Virtual Guest Speakers 

March 22:

Professor James Grijalva
Topic: Environmental Justice in Indian Country
 
Biography
Virtual Lecture  (Real Audio format)
Transcript of Lecture
Other links
Discussion List   (James Grijalva will participate from March 22 - March 26).

Short Biography of James Grijalva

Biography: James M. Grijalva is a Visiting Professor of Law at the Seattle University School of Law, on the summer faculty of the Vermont Law School, and an Associate Professor of Law at the University of North Dakota School of Law.  Professor Grijalva writes, speaks, and teaches on subjects related to the environmental management and protection of Indian country, and the development of tribal natural resources.  Professor Grijalva also directs the Tribal Environmental Law Project, whose mission is to assist American Indian tribal governments in developing comprehensive environmental programs for protecting the health and welfare of tribal citizens and the quality of the reservation environment.

Professor Grijalva earned his J.D. cum laude, with a Certificate in Environmental and Natural Resources Law, from the Northwestern School of Law of Lewis & Clark College.  He is also Vice-Chair of the Native American Resources Committee of the ABA's Section on Natural Resources, Energy, and Environmental Law.


Virtual lecture

Environmental Justice in Indian Country

This lecture is recorded in RealAudio format.  To download the free RealAudio Player, click here.


Transcript of lecture

It's fun to be back on campus.  It's been a while.  It's been a long time, seems like.  It was a number of years ago I made the decision to come here, mostly because of the environmental program, and also, I needed to get out of California.  But, I am pleased to sort of watch from a distance the school's progress and see that Dean Huffman and the law faculty continue to distinguish Lewis and Clark as an environmental law school and a leader in the country.  I say that because I was teaching at Vermont law school last summer, and I get a little, you know, friendly competition from the guys in the East in terms of that.  But, I always remember fondly the opportunities here to listen to a lot of different speakers with expertise in various areas.  And I know that, as a student thinking about time between studying for Bar courses and doing personal life things, that sometimes it's not easy to come to all of these events.  I will tell you that you'll find, shortly after you leave here and go out into the real world, whatever you do, you'll have even less time to attend these kinds of events.  And so, I encourage you, and I was happy to see even over the lunch hour, that some of you have taken the time to come here today.  As Janice said, if you feel the need, if you want to jump in, I'd be happy to answer questions at any time.  I don't tend to give big speeches on microphones very often.  Instead, I jump around in front of the classroom, and we go as the class will go.  If you want to wait until the end, that will be fine too, and I would be happy to stick around afterwards for those of you who want to ask more specific or direct questions.

The topic I've chosen is "Environmental Justice in Indian Country", and, like most speeches titled, or law review articles, it's somewhat misleading.  And maybe only misleading because those of you that are familiar with the concept of environmental justice may be expecting me to talk about the siting of hazardous waste facilities or landfills in Indian country, or the reality that EPA may not prosecute violators of various environmental statutes as frequently as they might in those areas.  And, to some extent, I'll make reference to that, but the environmental justice issue is a little more basic in Indian country, and I'll get to that in a moment.

I want to make mention, I don't know, I assume that some of you in the audience understand or know that this speech is part of a virtual speaker's presentation hosted by the Mercer Law School.  Steve Johnson at the Mercer Law School conceived the notion of having participating schools host speakers, putting their speeches on the Internet and allowing students across the country to access them via the Internet, and also have a discussion list where you could, essentially, ask questions to me over the Internet, or pose questions or discussion topics to the rest of the group.  And, if you haven't looked at that Internet site there, you might want to do that.  This speech, I think, will be posted at the end of the week, and there'll be a discussion group on it, including myself, next week (the eighth through the twelfth of March).

If some of you are participating in that, you may have seen Dr. Robert Bullard speak about environmental justice and the concept of sustain-ability, or sustainable communities.  And, Dr. Bullard had defined, in his speech, environmental justice as "the fair treatment and the meaningful involvement of all people, regardless of race, color, national origin, or income, with the respect to the development, implementation, and enforcement of environmental law."  Dr. Bullard, in his speech, explained that his view of the treatment was that no group would bear a disproportionate share of the negative environmental consequences that result from various economic development and commercial activity, or in the execution of federal, state, or tribal environmental programs.  Now, environmental justice, or at least the concept of disproportionate burdens on some communities, has been around for a long time.  I think the issue gained national prominence most specifically in 1992 when the National Law Journal hosted a special insert devoted to the question about whether minority and low income groups in this country faced a disproportionate burden of environmental harms.  One of the articles in that special insert concerned the Puyallup tribe of Indians.  The Puyallup tribe has moved since the time immemorial in and around Commencement Bay in the southern Puget Sound in Washington State.  And, like many tribes in the United States, the Puyallup's once sprawling aboriginal territory has been successively reduced, by a series of treaties, federal statutes and administrative actions, to a small fraction of what it was aboriginally.  The tribe's reservation now sits within the urban area of the city of Tacoma... and right next to the port of Tacoma, the west coast's busiest and most complex commercial port.  About 100 years of urban sprawl and port development, filling of wetlands and estuaries, unregulated discharges of water pollution and somewhat random land use development have all but killed the salmon and steel heads runs for the Puyallup River, and in the Commencement Bay, the Puyallups had relied from time immemorial.

