EPA and Indian Reservations: Justice Stevens' Factual Approach

20 ELR 10429 | Environmental Law Reporter | copyright © 1990 | All rights reserved

EPA and Indian Reservations: Justice Stevens' Factual Approach

Peter W. Sly

Editors' Summary: Of cultural and environmental significance, Indian reservations present unique jurisdictional problems. This Article explores the implications of two Supreme Court cases — one on zoning authority and one on criminal jurisdiction — for EPA's implementation of environmental statutes on reservations. After discussing two doctrines of Indian law and the two cases, the author focuses on Justice Stevens' opinion in Brendale v. Yakima Indian Nation and proposes that EPA should modify its Indian policy by applying Stevens' approach to resolving jurisdictional issues on reservations. The result, he argues, will be better environmental management of tribal lands.

Peter Sly is an attorney in Oakland, California. Mr. Sly was Director of the Conference of Western Attorneys General from 1985-88 and is the author of RESERVED WATER RIGHTS SETTLEMENT MANUAL (Island Press, 1988).

[20 ELR 10429]

The complexity of Indian policy takes on a new twist as tribes seek to regulate reservation environments. A recent Supreme Court holding offers a judicious factual approach to deciding whether states or tribes should regulate. If applied by the Environmental Protection Agency (EPA), this approach could substantially improve the administration of environmental law and the environment on fragmented Indian reservations.

The Supreme Court began a new era in federal Indian policy with its decision in Brendale v. Yakima Indian Nation.1 The Justices argued two doctrines of Indian law at length in their published opinions. Both doctrines have a basis in history and in the present character of diverse reservations. One doctrine, which might usefully be labelled the "internal regulation" doctrine, limits a tribe's powers to its members and trust lands.2 Another, which might be called the "territorial regulation" doctrine, extends tribal powers to the entire reservation, including lands of nonmembers.3 Although seven Justices supported uniform application of one doctrine or the other, Justices Stevens and O'Connor adopted a new factual approach to Indian law and policy.4 The Stevens/O'Connor approach offers an approach that better fits the complex facts of Indian reservations than a uniform application of either the territorial or the internal doctrine.

The internal view of tribal power also has deep historical roots.17 The internal doctrine was expressed in executive orders and statutes after the Civil War. During the Dawes Act period (1888-1934), federal policy was to assimilate Indians into the dominant culture.18 Communally held tribal lands were allotted to individual Indians, who could eventually sell their lands. The federal government invited nonmembers to settle on reservations. Over time, towns developed and incorporated under state law,19 and many reservations became populated mostly by nonmembers. In 1924, Congress granted full citizenship to Indians, including protection against racial discrimination by state and local governments. On many reservations, the legacy of the Dawes Act includes complex checkerboard landholding and racial polarization between nonmembers20 and Indians [20 ELR 10431] enrolled in the tribes.21 Nonmember majorities on Dawes Act reservations exert strong pressure on state22 and local governments23 to defend nonmember interests against tribal claims of territorial jurisdiction.

The internal view is that tribal governments are generally limited to internal matters of the tribe and cannot regulate the affairs of nonmembers. Under this view, state and local governments have primary police powers over nonmember fee lands within reservations. Local governments must respect tribal interests in health and welfare and are not permitted to regulate tribal trust lands.

Brendale

The Yakima reservation is typical of many Dawes Act reservations opened to nonmember settlement. When the Brendale litigation began, a portion of the reservation had been classified by the Department of the Interior as "open." The open area, with one-half fee and one-half trust lands, had an 80 percent nonmember population. The "closed area" had no permanent residents and was primarily tribal trust land.24 The case arose when the Yakima Nation challenged county land-use regulation in both areas of the reservation.

Justice White, joined by Justices Rehnquist, Kennedy, and Scalia, wrote the opinion concerning the open area. Articulating the internal view of tribal governments, Justice White held that tribes cannot exercise power beyond that necessary to protect tribal self-government or to control internal relations of the tribe. According to these four Justices, tribes have no regulatory authority over nonmembers landowners anywhere on a reservation, even closed areas, absent express congressional delegation. Justices Stevens and O'Connor joined in the White opinion only for the open area of the reservation.

