of State Intrusion, 64 WASH. L. REV. 581, 587 (1989).

350. See McSloy, supra note 15, at 223.

351. See FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 180-204 (3d ed. 1982).

352. See Wood, supra note 161, at 1480.

353. Martin D. Topper, Environmental Protection in Indian Country: Equity or Self-Determination?, 9 ST. JOHN'S J. LEGAL COMMENT. 693, 695 (1994).

354. See id. at 697 (citing 42 U.S.C. § 4368(b)).

355. 417 U.S. 535 (1974).

356. Id. at 555.

357. See Nuclear Waste Policy Act Amendments of 1987, 42 U.S.C. §§ 10101, 10241-10251.

358. See Mescalero Apaches Private SF Storage Plan Moves Ahead; Federal Program Stalled, Nuclear Waste News (IAC), Dec. 14, 1995, available in LEXIS, News Library, IAC Energy and Oil File.

359. Pacific Gas & Elec. Co. v. State Energy Resources & Dev. Comm'n, 461 U.S. 190, 212, 13 ELR 20519 (1983).

360. See Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10222(a)(5)(B).

361. 31 U.S. (6 Pet.) at 515.

362. See id. at 542, 561.

363. Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326).

364. See Royster & Fausett, supra note 349, at 607-08.

365. 358 U.S. 217 (1959).

366. See id. at 220.

367. Id. at 219.

368. 411 U.S. at 179-80.

369. See id.

370. 462 U.S. 324, 333-34 (1983) (tribal regulatory scheme covering fish and wildlife, approved by federal government, preempts state fish and wildlife regulations).

371. Id. at 333-35.

372. See id. at 325-44; Royster & Fausett, supra note 349, at 644-49.

373. See Haner, supra note 348, at 118.

374. 450 U.S. 544 (1981).

375. See id. at 565 (discussing power relationship between state and tribe).

376. See id. at 558-59.

377. See Royster & Fausett, supra note 349, at 599.

378. See id. at 606.

379. See id. at 606-07.

380. WASH. POST, Mar. 3, 1999, at A3.

381. See Leonard, supra note 340, at 681.

382. See id.

383. See Rice v. Rehner, 463 U.S. 713, 719-20 (1983).

384. See Haner, supra note 348, at 118.

385. See Nancy Collins & Andrea Hall, Nuclear Waste in Indian Country: A Paradoxical Trade, 12 LAW & INEQ. 335 (1994).

386. See COHEN, supra note 351, at 232.

387. 31 U.S. (6 Pet.) at 515.

388. See id. at 560-61.

389. See COHEN, supra note 351, at 236.

390. See id. at 259.

391. See U.S. CONST. art. XI, § 1.

392. See id.

393. See Leonard, supra note 340, at 681.

394. See Gelles, supra note 6, at 402.


396. See id.

397. See id.

398. See Leonard, supra note 340, at 689.

399. See Government-to-Government Policy Agreement, July 8, 1996, New Mexico-Indian Nations (Nineteen Pueblos, Jicarilla and Mescalero Apache Tribes, and Navajo Nation).

400. Assembly Concurrent Resolution No. 185 (Aug. 31, 2000).

31 ELR 11198 | Environmental Law Reporter | copyright © 2001 | All rights reserved