Now the Law Journal article was focusing specifically on the status of Commencement Bay, at that time, as a superfund site.  A cleanup of hazardous waste under the federal superfund law.  The article noted EPA, state of Washington, the Puyallup tribe and the Muckleshoot tribes, had been working on the site for about 18 years then, and now about 26 years, and another 10 or 15 more, I assume.  The article quoted my client, Bill Sullivan, the Environmental Director of the tribe, as saying that in the cleanup process, that the tribe acted as EPA's conscience.  Now, I asked Bill what he meant by that after I saw the quote, and he told me, and I have seen this happen more than a few times that, in his view, the problem with the cleanup process from the tribe's perspective was that for EPA and the state agencies, the cleanup process was a job to be done.  And, like other jobs, at the end of the day you got in the car and you fought the traffic and went home.  The tribe, though, was home, and it lived in the middle of this superfund site.  And, so it didn't view negotiations with potentially responsible parties as simply another negotiation to be won or lost or compromised.  Now, I worked with the Puyallups for a number of years before I went to the University of North Dakota and worked with some other tribes in the west, and now represent a few tribes in North Dakota and South Dakota, and that comment stuck with me, acting as EPA's conscience, or acting as the conscience of the regulatory agencies that intended to implement these environmental programs.

The problem with the concept is that I don't think it goes far enough.  And, what I mean by that is, I think, like the small voice that whispered in EPA's ear, we need to cleanup this site to a point where the fish return, at least in a healthy status, so that the tribal members who have relied on these fish resources for thousands of years can continue to use them.  The problem with that voice in EPA's ear was, like the voice in all of our ears as we speed down the freeway, or procrastinate our papers, or don't balance our checkbooks, we often ignore the voice.  There is a different approach, and one that is available now under most of the major federal regulatory statutes.  And, that is one that carries the force of the law, and real potential to offer remedies to tribes in Indian country who face governmental inaction, both at the state and the federal level.  The approach is basically the development by the tribe, of it's own environmental programs, consistent with the federal requirements of the major federal regulatory laws.  Now, tribes can develop these kinds of programs because, unlike other communities of color in this country, tribes have a special and unique historical relationship with the federal government.  I'll talk a little bit more about that in a minute, but the major consequences of that special relationship, are that tribes continue to possess some aspects of their inherent governmental sovereignty, which they did before the contact with the European nations.  Secondly, that the federal government has comprehensive authority in the area of Indian affairs, and thirdly that the relationship between federal government and the tribes effectively displaces state regulatory power or state inherent police power in some contacts.

Now, these basic principles make a couple of things clear.  One is that federal environmental law does apply to all areas of the country, including Indian country, and in my attempt at diagraming the nation over here for the people in the room, as opposed to the virtual spectators, is a notion that federal law was intended by Congress (the Clean Water Act, the Clean Air Act, Safe Drinking Water Act, etc.) were intended to apply everywhere within the United States.  And, including the state, which is the first small box on my diagram, to the left.  The problem is, that because of that federal and tribal relationship, in some instances state power is ineffective or incompetent with respect to this territory I'm calling Indian country.  And that leaves, at least arguably, a regulatory void.  The key environmental justice question in Indian country right now, then, in my view, is not really whether environmental programs are being implemented effectively or fairly, but whether they be implemented at all.  The question really is, which government (as between the state or tribal government) has the right and the sovereign power to make value judgments about what is the appropriate balance between business transactions and economic development on the one hand, and environmental protection or conservation on the other?  The answer to the question requires a synthesis of administrative law, federal Indian law and environmental law.  And I'm going to attempt, in the next 40-some minutes, to see if I can't give you a thumbnail sketch of all three of those areas as they pertain to this subject.

Now, the inherent governmental power of the tribes.  Where does it come from, what is it?  We've heard about it, the mainstream press talks about it on a regular basis.  Although, they don't necessarily talk about it in any depth that would allow us to make our own conclusion.