Justice Blackmun, joined by Justices Marshall and Brennan, wrote a dissent generally supporting tribal territorial jurisdiction over the entire reservation, including the open lands settled by nonmembers. He argued that the internal doctrine would "strip tribes of the power to protect their trust lands over which they enjoy unquestioned and exclusiveauthority"25 and concluded that tribal sovereignty is largely determined by geography.26 Nonetheless, he recognized that discrete areas within a reservation might be exempt from tribal authority: "It may be that on some reservations, including the Yakima reservation, there are essentially self-contained, definable, areas in which non-Indian fee lands so predominate that the tribe has no significant interest in controlling land use."27

The Stevens Opinion

Justice Stevens, joined by Justice O'Connor, wrote the opinion for the Court concerning the closed area of the reservation, in which Justices Blackmun, Brennan, and Marshall concurred. The Stevens opinion concurred with Justice White's opinion for the open area of the reservation. Both Justice White and Justice Blackmun sharply criticized Stevens' opinion.28

Justice Stevens stressed the distinctions between open and closed areas of the reservation, using the factual differences between them to suggest a new approach to Indian issues. He applied either the internal or the territorial doctrine, depending on the facts of settlement. According to Justice Stevens, the tribe's power to zone is like an equitable servitude — it runs with the land, and if neutrally applied, the tribe has zoning power over a nonmember's land within the closed area. However, the tribe's equitable servitude interest is defeated when the open area, with only 20 percent Indian population, loses its economic and cultural character as Indian country.

Justices Stevens and O'Connor were aware of the diversity of Indian reservations and the difficulty of case-by-case adjudication. For example, under their factual approach, a territorial view of tribal sovereignty is appropriate for the Acoma Pueblo, a tribal enclave of mostly tribal members. At the other extreme, the more limited internal view of tribal sovereignty is appropriate for the Agua Caliente reservation, with checkerboard lands in downtown Palm Springs.29

Justice Stevens is no newcomer to federal Indian law. As successor to Justice Douglas' seat on the Court, he has written some of the Court's most important Indian opinions. In some cases, he has sided with the tribes.30 In others, he has taken the nonmember side.31 In one of the most [20 ELR 10432] sensitive Indian cases to reach the Court, he wrote an opinion admonishing the state of Washington to respect Indian off-reservation fishing rights.32 In a strong dissent in Merrion v. Jicarilla Apache Tribe,33 he set forth a rationale later adopted by the seven to two majority in Duro.34 During the 1989 Term, he wrote an opinion in three Indian cases.35 He supported the tribes in an equally divided affirmance of the first Indian water rights case to reach the Court after a general stream adjudication.36

Montana as Interpreted by Brendale

In 1981, the two doctrinal views of tribal powers in Brendale had clashed in Montana v. United States.37 Montana held that the Crow tribe could not regulate nonmember fishing and hunting on fee land within an opened reservation. In Montana, the majority opinion by Justice Stewart took an internal view of tribal powers: "It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government."38

However, the Montana opinion included dicta that has been argued to support the territorial view. Montana's dicta added two exceptions to the internal view of tribal powers. First, the tribe may regulate by taxation, licensing, or other means the activities of nonmembers who enter into consensual relationships with the tribe. Under this first Montana exception, tribes have governmental powers over nonmember contracts and leases, which go beyond tribal powers under contract law.39

The second exception provides: "A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."40 Justice White's opinion in Brendale underscored the "may" in this language. He stated that the tribe itself has no authority to regulate the use of fee lands. Rather, Justice White would require state and local agencies to protect asserted tribal interests under federal supremacy principles. The issue becomes the extent of the tribe's legitimate interest in activities on nonmember fee lands within the reservation. Any other reading of Montana, according to Justice White, would allow the dicta of this second exception to swallow Montana's rule — tribal police powers over nonmembers would be plenary, which would be contrary to the holding in Montana itself.

In Brendale, Justice Stevens discussed Montana only with respect to the closed area of the Yakima reservation. He noted that the Yakima tribe's regulation of the closed area was nondiscriminatory, necessary to protect the tribe's welfare, and did not affect any state or county proprietary interest.41 Therefore Montana's holding did not apply to the closed area of the Yakima reservation. Justice Stevens' open/closed classifications would effectively replace the doctrinal approach derived from the dicta of Montana's second exception.

Justice Blackmun, a dissenter in both Brendale and Montana, reiterated his view that the Court made a mistake in Montana by creating a presumption against tribal civil jurisdiction. He argued that reservation boundaries should define the extent of tribal powers.

Montana's second exception has spawned complex cases, particularly in the Court of Appeals for the Ninth Circuit, which seems to follow the territorial view of tribal powers.42 However, Justice Stevens' Brendale analysis, if [20 ELR 10433] adopted by EPA, may provide a factual analysis of difficult tribal jurisdiction questions without the need for case-by-case doctrinal litigation.43 Stevens' factual approach may also help EPA avoid the difficult constitutional issues presented by tribal regulation of a majority nonmember population. These constitutional issues are posed by the Court's opinion in Duro.

