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WEDNESDAY, MAY 15, 2002

The Bush administration has asked the Supreme Court to allow a tribe to implement potentially strict water quality standards over the objections of the state of Wisconsin.

In a brief filed earlier this month, Solicitor General Ted Olson defends the right of the Sokaogon Band of Ojibwe to exercise authority over the Mole Lake Reservation. Citing a history of related cases, he urges the nation's highest court to reject the state's "poor" challenge and let a September 2001 appeals court ruling stand.

"[The] suggestion that this decision will inevitably lead to tribal regulation of waterways throughout Wisconsin vastly exaggerates the impact of this case," Olson wrote on May 3.

Under the Clean Water Act, the tribe applied for, and received, permission from the Environmental Protection Agency to develop a water quality program. This "treatment as a state," or TAS, designation was based on several factors including the tribe's heavy dependence on Rice Lake, which is used for food, fresh water, medicine and raw materials.

More significantly, however, the 1,850-acre reservation is almost entirely tribally owned.

But according to the state of Wisconsin, allowing the tribe exercise control would have an impact well beyond the borders of the reservation. In his brief, Thomas L. Dosch, a Wisconsin assistant attorney general, said the TAS approval was a "dramatic expansion" of the tribe's inherent -- and limited -- rights.

More specifically, though, the state has an economic interest in a controversial zinc-copper sulfide operation on Wolf River, which feeds into Rice Lake. Tribal officials, Native activists and environmentalists have opposed the mine, which would be located approximately one mile away from the reservation.

By enacting tough water requirements, the tribe could put a wrench in the state's plans. The Supreme Court, in a case affecting Isleta Pueblo in New Mexico, held that tribal standards must be adhered to by upstream communities.

Still, Dosch asserted that the case is "a good vehicle for addressing the limits of tribal sovereignty over nontribal resources and persons." The state wants the EPA's fact-specific TAS designation invalidated.

Siding with Wisconsin in the state of Idaho, which has disputed the extent and reach of tribal sovereignty in several recent cases but has lost them all. Fidelity Exploration & Production Company, an oil and gas conglomerate which is currently eyeing lands throughout the Wyoming and Montana for lucrative coalbed methane drilling operations, has filed a brief in support as well.

Last year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate tribal regulations implemented under the Clean Air Act. The case was refused in March 2001.

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:
Ban Cyanide at Crandon Mine - http://www.alphacdc.com/treaty/cyanide.html
Crandon Mine - http://www.crandonmine.com
American Indian Environmental Office, EPA - http://www.epa.gov/indian

Related Stories:
Mine near Wis. reservation upheld (1/30)
Wis. tribe has hopes after cyanide ban (11/7)
State fighting tribal water ruling (11/6)
Wis. might appeal Ojibwe decision (9/25)
Challenge to tribal authority rejected (9/24)
Court rejects challenge to tribal authority (4/17)
EPA Budget: No new tribal grants (4/13)
Pueblo battles arsenic in water standard (4/16)
EPA attorney pleads guilty (06/28)