The Oklahoma Bar Journal May 2024

During the 1980s, Congress amended most of the federal environmental statutes to make clear that they applied in Indian Country. 22

to administer tribal environmental programs. 23 The statutes define the geographic area in which tribes may administer the environmental programs – typically within the tribe’s reservation or other areas within the tribe’s jurisdiction. 24 When the environmental laws were first amended to treat tribes as states, there were questions about the scope and extent of that authority. At a minimum, tribes could administer the environ mental laws to the extent of their inherent authority as a sovereign government. Tribes can even administer provisions of federal environmental laws when the law does not expressly authorize tribal regulation. For example, in City of Albuquerque v. Browner , the 10th Circuit held that a tribe had the inherent authority to issue water quality standards more stringent than those provided in the Clean Water Act despite the fact that the TAS provision of the CWA did not expressly include the section of the CWA dealing with promulgation of water quality standards. 25 The court found that this did not “pre vent Indian tribes from exercising their inherent sovereign power to impose standards or limits that are more stringent than those imposed by the federal government.” 26

omission “preclude[d] any interpre tation of the statute which would allow it to apply to Indian lands[.]” 14 At issue was the EPA’s promulga tion of an underground injection control (UIC) program regarding the Osage Nation mineral estate. 15 The 10th Circuit Court of Appeals rejected this argument. It reasoned that the SDWA applied to “per sons,” which the statute defined to include Indian tribes, and that there is a “presumption that Congress intends a general statute applying to all persons to include Indians and their property inter ests.” 16 It also concluded that the purpose of the SDWA was to enact minimum national standards for the protection of drinking water, and the exclusion of Indian lands from the reach of the statute would undermine this congressional pol icy. 17 It also afforded deference to the EPA’s interpretation of the stat ute as applying to Indian lands. 18 States also argued that to the extent the federal environmental statutes applied in Indian Country, states should be the primary regulator there. The EPA, however, interpreted the statutes to not authorize state regulation in Indian Country. Several federal appellate court rulings upheld the EPA’s interpretation. For example, in

State of Washington Dep’t of Ecology v. EPA , the EPA had “refused to permit the State of Washington to apply its state hazardous waste regulations ... on ‘Indian lands’” under the Resource Conservation and Recovery Act (RCRA). 19 Although the state and legislative history were “totally silent on the issue of state regulatory jurisdic tion on the reservations,” 20 the court concluded that the EPA had reasonably interpreted the RCRA not to authorize state jurisdiction based on “well-settled principles of federal Indian law” that “States are generally precluded from exercis ing jurisdiction over Indians in Indian Country unless Congress has clearly expressed an intention to permit it.” 21 APPLICATION OF ENVIRONMENTAL LAWS TO INDIAN COUNTRY AND TREATMENT OF TRIBES AS STATES During the 1980s, Congress amended most of the federal environmental statutes to make clear that they applied in Indian Country. 22 The amendments also included what are known as “treat ment as a state” provisions (TAS) that authorized Indian tribes to be treated as states and gain primacy

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

20 | MAY 2024

THE OKLAHOMA BAR JOURNAL