Constitutional Limitations on Tribal Power Over Nonmembers

In Duro v. Reina,44 its most recent Indian law decision, the Court limited tribal criminal powers over nonmembers. The crucial part four of the opinion drew on Justice Stevens' dissenting opinion in Merrion, an Indian tax case.45 The Court rejected "an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system. See Merrion . . . (Stevens, J., dissenting)."46 Nonmembers who reside on Indian reservations are in a unique position. Because tribal governments are not subject to the constitutional limitations of the Bill of Rights,47 nonmembers cannot vote for, control, or sue tribal governments that seek to regulate them.48 Although Congress adopted an Indian Civil Rights Act49 in 1968, the Court has held that nonmembers cannot sue to enforce civil rights against tribal governments because Indian tribal governments are immune from suit.50

In Duro, the Court held that retained tribal sovereignty did not include criminal authority over a nonmember citizen. The case arose when the Salt River Pima-Maricopa Indian Community sought misdemeanor prosecution against a nonmember Indian who allegedly fired a gun.51 Duro raised the defensive argument that as a nonmember Indian, he could not be subject to tribal jurisdiction. He asserted that this would subject him to an impermissible racial classification and to a tribunal with a potential for bias.52 The Court rejected a broad territorial view of tribal powers. Justice Kennedy extended the analysis of Oliphant v. Suquamish Tribe53 as follows:

A basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens. Oliphant recognized that the tribes can no longer be described as sovereigns in this sense. Rather . . . the retained sovereignty of the tribes is that needed to control their own internal relations and to preserve their own unique customs and social order.54

Part four of Justice Kennedy's opinion discussed Duro's constitutional rights. Because all Indians are citizens, they are entitled to the full protection of the Constitution. With respect to citizens,

A tribe's additional authority comes from the consent of its members . . . . Tribal courts are often subordinate to the political branches of tribal governments and the Bill of Rights does not apply to Indian tribal governments . . . the Indian Civil Rights Act provides some statutory guarantees of fair procedure, but these guarantees are not equivalent to their constitutional counterparts.55

Two aspects of Duro are relevant to EPA's environmental programs. First, the Court noted that Congress could not constitutionally delegate enforcement powers against nonmembers to tribal courts with questionable due process protections.56 This prohibition creates a problem for EPA's criminal environmental enforcement programs. EPA has recognized that tribes cannot undertake criminal enforcement against nonmembers.57 Rather, EPA will undertake such enforcement itself when the tribe is treated as a state. However, there is little reason for EPA to establish federal criminal enforcement programs on reservation areas that are primarily nonmember. Neither EPA nor the Department of Justice can effectively replace existing state enforcement programs on open reservation areas.58

Second, Duro rejected the claim that a "jurisdictional void" in Indian enforcement statutes might provide a basis for tribal powers over nonmember citizens.59 The Court suggested action by Congress or by local reciprocal agreements to address any problem with the practicalities of enforcement.60

Brendale holds that population and landholdings on Indian [20 ELR 10434] reservations must be considered to determine the applicable doctrine.61 Although Duro's holding is limited to criminal jurisdiction, the limitation on tribal powers to govern nonmembers applies when tribal environmental regulation may amount to a compensable taking of nonmember lands.62 Brendale's limitation on tribal civil territorial powers in open areas is thus strengthened by the holding in Duro.63

EPA's Indian Policy

Unlike the Department of the Interior, EPA is a relative newcomer to Indian affairs. This inexperience presents obvious dangers; it also provides an opportunity for a positive role. EPA is unencumbered by the history and bureaucracy that Interior has developed on Indian policy. Complex litigation over jurisdictional questions involving EPA, the tribes, and the states64 will only retard efforts to cleanse reservation environments. Justice Stevens' Brendale opinion provides EPA an opportunity to avoid the case-by-case doctrinal litigation that has plagued Interior.

The 1984 Indian Policy

EPA's 1984 Indian policy65 assumes that tribes have authority over " reservation lands" and the "reservation populace." The broad language of the policy seems to reflect the territorial view of tribal powers:

EPA recognizes Tribal Governments as sovereign entities with primary authority and responsibility for the reservation populace.66

In keeping with the principle of Indian self-government, the agency will view Tribal Governments as the appropriate non-Federal parties for making decisions and carrying out program responsibilities affecting Indian reservations, their environments and the health and welfare of the reservation populace.67

EPA recognizes a trust responsibility . . . [and] . . . will endeavor to protect the environmental interests of Indian Tribes when carrying out its responsibilities that may affect the reservations.68

A territorial interpretation of the 1984 policy is based on Ninth Circuit cases that are inconsistent with the Supreme Court's decisions in Brendale and Duro as described above.69 Even after Brendale, EPA has awarded most of its limited Federal Water Pollution Control Act planning funds to tribes that are claiming authority over nonmembers in open areas.70 Given legal questions about tribal territorial powers on open reservations, EPA should shift limited environmental planning funds to the tribes on closed reservations that have territorial powers under Brendale.

