FROM THE ARCHIVE
Court rejects challenge to tribal authority
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APRIL 17, 2001

In a move praised by Indian Country advocates, the Supreme Court on Monday rebuffed a broad challenge to tribal authority and let stand a series of environmental regulations implemented during the Clinton administration.

The state of Michigan and a number of power utilities and industry groups sought to have the Supreme Court invalidate tribal authority under the federal Clean Air Act. But the Court declined to review an appeals court ruling which affirmed a set of Environmental Protection Agency regulations affecting tribes.

The rules authorize the right of tribes to define their own air quality control standards in Indian Country. States already have the same power and the tribal rules fall under the EPA's "treatment as states" (TAS) policy.

A number of states, however, have challenged the ability of tribes to be treated as equal partners. In addition to air programs, tribes can develop their own water standards, which are often tougher than neighboring non-Indian communities.

As a result, states are forced -- usually by the courts -- to comply with strict Indian Country criteria. Utilities who operate on tribal land are also affected.

In the case in question, both groups argued tribes shouldn't be allowed to have environmental control over non-Indian owned land within reservations or on trust lands. The District of Columbia Court of Appeals last May rejected all of their claims, which the Supreme Court let stand.

But EPA officials yesterday said state challenges to tribal sovereignty were far from over. The air rules were questioned almost as soon as they were finalized in 1998. States have always resisted recognition of sovereignty of Indian Nations, they added.

A lawyer who represented tribes who intervened in the case agreed. "I think it's a feeling on part of states that they need to protect their jurisdiction or somehow that the tribes are usurping their jurisdiction," said Jill Grant, a Washington, DC, attorney.

Grant said her clients -- the Gila River Indian Community of Arizona, the Navajo Nation, and the Shoshone-Bannock Tribe of Idaho -- are all in the process of implementing air programs. She added that the process is a lengthy one, but that tribes "feel under principles of sovereignty they have a right" to develop them.

For fiscal year 2002, about $11 million has been requested by the Bush administration for tribal grants under the Clean Air Act. An additional $52.5 million in grants has been requested to assist tribes in developing environmental programs.

New Mexico, South Dakota, and Nevada submitted amicus briefs to the Supreme Court in support of invalidating the rules. New Mexico and Wisconsin have previously challenged tribal water programs.

New Mexico's case was rejected by the Supreme Court four years ago while Wisconsin succeeded in having TAS designations withdrawn for three tribes after a former EPA attorney pleaded guilty last year to a misdemeanor charge of contempt of court.

Mark Radell was alleged to have manufactured, falsified, and back-dated documents for the Lac du Flambeau Band of Lake Superior Ojibwe, the Oneida Nation, and the Menominee Nation.

Get the Case:
Michigan v. EPA No. 98-1196 (DC Circuit Court of Appeals May 5, 2000)

Get the Rules:
Indian Tribes: Air Quality Planning and Management (EPA)

Relevant Links:
American Indian Environmental Office, EPA - http://www.epa.gov/indian

Related Stories:
EPA Budget: No new tribal grants (4/13)
Pueblo battles arsenic in water standard (4/16)
EPA attorney pleads guilty (06/28)

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