tribal sovereignty and the clean water act
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TRIBAL SOVEREIGNTY AND THE CLEAN WATER ACT
Riley Pagett*
I. INTRODUCTION
Native American1 tribes are independently sovereign states within the United States of
America. As such, most tribes have the same (or similar) domestic rights and responsibilities that
apply to nations of the world or states in the United States and are governed accordingly. However,
this sovereignty is limited by the unique relationship between the tribes and the U.S. government.
Tribes are not quite independent of the federal government, and because of that, most Native
American tribes remain under the protection of the federal government in a type of trust-
responsibility status. This relationship allows the federal government to exert influence and power
over the tribes through regulation, including operating activities on tribal land and removing tribal
jurisdiction on certain offenses. Despite congressional control, tribes frequently exercise
jurisdiction with respect to those resources under existing federal statutes. Further, Congress has
added provisions to many environmental laws clarifying the rights of tribes to control their natural
resources and prevent pollution on their lands. These tribal rights are similar to the rights exercised
by states with relation to their natural resources. Often, these types of provisions are referred to as
“Treatment as State” provisions which allocate similar rights to tribal lands and nations as what
would exist within a state’s government.
* J.D. candidate, American University Washington College of Law, degree expected December
2016; B.S. in Agricultural Communications, Oklahoma State University, 2012. Special thanks to
my God, my loving wife Lauren Pagett, professor and environmental law expert Barry Breen,
and lots of family and friends. 1 For the purpose of this examination of law, and in most circles, the terms American Indian and
Native American are considered interchangeable and acceptable. Most modern style guides also
list both terms as acceptable options.
2
The 1972 Clean Water Act certainly affects the ways tribes use their lands, and in 1987,
Congress amended the Clean Water Act to allow tribes the opportunity to attain the same status as
states, for the purpose of implementing and enforcing the Act. Congress did this in part to
recognize the Native American culture as vital to the culture of America today and also in part
because of a legal issue which recognizes tribes as sole authority over their lands, water, and other
natural resources within their territory.
This examination of the Clean Water Act and specifically the Treatment as State provision
within that law will thoroughly consider (1) tribal sovereignty over land and other natural
resources; (2) specific provisions within the Clean Water Act which allow tribal sovereignty to
exist or reign; (3) the extent to which tribal governments can assume the same responsibilities as
state governments; (4) a comparison of key provisions in other state-delegable statutes such as the
Clean Air Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act; and (5)
suggested harmonization of treatment both within the Clean Water Act and across the major
environmental statutes.
II. TRIBAL SOVEREIGNTY OVER LAND AND OTHER NATURAL RESOURCES
Tribal nations are official entities that originated as independent, self-governing territories
complete with their own tribal governing or decision making bodies.2 Pre-colonial tribes, like the
newly claimed territories or governances, expected all persons entering their lands to abide by their
tribal laws, customs, and traditions on their lands and affecting the natural resources within their
2 43 U.S.C. § 1601 (1971). The term “tribal government” or “tribal nation” is defined as “any
Indian or Native American tribe, band, nation, or other organized group or community including
any Alaska Native village or regional or Village Corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act…”
3
nation’s boundaries.3 Several of those laws and customs applied to the waterways on tribal land
which had always played a vital role in most Native American cultures because of the basis in
agriculture and fishing activities.4 When Europeans began to settle in the United States, the settlers
treated the tribes as respected, sovereign nations.5 However, years later, the framers of the
Constitution placed Native Americans under the purview of the federal government rather than
treating them as their own government. By placing communities and cultures with strong
relationships with natural resources under jurisdiction of the federal Constitution, the framers,
intentionally or not, established the relationship that has now evolved into the Indian Commerce
Clause and its case law6 which suddenly addressed the concern of tribal lands as a state or federal
responsibility.
Several cases established the federal government as the crucially responsible government
in relation to tribal lands and tribes across the states, including: Johnson v. M’Intosh7, Cherokee
Nation v. Georgia8, Winters v. United States9, and Arizona v. California.10
In Johnson, the Court held that the federal government was the only entity that could
outright acquire tribal lands. The same Court recognized the legal rights of Native Americans on
3 Melvin I. Urofsky & Paul Finkelm, A March of Liberty: a constitutional history of the United
States 16-18 (2002). “With tribal sovereignty comes the notion that all tribes should enjoy the
natural resources within their territory and likewise, all parties entering their territory should
abide by tribal laws.” See also David Hunter et al., International Environmental Law & Policy
379-81 (2d ed. 2002). 4 Id. 5 Id. 6 U.S. Const. art I, § 8. “The Congress shall have the Power . . . to regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes…” 7 21 U.S. 543 (1823). 8 30 U.S. 1 (1831). 9 207 U.S. 564 (1908). 10 531 U.S. 1 (2000).