In the environmental regulation arena, many questions arise if nonmember citizens assert that tribal regulation constitutes a "taking" of their property without due process or compensation.71 Does tribal sovereign immunity apply to such claims?72 Is the United States liable in Claims Court73 if EPA approves "treatment as a state" status for a tribal regulatory scheme that does not provide constitutional protections for nonmember citizens? Is each EPA treatment as a state determination consistent with federal policy on constitutional takings?74 These questions may be [20 ELR 10435] raised as the courts struggle with Duro's requirement of consent of the governed in the civil context.75

Although Congress' power in Indian matters is often described as "plenary," constitutional limits apply when federal legislation affects individual property rights on the reservation.76 Justice Stevens' approach allows EPA to eliminate most of the potential Duro claims that will arise in open areas.

Brendale Classifications

The statutes authorizing EPA to treat tribes as states do not explicitly grant the tribes territorial powers over nonmembers.77 EPA has interpreted environmental statutes to require a finding by the Agency that each tribe seeking treatment as a state demonstrate inherent or specific statutory powers that authorize exercise of territorial jurisdiction.78 Similarly, EPA has taken the position that environmental statutes do not authorize the Agency to delegate federal power tostates. EPA is required to make specific findings of tribal authority and jurisdiction to permit a tribe to be treated as a state.79

Justice Stevens' Brendale approach requires a factual inquiry. To implement this approach, EPA should prepare maps and tables that answer the following questions:

1. Are there incorporated towns or special districts within reservation boundaries (e.g., soil conservation districts, irrigation or water districts, and state school districts)?80 Only districts that freely elect a representative board should be included. If so,

2. What is the proportion of land owned in fee (i.e. free of all federal trust status) within the municipal or district boundary?81 and

3 What is the proportion of nonmember resident population as shown by the most recent census statistics?82

Using these facts and Brendale, many reservation areas come almost entirely within the closed classification.83 For example, the large reservations in Arizona are generally closed. For these reservation areas, EPA should work closely with tribes84 and Congress85 to establish tribal environmental enforcement programs. Although border issues with adjacent state (or open) areas may arise,86 the "bright line" suggested by Justice Stevens' policy will reduce conflicts.

The use of existing district lines is a reasonable response to the problem of classifying reservation lands that troubled Justices White and Blackmun. Existing district lines clearly establish a boundary between state and tribal territorial authority. Most special districts were created to serve a land-related purpose and to raise revenue for services to lands or residents within them. Irrigation and water districts in particular will have an interest in water quality standards, non-point-source programs, and other EPA programs that may affect their operations. The districts themselves will not normally enforce environmental laws.87 Their boundaries are used only to determine where primary state environmental enforcement jurisdiction exists.

Duro suggests limits on tribal powers over nonmembers even on closed reservation areas. However, a nonmember who moves to the Hopi reservation in 1990 has taken the necessary consensual action to place himself and his pro[20 ELR 10436] perty within the jurisdiction of the tribe.88 EPA should work closely with tribes to ensure that due process interests of nonmember citizens in closed areas are protected. EPA should deal differently with the proprietary actions of a tribe, for example, by regulating tribal landfills.89 In addition, the Agency should work closely with tribes and states with regard to off-reservation aspects of tribal environmental programs.90

On reservation areas that are open under Justice Stevens' Brendale test, EPA should continue to work with states as primary environmental enforcers.91 Because Indians are citizens, tribal members can vote and fully participate in the local government process. Under Brendale, tribal interests are protected because states and local governments are required to recognize demonstrably serious impacts on tribal political integrity, economic security, health, or welfare. EPA should provide technical support for tribes seeking protection of trust interests in state or local forums.

Fine-tuning the Checkerboard

EPA's general environmental policy is to fill in all environmental enforcement gaps from "ocean to ocean," either through approval of state standards (or where applicable, tribal standards) or by implementing its own standards. In most cases, states cannot enforce environmental laws on Indian trust lands.92 Thus, checkerboard Indian trust lands present a problem for states that have enforced environmental laws against nonmembers on lands within reservations. In checkerboard situations, EPA has allowed certain tribes to enforce environmental laws against nonmembers.93 However, Brendale places new limits on EPA's decisions concerning tribal territorial powers. Duro suggests limits on tribal power to affect nonmember property rights.

