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…”

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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).

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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).

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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.

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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.

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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).

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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.

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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.

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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).

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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).

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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.

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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.