4
their lands.11 Seven years later, the Cherokee Court overruled Johnson in part when it held that
although tribal governments were not sovereign governments of equal status as foreign nations,
tribes do have their own unique status as “domestic dependent nations.”12 The Court further ruled
that the federal government owed a special responsibility to tribes, including the general protection
and insurance of their tribal economic security, since those tribes were settled before the general
settlement of the New World.13 While the Court did not address whether water or other natural
resources are of the essence of tribal economic security, tribes have long attempted to maintain the
possession and control over the natural resources and the water on their lands because those
resources are vitally important to their community and culture, and in some cases, is even vital to
the tribe’s existence.14
It has long been said that the Cherokee Court failed to recognize the importance of the vital
role water indeed plays in the economic stability and security of tribes who especially depend on
agriculture or fishing or other types of farming which includes crops with high dependency on
irrigation. See, e.g., Idaho v. Coeur d’Alene Tribe of Idaho15, where a tribe attempted to establish
authority over waters on their land and used evidence suggesting their reliability on the water for
11 21 U.S. 543, 15 (1823). 12 30 U.S. 1, 9-11 (1831). Chief Justice John Marshall first articulated the federal trust
responsibility to Native Americans in Cherokee Nation. He specifically recognized the Cherokee
tribe as a body capable of managing its own affairs, explaining that the tribe had been uniformly
treated as a state since the settlement of the United States. 13 Id. at 12. 14 Charles Wilkinson & The American Indian Resource Institute, Indian Tribes as Sovereign
Governments 18 (2d ed. 2004). 15 521 U.S. 261 (1997). When the tribe tried again to assert jurisdiction in the Ninth Circuit, the
court upheld tribal ownership of the water in question and tribal jurisdiction over the wated
based on title to the land underlying portions of the lakebed. United States v. Idaho, 210 F.3d
1067 (9th Cir. 2000).
5
cultural, religious, and economic stability but the Court questioned the tribe’s actual need for such
waters.16
The Supreme Court furthered its case law in tribal water rights in Winters v. United States,
where settlers attempted to use reservation water for their own agricultural use.17 Tribes protested
the settlers’ attempt, and the Supreme Court found that when the reservation had been established,
it included an implied reservation of water rights to sources within or bordering the reservation.18
Winters establishes the right to the water, however does not make mention of the quantity of water
that should be reserved to the tribe.19
More recently in Arizona v. California, where a tribe demanded their authority over waters
on their land and also their ability to use their own water to irrigate their fields, the Court reasoned
that water on tribal land should naturally be reserved for tribal use according to the purpose of the
reservation.20 While the Court in Winters established that tribal water rights are a matter of federal,
not state law, the Arizona Court allowed for water to be utilized for expanding uses on reservations
or tribal lands, including religious, cultural, agricultural, and other customary uses.21
Today, a movement exists where the focus has turned towards protecting tribal sovereignty
and recognizing tribal rights in natural resources and preserving the environmental quality on
reservations and other tribal lands. In such a movement, a plethora of environmental laws grant
tribes specific tribal status that allows tribes to be viewed as equal to states or as domestic
dependent nations as Chief Justice Marshall initially suggested in Cherokee.22
16 Id. at 23. 17 207 U.S. 564 (1908). 18 Id. at 28. 19 Id. 20 531 U.S. 1, 18 (2000). 21 Id. at 21. 22 30 U.S. 1, 9-11 (1831).
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These laws, specifically the environmental laws, do not give tribes something that they did
not already have, rather it merely recognizes inherent tribal authority.23
“Tribes retain title to their water and submerged lands and sovereignty over
natural resources unless they have specifically ceded these lands and rights
to others. Even absent treaties and statutes, tribes have the right to possess
and occupy their ancestral homelands through an aboriginal title. This
property right is different from a fee simple right to land and is called
aboriginal title.”24
As Chief Justice Marshall alluded to, no formal statute or governmental action is required
for Native Americans to have right to their lands and natural resources.25 Rather, to establish
aboriginal title, a tribe must occupy lands identified as their ancestral home.26 An ancestral home
can be identified once the tribe shows that it actually, exclusively, and continuously used the
property or reservation for an extended period.27
Because the judicial preference moves in favor of tribes, and as tribes increasingly retain,
or in some cases regain, their tribal sovereignty over their natural resources, we realize that the
23 Jessica Owley, Tribal Sovereignty Over Water Quality, 20 J. Land Use & Envtl. L. 110 (2004).
Courts have already ruled that Native American tribes have an inherent right to the land which
they occupy and to the natural resources which exist there. Therefore, the environmental laws
mentioned in this research do not give tribes any sort of ownership right which does not already
exist. 24 Id. Chief Justice Marshall described tribes’ inherent right to the land which they occupied
before European settlers in Worcester v. Georgia, 31 U.S. 515 (1832). He states that tribes have
always been considered distinct and independent political communities and were the undisputed
possessors of the soil. 25 30 U.S. 1, 9-11 (1831). 26 Id. at 9. 27 Id.