Precontact: before the European colonizing nation showed up on the east coast, the North American continent was occupied by approximately 500 indigenous communities.  These communities had existed, in many cases, for thousands of years, regulating themselves according to their own standards and traditions.  In 1832, Chief Justice John Marshall, in a case called Worcester v. Georgia, said that before contact "America was inhabited by a distinct people.  Divided into separate nations, independent of each other and of the rest of the world, and having institutions of their own and governing themselves by their own laws."  So, in a sense, at least from the perspective of Chief Justice Marshall, tribes were, for all intents, nation states, in the international parlance of the time.  In 1831, in a case called Cherokee Nation v. Georgia, addressing specifically the authority of the state of Georgia in the Cherokee territory, Chief Justice Marshall said that the Cherokee nation had proven in argument its character "as a state, as a distinct political society, separated from others, capable of managing its own affairs, and governing itself."  Now, the tribes, although they were nation states in that context, didn't participate in the constitutional convention, and so they were not accorded co-sovereign status with the states in that convention in terms of the structure between the federal government and the states.  The constitution's sole substantive reference to Indian tribes comes in Article 1, section 8, clause 3, in which the states delegated to Congress the authority to "regulate commerce with the foreign nations and among the several states and with the Indian tribes."  This is the commerce clause, and in federal Indian law, it was the Indian commerce clause.  In the Worcester case, Chief Justice Marshall addressed the power of the state to regulate activities that occurred within Cherokee territory, or within Indian country in this context.  Worcester was a Christian missionary, a white guy who was in Indian country, trying to convert Cherokees to Christianity.  He was there with the permission of the federal government, and he was there with the permission of the Cherokee nation.  He was not there with the permission of the state of Georgia, though, who purported to have a law which would regulate activities of non-Indians inside Indian country.  After Georgia prosecuted Worcester and put him in jail for four years, Worcester applied for a writ habeas corpus to the Supreme Court, and Chief Justice Marshall granted the writ, ultimately declaring the state conviction invalid.  And in doing so, he said an American Indian tribe is a distinct community, occupying its own territory, with boundaries accurately described, in which state laws can have no force.  Now this was 1832, and sometime later we find that the statement has been undermined somewhat.  But at that moment, the relationship between the federal government and the Cherokee nation, in terms of two sovereigns discussing matters of war or peace, commerce, etc., and agreeing by virtue of international agreements we call treaties, to certain terms and responsibilities on either side, have, essentially, displaced the ability of the state of Georgia to regulate the affairs in Indian country, even though, with respect to the Cherokee nation, it found itself completely within the borders or the boundaries of the state of Georgia.  Now in 1832, the factual assumptions that Marshall made to come to his conclusion that state laws can have no force was, essentially, reflective of a policy of isolation.  The federal government, in an attempt to minimize hostility between the white settlers (European settlers) and the Indian nations, attempted to separate the two sides.  To regulate when the sides could discuss or engage in commerce, to regulate what land sales or commercial transactions would occur, and essentially, the idea was, in terms of the separation of the tribes from their aboriginal territory, and the successive reduction of their land mass, to provide enough room for settlers to live without coming into direct contact with the community over the Indian nation.

In 1887 those factual assumptions changed.  The federal government started to pursue a policy which is often referred to as the Allotment or the Assimilation Era.  And, the notion of the Allotment and Assimilation Era was that isolating Indians from non-Indians was not good for the country for two reasons: one, is it made less land available for non-Indians, and secondly, from the perspective of some of those in the east who sought to civilize the Indian, that it would be good, as a role model type of approach, to have non-Indians exposed to Indians and vice versa.  With the assumption or the idea of the melting pot of the United States, we would bring the indigenous communities into the mainstream, agrarian, market-based society that the Europeans had imported with them from their home countries.  Now the mechanism of Allotment and Assimilation Era was essentially to carve up what had previously been communally owned land.  A tribal land base, and if you will this box behind me, representing the land mass, at least initially, that the tribe possessed communally.  And each member of the tribe had a right to use that land in accordance with the customs and the traditions of the tribe at that time.  The federal government asserted its power under that Indian commerce clause, which the court now calls plenary, or total power, to break up the land mass of the tribes, once held communally, and to give each Indian male 160 roughly, sometimes 80, acres of property, which would be owned like fee simple, although, in fact, the United States would hold that title for the benefit of the Indian person.  What happens in a really quick thumbnail sketch of this period, is a creation of what is often referred to as a checkerboard process, or checkerboard pattern of land ownership.  Instead of within the Indian country one type of ownership, this tribal land, owned by the tribe, held communally, and this trust reference is a notion that the federal government asserts its power to control how that land is disposed.  Essentially, a reaction of a stronger military or political power of the United States government vis a vis the Indian nations.  Instead of complete tribal trust land, we got a patchwork.  And the patchwork represents individual Indian allotments, held by individuals and owned according to the customs of property law in the United States, but subject often to the trust responsibility of the federal government.  Non-Indian fee lands, because remember the point of the role model notion was to expose the Indians to the non-Indian arts and progress, and so within the box, within the boundaries of what I'll call reservation or Indian country, we would have non-Indians, individual allotments, and tribal trust land.

