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TUESDAY, NOVEMBER 6, 2001

Having lost the latest round in a long battle against tribal sovereignty, the state of Wisconsin is asking a federal appeals court for a second chance to prove the Sokaogon Band of Ojibwe shouldn't control the quality of water on the Mole Lake Reservation.

In September, the 7th Circuit Court of Appeals upheld the tribe's right to enact tough water standards, even if they affect non-Indians elsewhere. By unanimous decision, a three-judge panel of the court said the tribe "demonstrated that its water resources are essential to its survival" and should be allowed to develop its own programs.

But the state on Friday asked the full panel of the court to hear the case all over again. If the court agrees, Wisconsin will get another chance to convince 11 judges it is sole authority.

The dispute centers on a still controversial set of regulations implemented during the Clinton administration. Under the Clean Air Act and the Clean Water Act, the Environmental Protection Agency is allowed to treat tribes as states.

The designation recognizes a tribe's authority to enact environmental standards that have an impact beyond reservation borders. For this reason, a number of states and industry -- whom EPA officials call "the usual suspects" -- have challenged the treatment as states, or TAS, program.

in the case at hand, a mining company's plans for a 55 million-ton zinc-copper sulfide mine would be limited by the TAS designation for the Sokaogon Band of Lake Superior Ojibwe. The mine would be located about a mile upstream from the reservation and the tribe's water standards could be so high as to make the project unfeasible for both the company and the state, which stands to benefit financially.

The mine has drawn the opposition of tribal officials, members and environmentalists. In particular, tribal members who depend on Rice Lake for food, water, medicine and other subsistence purposes say the project would devastate their traditional lifestyle.

The tribe's reliance on the lake helped convince the 7th Circuit of the necessity of the TAS designation. Additionally, the court considered that all 1,850 acres of the reservation are tribally-owned.

Since the ruling was unanimous, there isn't any indication that the state would succeed the second time around. But that hasn't stopped states throughout the country from continuing to challenge tribal authority.

Earlier this year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate clean air regulations affecting Indian Country. The Supreme Court declined to hear the case in March.

New Mexico previously took its water dispute with Isleta Pueblo to the Supreme Court and lost. Wisconsin has been more successful -- the threat of litigation forced the withdrawal of TAS designations for three tribes.

If the full panel of the 7th Circuit agrees to rehear the case, it take up to another year for a decision to be handed down. Barring a reconsideration, the state could also seek Supreme Court review.

Get the Case:
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
American Indian Environmental Office, EPA - http://www.epa.gov/indian

Related Stories:
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)