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ability to control one’s own land and water and other property is or should be a fundamental right.28
For example, in Albuquerque v. Browner29 where the City of Albuquerque operated a waste
treatment facility and dumped the waste into a river only five miles away from the Isleta Pueblo
Indian Reservation, the Tenth Circuit acknowledged tribal sovereign interest in water and
identified four elements of tribal sovereignty which include: (1) government jurisdiction, (2) land,
(3) mineral rights, and (4) water rights.30
Today, nearly one-third of the world’s population lacks sufficient access to safe drinking
water and sanitation to meet their basic needs,31 thus the fourth element, tribal sovereignty over
water, has become increasingly important. Rather, more people are paying attention to it because
of the recent dire need of water especially in the western United States and other drought-stricken
areas. In Colville Confederated Tribes v. Walton,32 the court suggested that states cannot validly
regulate water or sources of water on a tribal reservation because states lack jurisdiction. The court
expanded upon their judgment by explaining that waterways and bodies of water are not only
important to tribes, but are critical to tribes and are “deeply rooted” and are an integral part of the
identity of many tribes even in today’s society.33
28 Interview with Derek Osborn, Native American affairs legislative assistant for U.S. Senator
James Lankford, in Wash., D.C. (Nov. 5, 2015). “Tribal sovereignty means tribes are able to
make decisions for themselves without intervention from the federal government or outside
bodies. That sovereignty extends to making decisions concerning the land and water and
environment within the boundaries of that tribe.” 29 97 F.3d 415 (10th Cir. 1996). 30 Id. at 43. The EPA recognized Isleta Pueblo as a state for purposes of water jurisdiction and
Albuquerque challenged the EPA’s recognition. The district court denied Albuquerque’s request
and granted the EPA’s motion for summary judgment. Albuquerque then appealed the decision
and the court ruled de novo, using the standards that were applicable in the district court. 31 Global Water Partnership, Water Statistics, Fact Sheet (2010), http://www.gwp.org/Press-
Room/Water-Statistics/. 32 752 F.2d 397 (9th Cir. 1985). 33 Id. at 52.
8
III. THE CLEAN WATER ACT
Because Native American nations are within United States borders and Congress has
plenary power over entities within its borders, including tribes, tribes must adhere to federal
environmental laws.34 In terms of water quality, this means that tribes must follow the programs
and requirements laid out by the Clean Water Act (CWA).35
Like most regulations or pieces of major policy, the CWA we know today has morphed
since its conception in 1948 as the Federal Water Pollution Control Act (FWPCA).36 The FWPCA
was designed to protect water quality, including the ambient water quality standards we know
today which focus on pollution prevention.37 Also like most laws, the FWPCA needed amending
with the change of power in both legislative bodies and with an increasing knowledge base about
the environment, water, and the safety of water for consumption and use.
In 1972, several amendments were drafted and tacked on to the initial 1948 legislation. The
1972 amendments, most of which focused on environmental safety and hazard control, are what
we know of as today’s CWA.38 Additionally, the amendments called for chemical, physical, and
biological integrity of waters in the United States and calls for an elimination, eventually, of
pollutant discharge into navigable waterways by 1985.39 Despite congressional concerns over
state-based regulation on the elimination of said pollutants, the CWA established a pollution
34 Owley at 61 (citing Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903)). “Plenary authority
over tribal relations of the Indians has been exercised by Congress from the beginning, and the
power has always been deemed a political one, not subject to be controlled by the judicial
department of the government.” 35 33 U.S.C. § 1251(b) (1972). 36 62 Stat. 1155 (1948). 37 Id. 38 33 U.S.C. § 1251(b) (1972). 39 Id.
9
control regime where the states act as the primary enforcers, established federal and state
responsibilities, and recognized the interest that states have in waters of their jurisdiction. 40
In recent years, as authorized by the CWA, states have set their own water quality standards
which must abide by the minimal requirements, but may be more stringent than those requirements
set forth within the CWA.41 The idea is that states are generally more aware than the federal
government of the local environmental and industrial conditions, so states may set their own
standards as recognized enforcers of the permit programs. However, the EPA, as implementers of
the CWA, set minimum standards for states, and the EPA maintains full authority over the permits,
polluters, and states at all times.42
With primary EPA control, some discontent among states arises when states attempt to
have primary jurisdiction over waterways and bodies of water within their borders. States often
strive for more state or local control over their natural resources – water, land, air, etc.43 As such,
the CWA encourages states to create their own programs that adhere to federal standards and that
are designed to meet national goals. If states do not set their own water quality standards or develop
a state-enforcement program, the EPA administers its own standards and program and serves as
the default enforcer.44 Additionally, EPA administers similar programs and standards for entities
which have either not yet structured their own water quality standards or regulations or who have
40 Id. 41 Id. 42 Owley at 74. Although EPA can revoke a state’s ability to administer a program within their
jurisdiction, it has never done so. However, the EPA does often require states to reevaluate or
change permits that the EPA does not deem appropriate, applicable, or adequate. 43Tord Kjellstrom, Air and Water Pollution: Burden and Strategies for Control, 29-33 (2000).