Now, from the perspective of the states, unlike in the Worcester case, where really the state had minimal interest inside Cherokee territory, since there were few, if not any, non-Indians, now with the presence of significant numbers of non-Indians owning lands, asking their states and their state representatives to provide them with governmental services, the reality was that the states began to clamor again for more authority inside Indian country.  On the back side of that is the argument by the non-Indians that we shouldn't be regulated by the tribal government.  And there were two reasons for that.  The Supreme Court had said, by this time, the Federal Constitution didn't apply to the Indian Nations.  In other words, the first Amendment, Free Speech, Free Press Rights, that we become accustomed to after first year Con Law, didn't apply when the tribal government acted as to non-Indians.  So, in a sense, if the tribal government was to deny, if you will, the free speech rights of a non-Indian within the reservation, that would not be a federal constitutional violation.  In addition, non-Indians, generally, at least in my knowledge, I'm not sure I know of a tribe that allows non-Indians to vote in tribal elections, or to hold tribal office.  And so non-Indians made sort of a due process argument "we're land owners within this territory, we can't vote for governmental office, we can't hold governmental office, and the constitution doesn't protect us from arbitrary exercises of tribal power."  So the concept or the conclusion by the non-Indian landowners was, "we think the state should regulate us and not the tribes."  Now, as time moves on and pulling together or concluding this one thumbnail sketch of Indian law and its history, the Supreme Court heard those claims.  It heard the claims of the states that we have interest inside country now that non-Indians live there, and it heard the claims by non-Indians of potential due process violations, and began to undermine the notions of Worcester v. Georgia, and the conclusion by Marshall that state laws could have no force in Indian country.

This modern era is typified by a case in 1981 out of the Supreme Court called Montana v. United States.  In Montana v. United States, the Supreme Court stated what it said was the general rule.  And the general rule was that tribal government cannot regulate the activities of non-Indian fee land owners within Indian country.  That is, those people within the tribe's territory, who are non-Indians owning land, simply can't be regulated by the tribe, as a general matter.  Now, there were two exceptions that the court said, in dicta, to that general rule.  And the first was, the tribe may retain its inherent power to regulate non-Indians where their activities are conducted pursuant to consensual agreements with the tribe or its members.  For example, a timber company who buys the rights to harvest tribal timber from the tribe, and is, therefore, in Indian country pursuant to this consensual agreement.  The tribe can regulate that individual or that company's activities.

The second exception, and the one that's more important, for it focuses on environmental law, is the so-called health and welfare exception.  And there, the court said that the tribe retained inherent sovereignty to regulate non-Indians when the activities threaten the political integrity, economic security, or health and welfare of the tribe.  Now that exception, Montana's health and welfare exception, was the focus of a recent Ninth Circuit decision, also confusingly called Montana v. United States EPA.  The state of Montana suing the Environmental Protection Agency for its treatment of the Indian tribes under the Clean Water Act program.  Now factually, the context concerned the Flathead Reservation in northwestern Montana.  On the Flathead Reservation, 20 distinct bands of related people make up the Salish and Kootenai tribes, which live on the Flathead Reservation. The aboriginal territory of these 20 bands and tribes comprise over twenty million acres, but in 1855 in the treaty of Hellgate, the tribe ceded to the United States all but 1.3 million acres of its aboriginal territory.  The 1.3 million acres became known as the Flathead Reservation, and the United States promised, in the treaty, that the reservation would be the permanent homeland for the Salish and Kootenai tribes, and no non-Indians would be permitted to enter as long as the wind blows, the grass grows, and the river flow.  Fifty years later, in 1905, the government broke that land ownership up into a pattern similar to the one I've drawn up on the board during the Allotment era.  The result of the allotment?  The current population of the Flathead Reservation is approximately 30 percent Indian and 70 percent non-Indian.  About 50 percent of the reservation lands are owned by the tribe or its members, and the balance, 42 percent, owned by non-Indians, including the state of Montana and several municipalities.

