State challenge to tribe's authority rejected

TUESDAY, JUNE 4, 2002

The state of Wisconsin's long-running battle against tribal sovereignty hit a roadblock on Monday thanks to the Supreme Court.

Without comment, the Justices rejected an appeal of a ruling which upheld an Ojibwe tribe's right to regulate water quality on its reservation. The move lets stand a Clinton-era "treatment as state" (TAS) designation for the Sokaogon Band of northern Wisconsin.

The state challenged the status as a "dramatic expansion" of inherent tribal sovereignty. But by turning down the case, the Court refused to invalidate the Sokaogon's powers over the 1,850-acre Mole Lake reservation.

The status is largely fact-specific, with the Environmental Protection Agency over the course of the several-year dispute laying out a solid basis for the TAS designation under the Clean Water Act. Bush administration attorneys supported the tribe's right to control its water resources, which include a lake used for subsistence and cultural purposes.

The case nonetheless represents a victory for the tribe and its supporters, who oppose plans for a huge 55 million-ton zinc-copper sulfide mine. To be located upstream from the reservation, the operation is supported by the state.

The TAS designation, in theory, allows the Sokaogon Band to implement strict water standards that could restrict the development The Supreme Court, in a case involving a New Mexico tribe, upheld the reaches of such regulations even off-reservation.

In upholding the tribe's authority, the 7th Circuit Court of Appeals noted much the same. "Once a tribe is given TAS status, it has the power to require upstream off- reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters," wrote Circuit Judge Diane P. Wood for the majority.

In addition to the Sokaogon Band, area tribes also oppose the project. The Forest County Potawatomi Tribe, the Menominee Nation and the Red Cliff Ojibwe Band have jointed a broad coalition of municipalities and environmentalists against the cyanide mining practices of the industry.

The groups contend the use of cyanide will pollute the water supply, a charge disputed by Nicolet Minerals, the company behind the proposal. Nicolet has repeatedly said its mine will not harm sacred sites, cultural resources or harm the environment.

Up to 200 tons of the chemical could be used at the mine each year. A bill to ban cyanide mining has stalled in the state Legislature.

Sokaogon Chairwoman Sandra L. Rachal was traveling yesterday and could not be reached for comment.

Related Documents:
DOJ Brief | Supreme Court Docket Sheet

Related Decisions:
STATE OF WISCONSIN v. ENVTL. PROT. AGENCY, No 99-2618 (7th Cir. September 21, 2001)

Relevant Links:
Sokaogon Band, Mole Lake Reservation - http://www.molelake.com Ban Cyanide at Crandon Mine - http://www.alphacdc.com/treaty/cyanide.html
Nicolet Minerals - http://www.crandonmine.com
American Indian Environmental Office, EPA - http://www.epa.gov/indian