“An appropriate interaction for adapting national water quality standards or goals is to provide
local authorities with at least enough flexibility to design their standards which align to their
local economic and ecologic conditions.” 44 Id. at 32.
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not attained the status of the CWA which treats them as a similar entity as a state within American
boundaries. Often, tribal nations or tribal lands fall within this category.
IV. TREATMENT AS STATE STATUS
States or federally approved areas within the borders of the United States were identified
in the 1972 amendments as having strict powers related to the waters or resources on their lands.45
After pressure from tribal administration and governments, and after increased recognition of tribal
law by President Nixon and the establishment of EPA, Congress passed a new CWA amendment
in 1987 which also allowed for tribal sovereignty over water on tribal lands even if the tribes were
not already recognized as a state of the federal government.46 The amendment authorized the EPA
to treat tribes as states for the purposes of meeting the broad goals of CWA.47
The amendment in 1987 created section 518 of the CWA which recognized such tribal
authority and described two main strategies for tribes wishing to control or gain authority over the
water on their lands.48 The first, a cooperative agreement (§518(d)) allows for flexibility among
states and tribes and permits them to work together to self-negotiate agreements on authority and
implementation.49 These agreements are similar to interstate compacts, and the contracts can be
frequently negotiated between two sovereigns within the United States.50 The second, a treatment
as state (TAS) status (§518(e)) permits the EPA to treat tribes similarly to the way states are treated
45 Id. 46 Owley at 76. 47 Id. 48 33 U.S.C. § 518 (1972). 49 Id. 50 Owley at 77. These agreements are also subject to the approval of the EPA. However, these
agreements are designed in a way that gives a broad sweeping mechanism to the EPA and to
Congress so that Congress is not required to review every document within the agreement or
contract proposal.
11
in the CWA and similar regulations.51 The TAS option further allows for direct consultation
between EPA and Native American tribes to “promulgate final regulations which specify how
Native American tribes shall be treated as States.”52 Since the official implementation of the rule
considering the strategies for tribes in 1991, the EPA has issued requirements that must be met for
tribes to either obtain a cooperative agreements or TAS status.53
To obtain a TAS status, specifically, tribes must meet several standards or requirements
the EPA has set forth before tribes can be recognized or treated as a state would be treated under
similar regulation or legislation.54 First, a tribe must obtain legal recognition as a tribe with a
“functioning governmental body who has clear jurisdiction over the waters they seek to
regulate.”55 A tribe, as defined in the CWA, is an entity or organization with a reservation or “any
land within the limit of any Native American reservation under the jurisdiction of the United States
Government. . .”56 Basically, the EPA is ensuring that should a tribe receive TAS status, the tribe
will have the political or bureaucratic means to enforce the CWA or violators of the CWA on their
51 33 U.S.C. § 518(e) (1972). 52 Id. 53 Owley at 77. According to some critics of granting TAS status to tribes, some Native
American tribes find the granting of TAS status to their tribe to be insulting or demeaning as
those sovereign nations, which in theory should be considered an equal power with the federal
government, are being compared to a state, a subsidiary to the federal government.
Contrastingly, proponents of granting such a status to tribes say that tribes have grown
accustomed to this level of comparison and welcome this level of statutory security over their
right to govern their own natural resources, specifically water quality. See James M. Grijalva,
Tribal Governmental Regulation of Non-Indian Polluters of Reservation Waters, 71 N.D. L. Rev.
433, 440 (1995). 54 Stephen L. Pevar, The Rights of Indians and Tribes 8 (2002). 55 33 U.S.C. § 518(e) (1972). 56 33 U.S.C. § 518 (1972).
12
tribal lands. Second, a tribe must have inherent tribal jurisdiction over the water or water source
in question.57
If the tribe meets the requirements of TAS designation, and if the tribe has submitted an
appropriate application to EPA, EPA will allow for limited types of affected groups or persons to
comment on the TAS application.58 This is considered a condensed or modified version of the
typical notice and comment rulemaking process that the EPA demands.
When promulgating its regulations for the TAS process, the EPA looks to Montana v.