Now, the reservation sits at the lower end of Flathead Valley.  And my second artistic attempt for the day has been to represent this notion in the context of the state of Montana and the Flathead Reservation.  The primary physical characteristic of the reservation and the Flathead Valley is this lake.  A huge lake that is a significant tourist attraction, I think about 2.5 times bigger than Lake Tahoe.  As you can see by my diagram, the lake sits half on the reservation and half outside the reservation, and you can think right away, from a perspective of water pollution, that there may be a question about what happens when pollution enters the lake on the north side of the line, or on the south side of the line, potentially it has the ability to effect the other jurisdiction.  That is, pollution in the state water comes into the tribal water or vice versa.  Well, activities that are conducted on the reservation that contribute to water quality problems include the kinds of things you might think you'd find in Western Montana, including cattle feed lots, cattle dairies, mining operations, auto wrecking yards, trailer parks, R.V. campgrounds, residential sewage, septic systems, and publicly owned treatment works.  The way Flathead Lake drains via Flathead River, which is this line represented south of the lake, and there are five tributaries to the river.  The land around Flathead River is primarily owned by Indian members of the tribes.  The land around the tributaries that flow into the Flathead River is owned primarily by non-Indians.  And so, the possibility of non-Indian pollution, if you will, either coming from outside the reservation and working its way to exposed tribal members, or occurring inside the reservation, making its way to Flathead River and exposing tribal members is a very real possibility.

Now, in the late 1980s, the tribes tried to respond, or started to respond to these environmental threats by developing the legal and administrative infrastructure that it thought would be consistent with a notion of trying to protect its members' health and welfare from water pollution.  And not just non-Indian pollution, but all water pollution.  The tribe created the Salish and Kootenai Natural Resources Department, which was charged by tribal government with protecting the quality of the reservation waters.  The tribal government authorized the agency, The Salish and Kootenai Natural Resources Department, to take actions that would be consistent with the protection of health and welfare in the reservation.  And the tribe adopted an Administrative Procedure Act, something you might not think would be the first reaction, but, as you know, Administrative Procedure Law would say here is a consistent and deliberate way which we can develop policies and regulations.  And, if you'll remember, one of the primary arguments made by your non-Indians over here in this diagram, was the notion that their due process rights wouldn't be protected.  So, Salish and Kootenai decided that, in order to ensure not only tribal members, but also non-Indians, would have the opportunity to participate in the development of environmental programs, the tribe created a process, which, not unlike one you might see at the state or federal level, where new policies or new rules adopted by these agencies would be subject to some public comment, a notice and comment type rule-making.  Now, as the Natural Resources Department went about collecting its data on the existing quality of the reservation waters, the tribe determined that it needed to adopt, under tribal law, water quality standards to try to protect the lake and the Flathead River and its tributaries.  And the tribe developed those standards, promulgated them under tribal law, and then turned to the EPA for approval under the federal Clean Water Act.

Now, for those of you who haven't been in environmental law yet, or found the complexity of the Clean Water Act simplified in this way, let me take two minutes to tell you the Clean Water Act's concept as it applies here.  Now, you probably know the Clean Water Act is one of the major federal regulatory statutes that regulate activities that threaten the quality of the surface waters of the United States (the lakes, the wetlands, the rivers, etc.).  The centerpiece on the Clean Water Act is a prohibition on any discharge of pollutants into the water without a permit, and there are two things that permits generally contain. In other words, companies or facilities that want to discharge pollutants into the Navajo waters of the United States must meet one, certain technology-based standards that are set by EPA consistent with the technology available to reduce pollution by that kind of a facility, and secondly, any applicable water quality standard.  That is, the standard for the ambient water quality of the river or the lake to which the discharge would be made.  Water quality standards have two components.  One is the use that is intended to be made of the water.  Use of Flathead Lake, for example, might be recreation, for boating, waterskiing or fishing.  The use would then be protected by the second component, which is generally a chemical or biological standard that is intended to protect a certain level of quality to ensure that use can be made.  The water quality standards program under the Clean Water Act is premised like most of the federal laws on a notion of cooperative federalism.  And cooperative federalism generally describes the context of the relationship between the federal government and the state governments in the protection of these various issues.  Generally what cooperative federalism means is that EPA sets the minimum requirements that each state must follow across the country, and the states then implement those programs in a way that takes account of site-specific factors, local conditions and the politics of the state as it were.  The only problem with cooperative federalism in Indian country, and back to my first diagram over here, the hatch marks coming to the right representing the federal policy everywhere, going to the left representing the states implementation of that policy and the very small box in the middle being Indian country in which nothing occurs.  Nothing occurs because, at least in part, EPA's view, although it has the authority to implement these laws in Indian country, the EPA is used to the notion that states will implement these programs on a day to day basis.  And so, where the state lacks authority, there at least is a potential for a perceived regulatory void where there simply is no one setting the standards or issuing the permits that would contain or control the activities inside Indian country.

In 1987, Congress addressed that issue, pursuant partly to EPA's lobbying efforts, and tried to remedy the void by adding section 518 to the Clean Water Act.  Section 518 essentially tells EPA that it can treat tribes in the same way that it treats states.  So, in that cooperative federalism model where EPA would look to a state to implement a particular program in a particular way, EPA was now authorized under the Clean Water Act to look to the tribal governments in the same fashion.   Congress said, in section 518, that the tribe can apply for treatment as a state.  It shows four things:  one, it's got to be federally recognized.  Federal Indian law in this country essentially distinguishes between tribes that are recognized by the federal government as tribes, and tribes that are tribes, but not recognized by the federal government.

