Due Process and Public Participation in Tribal Environmental Programs

Environmental law as it has evolved in the United States can be described as “environmental federalism.” Federal laws establish the basic framework for protecting and restoring air and water quality, managing wastes, dealing with hazardous materials, and a range of other subjects. Within the framework of these federal laws, states are required to perform certain functions, and they have the option to perform other functions pursuant to delegations of authority from the federal Environmental Protection Agency (EPA). States also have the option, through the exercise of their sovereignty, to enact and carry out laws that deal with aspects of environmental protection that are not covered by federal law.

In the modern era of environmental law, which began in 1970, a substantial amount of litigation has arisen in the context of disputes between and among the various governmental entities: state versus federal agency, state versus state (sometimes with a federal agency taking sides), federal agency versus local government, and local government versus state agency (sometimes with a federal agency taking sides). In a federal system, such disputes are to be expected.

Over the past decade, a number of Indian tribal governments have become actively engaged in environmental federalism, largely pursuant to amendments in the relevant statutes and implementing regulations which provide that tribes can assume roles similar to those of the states. Several of the tribes that have risen to meet the challenges of performing such roles have seen lawsuits filed by states and cities against the EPA over the agency’s decisions to approve tribal programs. In the context of water quality, opposition to tribal authority has included efforts to rewrite the Clean Water Act to limit the territorial authority of tribes.

The opposition to tribal regulatory authority features an argument that is unique to Indian country, one that does not seem to arise in any other environmental-federalism context. It is the argument made by non-Indians who live within reservation boundaries, and by states on behalf of such people, that, since they have no right to representation in tribal government, they should not be subject to tribal law. This argument has some resonance. More than just the fear of being treated unfairly by a government in which one has no voice, it is an argument that can be framed as a matter of human rights. The right to participate in government is enshrined in article 25 of the International Covenant on Civil and Political Rights. One can also make a human rights counter argument. For example, since federal laws that opened reservations to settlement by non-Indians violated the collective right of tribes to self-determination, federal recognition of tribal authority over environmental protection for all lands within reservation boundaries is part of a contemporary remedy for the historical violation of self-determination.

The tension between the interests of tribal governments in protecting the environment of all lands within reservations and the rights of nonmembers of tribes need not be resolved by sanctioning the intrusion of state governmental power within reservation boundaries. We may instead find ways to resolve this tension by looking into some of the details of environmental federalism and the modern practice of tribal sovereignty. When tribes assume state-like roles for purposes of carrying out federal environmental laws, they take on these roles in the context of federal regulations that provide numerous opportunities for public participation as well as safeguards for ensuring that persons whose interests are regulated by tribal governments are afforded due process.