EPA59 and Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation60 where the
standard states that tribes must demonstrate that regulation over water quality relates to conduct
that threatens or directly effects the political integrity, economic security, or health of welfare of
the tribe or tribal lands.61 Once a tribe is able to make a relation between the waters on their land
and one of these criteria, the EPA rules that there has either been an adequate or inadequate
showing of inherent and/or sole authority.62
Upon a tribe’s approval of TAS status, the tribal governing body or jurisdictional
organization may begin regulating waters within their jurisdictional bodies, developing their own
permitting programs (again, according to minimal standards but allowed to be more stringent upon
EPA approval), and administering discharge or other pollutant programs.63 Should a tribe only
57 33 U.S.C. § 518(e) (1972). Water resources must be held by an Indian tribe, held by the United
States in trust for Indians, held by a member of an Indian tribe if such property interest is subject
to trust restriction on alienation, or otherwise within the borders of an Indian reservation. 58 Id. Only states contiguous to the tribal lands and relevant federal agencies that would likely be
affected by the new TAS status may file comments on the tribe’s TAS application. States may
also collect comments and submit them on behalf of the state as a whole. 59 941 F. Supp. 945, 947 (D.N.M. 1996). 60 492 U.S. 408 (1989). 61 Id. 62 Id. 63 Wilkinson, supra at 67.
13
regulate partial elements within the CWA, the EPA remains the default enforcer and programmer
on any of the tribe’s land.64
While a relatively burden-free option exists to tribes, very few actually choose to
administer their own water programs or set their own standards.65 As of 2010, only 24 out of the
already approved 145 tribes with TAS status have actually set their own water-quality standards
and no tribes administer permitting programs.66 The lack of application or follow-through amongst
tribes could be attributed to a number of issues. The approval of TAS status is only the first step.
After their approval of TAS status, tribes must apply for approval of water quality standards and
update EPA during every step of the way. Additionally, while the EPA is involved in nearly every
decision pertaining to the tribes and their regulatory process, the EPA has recently been relatively
slow in issuing TAS status to other tribes wishing to gain status or even in reviewing the
applications in the first place.67
“Some speculate that the EPA’s hesitance is due to a fear of the patchwork
nature of allotted lands. Because the EPA does not believe that there has been
a clear federal delegation of authority, the extent of tribal jurisdiction is not
immediately evident to it.”68
However, others would argue that EPA has made it relatively easy to attain TAS status and
the uniform application system and administration process for waters on tribal lands is
unquestionable because it treats all tribal governments the same during every stage of the process.69
64 Id. at 69. “Because Congress has plenary power over the tribal land, the federal government,
not the states, should remain the sole manager of waters and CWA programs on tribal land.” 65 Owley at 78. 66 Id. 67 Id. 68 Id. at 108. 69 Id. at 109.
14
The same parties might argue that the process for tribal approval is far easier on the tribe’s end
than it is on the EPA’s end. EPA, as the approver of TAS applications, must review all permit
procedures and rules promulgated or suggested in each tribal jurisdiction. The fear here is that
these differing rules might create a patchwork of rules or regulations. The benefit here, however,
is that EPA as the reviewer of said rules might assert their authority over rules and help prevent or
avoid such patchwork. Additionally, this process might allow for good relations between EPA and
tribes once the status has been granted.
States, on the other hand, might not see the TAS status as beneficial, and they often oppose
efforts to expand tribal sovereignty and jurisdiction in any form.70 Although the EPA sees it
differently, states are concerned that by granting tribes such a status, patchwork regulation will
occur and several different governing bodies over connecting or nearly connecting waters will
exist.71 States claim that if Native American tribes achieve the TAS status, several agencies or
governing bodies could potentially be set up to regulate the same body of water and the standards
of the mixture of agencies could differ as the water crosses state lands.72 For example, in some
areas of the country, the boundaries of Native American reservations are large and tribes could
coherently govern large acreages while in other areas, tribal property might be small and separate
governing bodies might not make sense.73 For the most part, however, in cases where several
governing bodies might have jurisdiction over the water at different points, tribes can enter into
the before mentioned cooperative agreements with states to allow state regulation and standard
setting but are still required to submit to an EPA approval process.74
70 Owley at 84. 71 Id at 85. 72 Id. 73 Id at 87. 74 Wilkinson, supra at 68.
15
Additionally, states argue that there may be a sort of a spillover effect from pollution on
tribal lands if the tribal standards are more lenient than the state’s regulation.75 However, according
to the statute, federal minimum standards would apply in a case like this, and states would not be
subjected to any standard of clean water that is less than what is already required by law.76
Treating a tribe as a state and giving tribes the same jurisdiction over their land and natural
resources that a state might have over their own natural resources, allows for tribal nations to retain
a sort of ownership over their property. As such, treating a tribe as a state also allows for tribes to
remain management over their natural resources. The TAS option, although not without
reservations from some states, is perhaps today’s most efficient option for the EPA when allowing
for regulation of water specifically. However, the TAS status may also be the most realistic and
effective option for environmental laws which regulate all natural resources on tribal lands.