Secondly, the tribe has a governing body carrying out some substantial governmental functions.  In other words, this is a tribe with sufficient size and sufficient governmental infrastructure to actually be implementing things like police protection, fire protection, electrical utilities, education, housing, etc.

Third, the tribe must show it's capable of implementing the program.  In other words, it has the expertise of computers, the technicians, the kind of infrastructure that would be necessary to implement an effective program, else why would the EPA wish to delegate that to them.

And fourth, and finally, and most importantly, that the tribe has jurisdiction over the waters for which it seeks program development.  Now, the first question EPA wants to ask when the state or a tribe asks for delegational programs, is does the state or tribe have inherent authority under its own series of laws to implement this program in a way that's consistent with the federal environmental law.  The jurisdictional requirement was the issue in the Montana v. EPA case concerning the Flathead Reservation that was addressed by the Ninth Circuit in March of 1998.  The Salish and Kootenai tribes applied to EPA to develop water quality standards for all waters within the reservation.  And the impact of the development of standards that would then be approved by the EPA, was that any federal permit issued to a non-Indian for a discharge into any one of these water bodies would be subject to the stringent requirements set by the tribe under its water quality standards program.  Now, as the tribe applied, EPA, as its regulations require, asks Montana what they thought about the tribe's application.  And Montana, not surprisingly I suppose, argued that it, in fact, the state, and not the tribe, had the authority to regulate the non-Indians.  The state isn't going to challenge the authority of the tribe to regulate it's own members, or to regulate non-Indians who are present on tribal lands, for example, but the state did take issue with the question of these non-Indians acting on their own fee lands, or own the fee lands of other non-Indians.  EPA disagreed.  And, of course, from an Administrative Law perspective, when the agency disagrees with you, generally, you're doomed to fail, and that's ultimately what happens here.  But, for our purposes for the moment, EPA said no.  Under the Montana v. United States case that had the health and welfare exception, we EPA, think that water pollution generally presents serious environmental health risks, risks to the human health and risks to the environment, and therefore, we think the tribes possess inherent sovereignty sufficient to implement its program everywhere within the reservation, including those areas where non-Indians live and their activities pollute the water.  The State challenged in Montana District Court arguing that EPA used the wrong standard for determining the scope of the tribe's inherent sovereignty.  The district court upheld EPA and the Ninth Circuit affirmed the district court.

Now, two main issues that the Ninth Circuit talked about for our purposes here.  One was, first of all, the standard of review by which the court would look at this agency's decision that the tribe possessed sufficient authority to regulate non-Indians.  Now, if you've taken Administrative Law, or you've read a few environmental cases, you know that, generally, courts are very deferential to administrative determinations, factually, and also interpretations of law consistent with the statutes that Congress has asked the agency to implement.  So, the Ninth Circuit said it would defer to the agency, as to its factual findings, about how non-Indian pollution effected tribal interests.  The court said it would defer to the agency's legal determination as to the scope of the Clean Water Act and what Congress meant section 518 when it treated tribes as "states".  But the court said it won't defer to EPA on its interpretation of the Supreme Court's cases on Indian law.  In other words, the Supreme Court in the Montana v. United States case said this is the scope of inherent sovereignty by the tribes, and although EPA has the right to interpret that for its own purposes, the Ninth Circuit said we're not going to defer to that standard.  In other words, we'll use a de novo standard of review to determine whether the EPA has correctly equated the Supreme Court's jurisprudence with a decision in this case.

So, the second issue then, of course, is what does Montana v. United States mean when it says the tribes can regulate non-Indians whose activities threaten the health and welfare of the tribe.  Stop for a second and think about where the state gets its authority to act in the environmental context.  The state doesn't get its authority from the federal government, it doesn't get its authority from the EPA, in fact, the state has the inherent authority under its police powers to take these federal programs and to implement them.  In 1847, in a case called Thurlow v. Commonwealth of Massachusetts, the Supreme Court said, "but what are the police powers of a state?  They are nothing more or less than the powers inherent in every sovereignty to the extent of its dominions.  Thus, has this court, from the early days, affirmed the power to promote the general welfare inherent in government."  Now, that was in the context of state police power, and, if I recall correctly, in the context of state management of game birds, hunting birds.  And, what you would find, if we looked to the state cases, the police power cases the Supreme Court has addressed, you find that the Supreme Court would uniformly defer to state legislatures when they decide things like preservation of green space, or hunting or fishing, or wetlands filling or not filling, are aspects of the general welfare that the state would rightfully or correctly exercise its authority to regulate.  Now, the Supreme Court, surprisingly, hasn't afforded tribes the same deference.  In fact, when tribes make decisions that these kinds of things effect the health and welfare of the tribe, the court tends to look with some careful scrutiny at those claims.

