Tribal Environmental Sovereignty: Culturally Appropriate Protection or Paternalism?

Article By: Anna Fleder and Darren J. Ranco, JNREL Vol. 19, No. 1

Abstract BY: Anthony Cash, Staff Member

According to popular conceptions in the United States, Native American culture is closely tied to the earth and, therefore, environmental awareness. Thus, it will come to most with little surprise that an examination of cases concerning Native Americans' tribal rights to regulate environmental issues within the Federal system would be illustrative of the larger issues confronting tribal sovereignty. By analyzing the issues and the direction of the court's ruling in Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), as compared to other recent decisions delineating the place of Native American tribes within the complex environmental regulatory scheme of the United States, one can see the possible solutions to problems posed by the tribal attempts at environmental regulation that affect non-tribal lands and people.

The decision in Browner, was made possible by the 1987 amendments to the Clean Water Act. These amendments allowed states to exercise a certain amount of authority in determining water quality standards and allowed for Native American tribes to be treated as states for certain purposes including the determination of water quality standards. In determining these standards for a five-mile long portion of the Rio Grande, the Pueblo of Isleta Indian Reservation adopted provisions more restrictive than New Mexico. The EPA's enforcement of these standards resulted in serious restrictions being impose on a waste water plant located near Albuquerque. The Tenth Circuit's decision in Browner ultimately sided with the Isleta Pueblo on every issue.

This was clearly a victory for the environment as it enabled tribes to regulate the amount of pollution entering waters which flowed through their lands, but Browner's impact on tribal sovereignty is not so clear. On one hand, Browner did allow tribal authorities to exert power over non-tribal peoples and land. On the other hand, Browner puts tribes in the position of becoming subservient to the Federal government in order to gain control over their own water quality standards. In essence, this puts the tribes in the position of semi-sovereign nations. Thus, tribal sovereignty is threatened at the same time that it is advance.

Browner, makes one thing very clear if tribes are to advance their interests and maintain cultural independence, then they must be willing to engage with the federal government in legal actions. But what legal actions and how to balance the need of tribal sovereignty against the need for cross-cultural dialogue and participation must be determined by the tribe involved on a case by case basis.