V. OTHER STATE DELEGABLE STATUTES
In accordance with recent executive priorities in Indian country, Congress has worked to
expand environmental laws to acknowledge tribal sovereignty over natural resources. Since the
1991 CWA final rule, several cases have cited the extent of tribal jurisdiction under the CWA.
More so, and occurring more often as more attention is paid to tribal jurisdiction over natural
resources, even non-CWA cases have attempted to explain tribal sovereignty over natural
resources on tribal lands. In most cases, the courts have deferred to the EPA for their interpretation
75 Id. 76 33 U.S.C. § 1251(b) (1972).
16
of CWA and other laws regarding tribal jurisdiction over water on tribal lands. See generally,
Washington Dept. of Ecology v. EPA,77 Nance v. EPA,78 and Arizona Pub. Service Co. v. EPA.79
In 1984, the EPA became the first federal agency to adopt its own Native American
policy80, and several environmentally related policies included “treatment as state” notions which
indicated that Congress was recognizing inherent tribal authority in major legislation, specifically
the Clean Air Act81, the Safe Drinking Water Act.82, and the Resource Conservation and Recovery
Act.83
The Clean Air Act (CAA) is considered a comprehensive air quality law designed to
regulate air pollution in the United States and is also administered by the EPA. Similar to the
77 752 F.2d 1465 (9th Cir. 1985). The Washington court held that a tribe’s sovereignty does not
disappear when the federal government takes responsibility for management of a federal program
on tribal or Indian lands. The court further explained that states are “precluded from exercising
jurisdiction over Indians in Indian country unless Congress has clearly expressed an intention to
permit it.” 78 645 F.2d 701 (9th Cir. 1981). The Nance court upheld the EPA’s approval of the Northern
Cheyenne Tribe’s re-designation of its reservation for the purpose of prevention of significant
environment deterioration under the CAA. The Nance decision came ten years before the
addition of TAS status to the CAA and other, similar laws or regulations. 79 211 F.3d 1280 (D.C. Cir. 2000). The Arizona court held that the EPA regulations
implementing the CAA amendments properly delegated to Native American nations or tribes
authority to regulate air quality on all land within reservations. The court upheld the definition of
tribes and tribal land. 80 Jana B. Milford, Tribal Authority under the Clean Air Act: How Is It Working? (2009),
http://lawschool.unm.edu/nrj/volumes/44/1/07_milford_tribal.pdf. “The EPA’s policy recognizes
tribal governments as sovereign entities with primary authority and responsibility for the
reservation populace. Accordingly, the policy recognizes tribal governments as having
independent authority to set standards and manage environmental programs on their reservations
and promises the tribes assistance in assuming the regulatory responsibilities. Until a tribe
assumes primacy, the EPA will retain responsibility for environmental regulations on its
reservation unless a state is expressly authorized by Congress to assume delegated authority. The
policy also pledges to assure that Tribal concerns and interests are considered in agency
decisions in keeping with the federal trust responsibility.” 81 42 U.S.C. § 7401 et seq. (1963). 82 42 U.S.C. § 300 (1973). 83 42 U.S.C. § 6901 et seq. (1976).
17
CWA, tribes also face challenges under CAA regulation related to regulating pollution sources
within their jurisdiction and addressing transboundary air pollution from upwind jurisdictions.84
Also similar to CWA, federally recognized tribes may apply for TAS status and be approved by
EPA as eligible for “treatment in the same manner as a State” and develop and get approval from
EPA of its CAA program and implementation.85 The drive for tribes to attain TAS status in CAA
is consistent with the motivation to attain TAS status in CWA – protection of cultural resources
and enhanced jurisdiction or ownership over natural resources on tribal or reservation land.86
Consistent with tribal policy and similar provisions in the CAA and CWA, the Resource
Conservation and Recovery Act (RCRA) also authorizes the EPA to address tribes with flexibility
for purposes of administering the management of non-hazardous solid waste, such as household
garbage and non-hazardous industrial waste.87 However, unlike CAA and CWA, RCRA does not
recognize tribes as states or treat them as such. In fact, a TAS status is not even offered in the text
of RCRA. Instead, the EPA’s role with respect to tribal solid waste management plans is limited
to establishing guidelines for the development and implementation of tribal plans and providing
technical assistance.88 This assistance is different from assistance to states in that the EPA does
not approve tribal plans that comply with RCRA requirements nor does it ensure tribal programs
are in compliance with federal law.89 Tribes are defined in the RCRA as municipalities rather than
84 Milford at 213. 85 Environmental Protection Agency, Eligibility for Administering Clean Air Act Programs,
Laws and Regulations (2015), http://www3.epa.gov/air/tribal/tas_elig.html. 86 Milford at 213. 87 Environmental Protection Agency, Developing, Implementing & Enforcing Solid Waste Codes,
Laws & Regulations (2015),
http://www.anthc.org/cs/dehe/sustops/rasc/upload/Appendix%208.pdf. 88 Id. 89 Id.