For example, in the Montana v. United States case that created this health and welfare exception, the court held the Crow Tribe in Montana did not possess inherent authority to regulate non-Indian hunting and fishing on fee lands within the reservation.  Now, the court concluded that because one, the tribe had allowed, or, as the court said, accommodated itself, to seventy years of regulation by the state.  In other words the state of Montana had been regulating hunting and fishing by non-Indians within the Crow Reservation for seventy years, and therefore, the court felt well, this can't be all that significant to the tribe if they had allowed the state to do that.  In Brendale v. Confederated Tribes of Yakima Nation in 1989, the court, in sort of a fractured decision, addressed the Montana health and welfare test in the zoning context.  The question there was whether the tribe, the Yakima Nation, or the county of Yakima, had the authority to zone commercial and residential development that was occurring within the reservation.  One of the concurring opinions said that zoning was a critical element of governmental sovereignty as the process by which a community defines its essential character.  Yet, the court, at least the plurality of the court, decided that the Yakima Nation did not have inherent authority to zone the development activities of a non-Indian within its reservation because the tribal interests weren't sufficiently implicated.  The reason the tribal interests weren't implicated, the court said, was that the area at issue was primarily populated by non-Indians, consisted of three towns that the court claimed, or called non-Indian towns, where Yakima County primarily serviced those individuals.  In other words, the tribal government wasn't providing governmental services and the county was.  So, despite the fact that these activities occurred within Indian country, within this box, the court said the tribe didn't have inherent authority to zone.

Now the latest application by the Supreme Court of the Montana test came last year, or actually now 1997, two years ago in a case called Strate v. A-1 Contractors.  In Strate v. A-1 Contractors, the issue was whether a tribal court of the three affiliate tribes in North Dakota had jurisdiction to hear a court claim by an individual who was hit by a gravel truck on a highway within the reservation on top of tribal trust land, but maintained by the state of North Dakota.  The plaintiff in that case was a German immigrant who had moved to America some years ago and married a man from the three affiliated tribes, had lived on the reservation all of the time she'd been in the United States, had five adult children who were tribal members, and for all intents and purposes, was a member of the reservation community.  But, because she was a German immigrant and not a tribal member, the court considered her a non-Indian for the purposes of the analysis.  The court said where you have a tort claim that arises between a non-Indian plaintiff and a non-Indian defendant that occurs on trust land, but over which a state highway runs - in other words, the state is preparing the highway and maintaining the highway - that the tribal court lacked jurisdiction to hear the case.  In other words, the plaintiff should go to state court to have her claim heard.

Now, when talking about the Montana health and welfare exception, the court said, "undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members."  And that sounded like, "okay, that makes sense."  So, the health and welfare exception, this woman actually spent 22 days in the hospital as a result of the gravel truck running into her car.  That sounds like a health and welfare risk.  But, the court then went on to say that, if that was all that the Montana exception required, then the exception would severely shrink the rule.  Then the court said that Montana's statement that tribal inherent sovereignty applies to non-Indian activities, does not reach beyond what is necessary to protect tribal self government.  And simply concluded that hearing this tort case between two non-Indians wasn't necessary to tribal self government.

Now, in the Ninth Circuit, in the Salish and Kootenai case, the state of Montana argued that EPA, when it approved the tribe's standards, had wrongly equated Montana's health and welfare exception with a state police power, that broad inherent power I spoke of a moment ago that would apply to virtually every conceivable subject that the state chose to regulate.  The state urged that the court, the Ninth Circuit, should hold that the tribes possess authority to regulate non-Indians only when the application of state and federal laws to the non-Indian activities fail to protect the tribe's interest.  In other words, the state's position was, the tribe need not worry about non-Indian activities inside Indian country because the state can regulate them to protect the tribe's interest.  The Ninth Circuit rejected that argument, concluding that that argument effectively converts tribes from governmental entities to public interest organizations, like the Sierra Club, who might intervene in the process and complain that the state wasn't protecting its interests, or the interest that it perceived were important in this case, and instead, denied the power of the tribe to make its own independent value judgments about what the appropriate rules or standards would be in a particular environmental context.

