Tribes as Innovative Environmental “Laboratories”

Transcript:Tribes as Innovative Environmental “Laboratories”:
Tribes as Innovative Environmental “Laboratories” Elizabeth Ann Kronk Warner Assoc. Dean of Academic Affairs, Professor of Law, and Director of Tribal Law and Government Center University of Kansas School of Law November 5, 2015 Presentation Overview Environmental Law Applicable in Indian Country Why Enact Tribal Environmental Laws? Existing Tribal Environmental Laws Types of Tribal Environmental Laws: Delegated Inherent Sovereignty Innovative Differences with Federal Environmental Law Non-Code Sources of Tribal Environmental Law Environmental Law Applicable in Indian Country Tribal sovereignty Inherent sovereignty over citizens on tribal lands remains Montana – implicit divestiture of jurisdiction over non-citizens by virtue of dependent status 2 Exceptions: 1) consensual; or, 2) threat to health and safety of the tribe Following Strate and Hicks, there is an issue as to importance of land status (i.e. tribally-controlled v. non-Indian) States Generally lack authority unless granted by Congress Most states opt to participate in the federal environmental scheme without asserting jurisdiction over Indian country Environmental Law Applicable in Indian Country, Cont. Federal Law Federal government enacted numerous environmental statutes, especially between 1970 and 1980 It has generally been held that these statutes apply to Indian Country Minimum federal standard will always apply EPA regulates where tribes decline to do so Several statutes, such as the Clean Water Act, allow tribes to be treated as states Tribes with TAS status may enact more stringent regulations – ex. City of Albuquerque v. Browner Even if the statute does not specifically grant TAS status, EPA may treat tribes similar to states. RCRA is a notable exception. Why Enact Tribal Environmental Laws? Tribal Sovereignty and Tribal Environmental Ethics Past Environmental Contamination and Emerging Environmental Challenges Past Contamination Natural Resource Extraction Climate Change Existing Tribal Environmental Laws Nationwide Reviewed the tribal codes of 74 tribes in four different geographical regions: Arizona, Montana, New York and Oklahoma Looked for four categories of environmental laws: water, air, solid waste and environmental quality Tribes as Innovative Environmental “Laboratories”, 86 University of Colorado Law Review 789 (2015). Existing Tribal Environmental Laws Result of Nationwide Survey 4 tribes, 5% of the survey group, enacted air pollution regulations 23 tribes, 31% of the survey group, enacted water pollution regulations 27 tribes, 36% of the survey group, enacted solid waste regulations 9 tribes, 12% of the survey group, enacted environmental quality provisions Overall: Only one tribal nation enacted laws in all four categories studied (possibly two) 38 tribes, 51% of