18
as states which has forced courts to rule that EPA cannot and should not approve solid waste
programs for tribes.
Additionally, courts have ruled that tribes should be responsible for implementing and
enforcing the minimal requirements of RCRA on tribal lands, but cannot assert its own sovereignty
to develop a solid waste program.90 See generally, Backcountry against Dumps v. EPA91 where
the court examined whether RCRA authorizes the EPA to approve solid-waste permitting plans
submitted by tribes. The court holds that states are indeed required to submit solid-waste permitting
plans to the EPA for review, but that Native American tribes, for the purpose of this law, are
defined as municipalities, not states.92 Under RCRA, tribes may, however, acquire Site Specific
Flexibility for landfill siting through a petition process to the EPA which allow for promulgating
site-specific rules to satisfy the notice and opportunity for comment requirements.93
The Safe Drinking Water Act (SDWA) also contains tribal provisions.94 The SDWA is the
primary federal law that ensures the quality of drinking water in the United States. The EPA sets
standards, similar to the standards set in CWA, CAA, and RCRA to oversee states and localities
and other implementers of the SDWA standards.95 EPA directly implements the SDWA in Indian
country and allows tribes to receive primary enforcement authority for the drinking water program
90 Id. 91 100 F.3d 147 (1996). Certain tribes, according to federal recognition, may seek EPA approval
for site-specific landfill regulation to satisfy RCRA and the tribe’s desire for flexibility in
designing and monitoring a landfill on a reservation. 92 Id. The court explains that because Native American tribes are explicitly defined as
municipalities in RCRA, and because the language only permits states to submit solid-waste
management plans, the EPA’s position that it may approve or deny permits submitted by Native
American tribes is inconsistent with the statute’s plain language. 93 40 CFR § 258.62 (2001). 94 Environmental Protection Agency, Clean Water in Indian Country: SDWA Implementation in
Indian Country, Tribal Relations (2015), http://www2.epa.gov/tribal/clean-water-indian-
country#safe. 95 Id.
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on their federally recognized lands.96 However, as mandated in the SDWA, public water systems
remain as the primary monitor for various contaminants.97 Further, SDWA does outline similar
criteria as in the CWA which allows for tribes to attain TAS status so long as the tribe is federally
recognized, obtains substantial governmental duties within their tribe, functions as a tribe, and is
reasonably expected, in the EPA administrator’s judgment, of carrying out the functions of the
SDWA.98
In the absence of any congressional action delegating authority over resources to any
particular party or entity, states control their natural resources. Since states innately have that
power, there is no real need for the federal government to delegate enforcement powers to states.
As explained by the Tenth Amendment,99 all power not explicitly granted to the federal
government remains with the states. If a TAS provision is created then, and if we view tribes as
similar entities as states with equal governing power, there is no need for federal power or
recognition, because an already existing power is merely being recognized. The TAS provision is
clear from its very title that it is about sovereign power and serves as a promotion for cooperative
relationships between tribes and the federal government much like the relationship that exists
between states and the federal government.100
96 Id. 97 Id. 98 42 U.S.C. § 300f (1974). 99 U.S. Const. amend. X. “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.” 100 Owley at 91.
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VI. SUGGESTED HARMONIZATION OF TREATMENT WITHIN CWA AND ACROSS
OTHER MAJOR ENVIRONMENTAL STATUTES
In most environmentally related legislation, the term “tribal coordination” refers to
harmonization of EPA’s tribal outreach and information dissemination to ensure that tribal
governments are aware of EPA actions that might impact them and afford them with the
opportunity to alert EPA or other agencies that they wish to be consulted according to the terms of
Executive Order 13175.101 According to the Executive Order, the United States shall recognize the
right of Native American tribes to self-government and the right of tribes to exercise as or do
business as domestic dependent nations and in a government-to-government type basis to address
issues concerning tribal lands, resources, and other rights.102 In coordination with tribal
governments, the Executive Order states that agencies should adhere to the following criteria when
formulating and implementing policies that have tribal implications:
“. . . (a) Agencies shall respect Indian tribal self-government and
sovereignty, honor tribal treaty and other rights, and strive to meet the
responsibilities that arise from the unique legal relationship between the
Federal Government and Indian tribal governments; (b) With respect to
Federal statutes and regulations administered by Indian tribal governments,
the Federal Government shall grant Indian tribal governments the maximum
101 Exec. Order No. 13,175, C.F.R. 62749 (2000). On April 29, 1994, President Bill Clinton
invited tribal leaders from all 547 recognized tribes to a tribal summit on issues facing tribal
communities, which was the first tribal affairs summit of this nature since President James
Monroe invited tribal leaders to the White House. In 1998, President Clinton issued Executive
Order 13084, which was annulled and replaced by Executive Order 13175. President George W.