One easy example of that is to look at the water quality standards set by the tribe and the water quality standards set by the state of Montana, for similar waters like the Flathead Lake.  One of the standards the tribe set was to protect the religious and cultural uses that tribal members make of the surface waters.  Now you might not be surprised to find that the state of Montana does not contain a similar code provision, saying that the cultural and religious uses of the state of Montana's residents would be protected.  And the argument, of course, would be it may be that the state's program, as applied to non-Indian fee lands, would protect the tribe's interest in a case, but if it does, it's more likely random and coincidental than the act of a deliberate policy by the state.  The Ninth Circuit said that the key to the Strate v. A-1 case out of the Supreme Court, was whether the non-Indian activities posed a threat to tribal self government.  To conclude that there was a tribal self-government risk here, the court said EPA had adopted an operating rule.  The EPA, of course, is reading the Supreme Court cases starting with Worcester that sounded very pro-tribal sovereignty, and ending - maybe not ending - but concluding with the Strate v. A-1 case, it sounds like tribal authority is not nearly as significant as it might have once been, and EPA adopted, as a matter of prudence, an operating rule that said if tribes are going to seek delegation of environmental programs, they must show a serious and substantial risk to human health and the environment.  In other words, the non-Indian activities posed a series of substantial risks, not just a risk, not just a threat.  The Ninth Circuit said that that operating rule essentially or effectively met the standard the Supreme Court set in Strate for risks to tribal self government.  And then the court went through the analysis that the EPA went through in determining its rules as to delegation to tribes under the Clean Water Act, and said number one, the Clean Water Act itself was a Congressional determination that water pollution presents serious and substantial risks to human health and the environment.  That is why Congress amended the Federal Water Pollution Control Act in 1972 and created a system like we have now that is now commonly referred to as the Clean Water Act.

Secondly, EPA noted that water pollution is highly migratory, and so water pollution thrown in or discharged into the northern end of Flathead Lake was likely to make its way to the southern end of Flathead Lake, inside Indian country.  Pollution discharged by non-Indians on the upper reaches of tributaries to the Flathead River was likely to make it to the Flathead River and therefore expose tribal members.

Thirdly, EPA said it's impossible, physically, for us to separate the impacts of Indian pollution and non-Indian pollution.  And the reality of an impairment to the Flathead River, in terms of the chemical, physical and biological nature of the water, it's going to be very difficult, except in rare circumstances, to determine who's responsible for that impairment.  In other words, to say the state would be responsible for some impairment, and the tribe would be responsible for other impairment.  And so, EPA took the position that water is, essentially, a unitary resource, and that actions of one user on the resource are likely to effect actions of another user.  Ninth Circuit approved the EPA's approval of the Salish and Kootenai water quality standards as they applied to all activities within the reservation, including those activities taken by non-Indians.  Montana sought cert. on this case from the Supreme Court, which the Supreme Court denied in October of 1998.  This Montana v. EPA decision in the Ninth Circuit is the second federal circuit decision upholding the EPA's interpretation of the treatment of tribes as states in the context of the Clean Water Act.  The other case was called City of Albuquerque v. Browner, comes from the Tenth Circuit and involves the water quality standards set by the Pueblo of Isleta.

Now, back in 1993, when I was working with the Puyallups and we prepared the water quality standards program and submitted it to EPA and got it approved, there were three tribes in the country that had water quality standard programs, at that time.  In 1998, 13 tribes across the country have approved programs, another 20 have applications pending, and, in addition to the Clean Water Act, now Congress has amended the Clean Air Act, the Safe Drinking Water Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the Superfund Law and the Oil Pollution Act, to contain similar provisions for what is often referred to as treatment as a state.  That tribes would be treated in the same way as states for the purposes of implementing federal programs.  Now, I think that disputes in Indian country are going to continue to revolve around the issue of whether it is appropriate and whether tribes have the inherent power to regulate non-Indians in this context.  And, of course, one of the reasons for the dispute is simply the scarcity of resources and the continuing pressure we put on those resources from the population explosion that's happening in this country, especially in the west.  That population explosion, of course, is going to continue, I assume, and the pressures will continue to build on our resources, and so the question of which government has the power to make the value judgments about how clean the water should be, about what activities will be permitted and what activities will not be permitted, are important issues in the discussion of environmental policy nationally.  Now, for indigenous peoples, who have had a special relationship with the earth and components of the earth since time immemorial, that question, I think, is vitally important to their cultural survival.

In the context of the national debate on environmental justice, I think that discussion is also critical because it poses fascinating questions about the way our system treats matters of race, culture, human rights, religion, utilitarian politics, and our relationship to the natural environment.  And, I expect, more than likely, the next significant Indian law case in the Supreme Court, is going to address the context of tribal power in the environmental context.  Specifically, this question of whether or not non-Indian activities that cause harm or degradation to the environment of Indian country will be regulated by Indian tribes.

Now, thanks for your attention.  Questions?


Other links of interest

Organizations and links relating to the speaker

Links relating to the talk