5.4 Regulatory Jurisdiction and Environmental Control

Regulatory jurisdiction in Indian Country is a complex web of tribal, federal, and state authority. Environmental control adds another layer, with tribes asserting sovereignty to protect their lands. This patchwork creates challenges in enforcing regulations and addressing environmental justice issues.

Federal-tribal partnerships and cooperative federalism aim to bridge jurisdictional gaps. Programs like Treatment as a State empower tribes to set their own standards. Meanwhile, the Montana test helps determine tribal authority over non-members on reservation lands for environmental matters.

Tribal Sovereignty and Environmental Self-Determination

Tribal Sovereignty and Environmental Regulation

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• Tribal sovereignty refers to the inherent authority of Indigenous tribes to govern themselves
• Sovereignty is the foundation for tribes to exercise environmental self-determination, the right to make decisions about environmental issues affecting their lands and communities
• Tribal sovereignty enables tribes to establish their own environmental regulatory authority through the development of environmental laws, regulations, and standards
• Tribes can create environmental protection agencies and programs to address issues such as air and water quality, waste management, and natural resource conservation

Jurisdictional Complexities in Indian Country

• Jurisdictional complexities arise from the unique legal status of Indian Country, which includes reservations, allotments, and dependent Indian communities
• Jurisdiction in Indian Country is divided among federal, state, and tribal governments, creating a patchwork of overlapping and sometimes conflicting authorities
• The extent of tribal jurisdiction over environmental matters depends on factors such as the type of land (trust or fee), the identity of the parties involved (members or non-members), and the nature of the activity
• Navigating jurisdictional complexities requires close coordination and cooperation among federal, state, and tribal agencies to ensure effective environmental protection and enforcement

Environmental Justice in Indian Country

• Environmental justice in Indian Country focuses on the disproportionate environmental burdens and health impacts faced by many Indigenous communities
• Tribal lands have been historically targeted for resource extraction, waste disposal, and other environmentally harmful activities, often without adequate consultation or compensation
• Indigenous communities frequently lack access to clean water, air, and other basic environmental services, leading to higher rates of health problems such as respiratory illnesses and cancer
• Addressing environmental justice in Indian Country requires meaningful tribal involvement in decision-making, equitable distribution of environmental benefits and burdens, and respect for tribal sovereignty and traditional ecological knowledge

Federal-Tribal Partnerships and Cooperative Federalism

Federal-Tribal Partnerships in Environmental Protection

• Federal-Tribal partnerships are essential for effective environmental protection in Indian Country, given the shared responsibility and overlapping jurisdiction between federal and tribal governments
• Federal agencies, such as the Environmental Protection Agency (EPA), have a trust responsibility to protect the environment and public health in Indian Country
• Federal-Tribal partnerships involve collaboration on environmental issues through consultation, technical assistance, funding, and capacity building
• Successful partnerships respect tribal sovereignty, incorporate tribal priorities and traditional knowledge, and provide tribes with the resources and support needed to develop and implement environmental programs

Cooperative Federalism and Treatment as a State (TAS)

• Cooperative federalism is a system of shared responsibility and decision-making between the federal government and states or tribes in implementing environmental laws
• EPA's Treatment as a State (TAS) program, established under several environmental statutes (Clean Water Act, Clean Air Act, Safe Drinking Water Act), allows eligible tribes to assume primary regulatory authority over environmental programs on their lands
• To obtain TAS status, tribes must meet certain criteria, such as demonstrating the capability to carry out the program and having jurisdiction over the regulated activities
• TAS enables tribes to develop and enforce environmental standards that are tailored to their specific needs and priorities, promoting self-determination and environmental protection

Jurisdiction over Non-Members on Tribal Lands

Montana v. United States Test

• The Montana v. United States (1981) case established a test for determining the extent of tribal civil regulatory jurisdiction over non-members on non-Indian fee lands within reservations
• Under the Montana test, tribes generally lack civil regulatory authority over non-member activities on non-Indian fee lands, unless one of two exceptions applies:
  1. The non-member has entered into a consensual relationship with the tribe or its members through commercial dealings, contracts, leases, or other arrangements
  2. The non-member's conduct threatens or has a direct effect on the tribe's political integrity, economic security, or health and welfare
• The Montana test has been applied in various environmental contexts, such as water quality regulation and hunting and fishing, to determine the scope of tribal jurisdiction over non-members

Non-Member Activities on Tribal Lands

• Non-member activities on tribal lands, such as resource extraction, waste disposal, or recreational use, can have significant environmental impacts and raise jurisdictional questions
• Tribes may assert regulatory authority over non-member activities on trust lands (lands held in trust by the federal government for the benefit of the tribe or individual Indians) as an exercise of their inherent sovereignty
• On non-Indian fee lands within reservations, tribal regulatory authority over non-members is more limited and subject to the Montana test
• Tribes can still influence non-member activities on fee lands through cooperative agreements, land use planning, and environmental review processes, as well as by working with federal and state agencies to ensure adequate protection of tribal interests