Bush continued to support the Executive Order and issued the executive memorandum
“Government-to-Government Relationships with Tribal Governments” where he committed to
interact with tribal governments in consultation and coordination. 102 Id.
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administrative discretion possible; (c) When undertaking to formulate and
implement policies that have tribal implications, agencies shall: (1)
encourage Indian tribes to develop their own policies to achieve program
objectives; (2) where possible, defer to Indian tribes to establish standards;
and (3) in determining whether to establish Federal standards, consult with
tribal officials as to the need for Federal standards and any alternatives that
would limit the scope of Federal standards or otherwise preserve the
prerogatives and authority of Indian tribes.”103
Conceptually, Executive Order 13175 has received little criticism as tribal sovereignty and
tribal self-government has been recognized as Native American policy since President Nixon.104
However, in 2009, President Barak Obama also dedicated his administration to the principles of
the order and published the executive memorandum “Memorandum on Tribal Consultation” where
he declared that each federal agency or department must submit a plan within 90 days detailing
their cooperation with the order.105 Since then, some primary criticism has derived from the lack
of accountability and compliance with the order.106
103 Id at 67250. 104 Derek Haskew, Federal Consultation with Indian Tribes: The Foundation of Enlightened
Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21, 29-33 (2000). 105 The White House, Presidential Memorandum on Tribal Consultation (2009),
https://www.whitehouse.gov/the-press-office/memorandum-tribal-consultation-signed-president. 106 Colette Routel, Toward Genuine Tribal Consultation in the 21st Century, 46 U. Mich. J.L.
Reform 417, 419 (2013). Executive Order 13175 has been criticized mostly for not providing
sufficient guidance to agencies and departments in developing their consultation plans and for
not holding agencies accountable for their submitted plans.
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“Though most agencies explicitly recognize the duty of protection
stemming from the trust responsibility, many call for merely procedural
steps to safeguard tribal interest by required, for example, consultation with
tribal governments. . . . Such directives fail to reflect the full trust
responsibility, the essence of which incorporates a substantive obligation on
the party of every agency to fully protect Indian property interests.
Interpreting the trust obligation as merely a procedural mandate makes it
nearly inevitable that the implementation of programs will benefit the
majority society at the expense of the tribes.”107
A more effective compliance with the order also calls for a more uniform set of
measurement tools for agencies during their work with tribes or tribal leaders. For the EPA
and other agencies to fully comply with the Executive Order, standards must exist where
tribes are treated equal across all environmental statutes in their jurisdiction which affect
or directly mention tribes or Native Americans or the natural resources within tribal
control. A complete harmonization of environmental laws and the tribal statuses or
provisions which exist within those statutes would create greater accountability amongst
agencies, greater navigability amongst states attempting to manage their own resources on
their own land, and greater trust between the tribes and the federal government.
An inclusion of a TAS status within each major environmental statute, and each
statute from here forward, would eliminate any confusion as to how tribes and their lands
are to be regulated. A clear TAS status like the status in the Clean Water Act would treat
states as sovereign nations and would allow them to apply to be the regulators of the
107 Haskew, supra at 25.
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resources on their lands, like water, air, solid waste, and even minerals. Additionally, the
status would provide tribes with a clear understanding of expectations and would allow for
them to have greater sovereignty over their unique nations without interfering with already
existing state or federal government bodies. Harmonization on any level and in the case of
any environmental statute which allows tribes to or prevents tribes from controlling and
managing their natural resources is necessary and long overdue.
VII. CONCLUSION
Tribal governments are sovereign nations and should be recognized as such within all
environmental law. Tribal governments are the appropriate entities to regulate water quality on
reservations and on their lands. They have inherent sovereignty over their natural resources and as
the most local unit of government, they are most familiar with tribal needs and challenges.
As independent nations with their own land and governing bodies, tribes should not be
required to invoke federal laws which require them to assert their own right to the natural resources
which exist on their land. More so, Native Americans in any tribe across the United States need
not be required to concern themselves with whether they will again be stripped of sovereignty over
the lands which they reside. Equally so, residents of other tribes or other states with differing
governances should be trusted to do the same when the statute affects resources on their land.
Further, when a Native American of one tribe visits a Native American of another tribe on their
own land and under a new set of government or rules, both persons are required to abide by the
laws set forth for that area just as citizens must obey the laws of whichever state they may vacation
or visit.
This examination of environmental law and its everlasting effect on Native American tribes
and tribal land offers explanations of existing laws and offers recommendations and suggestions
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which might enable individual tribes to operate as sovereign nations or as states while still subject
to federal law. The recommendations might offer a smoother, more universal system for tribes to
navigate the laws and the natural resources which exist on their lands in a timely, more efficient
and effective manner. As water plays a vital role in the cultural, agricultural, religious, economic,
and nearly every area of a tribe’s livelihood, the tribe which depends most on that water should
have the most authority over the water which exists on their lands.
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