The Oklahoma Bar Journal May 2024

within a reservation is owned in fee by non-Indians. The reserva tions of the Five Tribes affirmed by McGirt and its progeny are good examples of this phenomenon. After Congress amended the vari ous federal environmental statutes to allow tribal primacy, 31 the EPA pro mulgated regulations interpreting the statutes and defining the extent of the tribes’ geographic jurisdiction. One of the most vexing questions the EPA encountered was whether a statute’s authorization of tribal regulation within a “reservation” included all land within the reserva tion, including non-Indian fee land. Initially, the EPA took a cautious approach and generally required tribes to demonstrate inherent authority to regulate non-Indian fee lands before allowing tribes to administer federal environmen tal programs on all lands within a reservation. This required the tribe to satisfy what is known as the Montana test. In 1981, the U.S. Supreme Court held that an Indian tribe presumptively lacks the inherent power to regulate conduct on non-Indian fee lands located within a reservation unless it sat isfies one of two exceptions. 32 First, tribes can regulate the conduct of non-Indians “who enter consen sual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 33 This is known as the “consensual relations” excep tion. Second, a tribe may regulate the conduct of non-Indians on fee lands “when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 34 This is often referred to as the “direct effects” exception. Although the EPA required tribes to satisfy a Montana exception

before granting them authority to regulate non-Indian fee lands, the EPA generally concluded that the regulation of things like air and water pollutants satisfied the second Montana exception since pollution threatened the health and welfare of the tribe. 35 However, requiring tribes to demonstrate jurisdiction by satisfying the Montana test on a case-by-case basis was a time- consuming and resource-intensive process that delayed approval of tribal regulation. 36 Later, the EPA concluded that statutes like the Clean Air Act and Clean Water Act expressly delegated authority to the tribes to regulate all land within their reservations, including non-Indian fee land, obvi ating the need for the tribe to satisfy a Montana exception on a case-by case basis. These interpretations were upheld by the federal courts. For example, in Arizona Public Service Company v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit concluded that the Clean Air Act constitutes an express delegation of regulatory authority over non-Indian fee lands within a reservation. 37 The Clean Air Act authorizes tribal regulation “within the exterior boundaries of a reserva tion or other areas within the tribe’s jurisdiction.” 38 The EPA interpreted “[t]he statute’s clear distinction between areas ‘within the exterior boundaries of the reservation’ and ‘other areas within the tribe’s juris diction’ [as] carry[ing] with it the implication that Congress consid ered the areas within the exterior boundaries of a tribe’s reservation to be per se within the tribe’s jurisdic tion.” 39 The court, therefore, found that the Clean Air Act authorizes tribal regulation of all land within a reservation, including non-Indian fee land. 40

On reservations where there are significant amounts of land owned by non-Indians, however, a tribe’s inherent authority is greatly limited. Due to rulings by the U.S. Supreme Court, tribes have been largely divested of their inherent authority to regulate land owned by non-Indians and can only regulate non-Indian land if they meet one of two relatively narrow exceptions. Because within many Indian reservations today there is a checkerboard pattern of Indian and non-Indian ownership of individ ual tracts of land, a tribe’s ability to implement a uniform environmen tal policy within the reservation is frustrated by these limits on its inherent authority. In this circum stance, Congress can delegate to tribes powers above and beyond those that tribes possess inherently, including the authority to regulate all land within a reservation – even land owned by non-Indians. 27 INHERENT VS. DELEGATED AUTHORITY AND NON INDIAN FEE LAND In the late 1800s and early 1900s, Congress enforced a policy of allotment whereby it “sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribe mem bers.” 28 As a result of this policy, “individual Tribe members were eventually free to sell their land,” 29 and many “individual parcels have passed hands to non-Indians.” 30 These non-Indian-owned lands are often referred to as “non-Indian fee lands” or just “fee lands.” It is not uncommon, then, for there to be many tracts of non-Indian fee land within the exterior boundaries of an Indian reservation. In many cases, the vast majority of land

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.

MAY 2024 | 21

THE OKLAHOMA BAR JOURNAL