Examining Tribal Environmental Law

5th March 2014 By: Elizabeth Ann Kronk Warner

Since the revolution of environmental law began roughly forty years ago, scholars have wrestled with the complex interactions of the states and federal government, but they have largely ignored tribal governments. Although some scholarship exists regarding the suggested development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This Article fills that vacuum by taking a first look at existing tribal environmental law and exploring the laws of one tribal nation that has enacted several environmental laws. The Article also proposes some initial norms to guide the development of tribal environmental law.

The time has never been better for an examination of tribal environmental laws. Historically, Indian country has experienced substantial environmental contamination, suggesting persistent under-regulation. Similarly, today Indian country possesses substantial potential for natural resource development. For example, Indian country could generate an estimated $1 trillion if it fully develops its energy potential, which is inclusive of both traditional energy sources and alternative and renewable energy development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), include provisions that could potentially encourage tribal environmental laws. To take advantage of "streamlined" development under both the TERA provisions and the HEARTH Act, tribes must enact certain environmental review provisions. In addition, some tribes may choose to codify existing tribal environmental ethics or to protect strong cultural and spiritual connections to the land and environment. Finally, enacting robust environmental laws will promote tribes' inherent sovereignty. Overall, these factors indicate that the time is ripe for tribes to enact environmental laws.

Tribes need to develop their respective bodies of environmental law to reduce pollution, develop their tribal natural resources in a manner consistent with tribal culture, and promote their inherent tribal sovereignty. Yet little scholarship examines what laws tribes have enacted to date or provides a roadmap to guide the development of such laws. This Article fills the scholastic gap. It does so by describing existing tribal environmental law and by offering some initial thoughts on norms that should ground new tribal environmental laws. In Part I, the Article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. Next, in Part II, the Article provides an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. The Article then surveys and classifies the environmental laws of seventy-four federally recognized tribes. A significant number of federally recognized tribes have no publicly available tribal environmental laws. In light of this finding, Part IV examines the existing laws of one tribal nation, the Navajo Nation, which has a robust framework of environmental law that could serve as a model for other tribes. Part IV also proposes some norms for the development of tribal environmental law in the future. This Article lays the foundation for a robust examination of tribal environmental law. Close scrutiny of tribal environmental law offers exciting and expansive applications now and well into the future.

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