A few reservation areas will fall into the "grey area": neither clearly open or closed. When one-half of either the land or population within a district is nonmember, the area is probably open under Brendale. When less than 10 percent of both land and population is nonmember, the area is probably closed. In those few districts that fall between these extremes, the Agency should strive to avoid jurisdictional decisions. Approaches EPA can take include referral to Congress, withholding action until the local parties agree, and mandatory mediation.94 EPA administration of local environmental programs should be a last resort.95

For all jurisdictional conflicts, EPA should actively encourage local solutions, which are the most positive development in Indian law. The Native American Rights Fund, the Western Governors Association, and the Conference of Western Attorneys General have held discussions on reserved water rights settlement issues for almost 10 years.96 Tribal advocates have opposed any generic nationwide solution to water rights issues. Most governors and state attorneys general have endorsed this ad hoc approach based on the uniqueness of each reservation. Tribes and states agree that the federal agencies often frustrate sensitive local negotiation.97 To be fully informed for its Indian environmental programs, EPA should thoroughly review these efforts to settle reserved water rights disputes.98

Trust Advocacy vs. Judicial Role

The current thrust of federal Indian policy is to encourage tribal self-determination.99 A broad effort is under way to remove oppressive federal bureaucracy and provide tribes with the benefits of local control. This presents difficult issues for federal agencies. Should an agency be an advocate for the tribes, or should it permit tribes to advocate their own interests? These questions need not arise for EPA, which is cast in the role of jurisdictional judge by the Indian provisions of environmental statutes.100 EPA should create internal control and appropriate staffing to ensure that its judicial role is perceived by all parties as fair, fact based, and consistent with the recent decisions [20 ELR 10437] of the Supreme Court.101 Other federal agencies can undertake any advocacy role.102

Involvement of State and Local Governments

In its judicial role, EPA must obtain complete information from all affected governments. There is serious question whether it is doing so now. For example, under the Federal Water Pollution Control Act, EPA plans to provide a 15-day notice and comment period to "appropriate governmental entities" when a tribe seeks "treatment as a state." The Agency has taken the position that "appropriate governmental entities" are only states and neighboring tribes. So far EPA has not considered counties, cities, and irrigation and other special districts to be appropriate entites.103 A 15-day comment period is far too short to coordinate a state response to complex and sensitive jurisdictional claims.

This approach to intergovernmental cooperation is hardly a foundation for making quasi-judicial determinations. For example, a municipal sewage facility (i.e., a publicly owned treatment work or POTW) may be within the scope of a tribe's application to be treated as a state. Currently, a POTW has no direct means to learn of the tribe's intention to assert jurisdiction over it, since tribal governments are not directly subject to the Federal Freedom of Information Act. While a POTW can learn through state public records acts of state actions that may affect it, tribes do not generally have public records acts that can be invoked by nonmembers. EPA can cure this political conflict by providing a reasonable period of notice with opportunity to respond and by notifying all political subdivisions within reservation boundaries. States can be relied upon to provide information to their political subdivisions that are outside the territorial boundaries of reservations.

Toward Rapid Improvement of Reservation Environments

Wisely applied, the Stevens analysis in Brendale could substantially resolve jurisdictional conflicts about environmental regulation on reservations. In rural reservation communities, human and natural environments are deeply intertwined. The fact-based approach suggested by Justice Stevens104 will produce cleaner reservation environments far more quickly than case-by-case litigation based on a monolithic nationwide doctrine. Neither the internal doctrine nor the territorial doctrine is appropriate for the complex facts of all reservations.

Ultimately, the success of Justice Stevens' new approach to Indian policy will depend on the goodwill and dedication of the tribes and their neighbors. Arguments over jurisdiction before a federal agency do not encourage local goodwill. Justice Stevens' approach offers EPA an opportunity to deal with these difficult conflicts in a factual manner. By developing a factual focus on the natural resources, the population, and landholding of each reservation, EPA can make the greatest contribution to improving the reservation environment.

1. __ U.S. __, 109 S. Ct. 2994 (1989).

2. Opinion and dissent of Justice White, id. at 2996-3009.

3. Concurrence and dissent of Justice Blackmun, id. at 3017-27.

4. In effect, Justices Stevens and O'Connor set forth the holding of the court in Brendale, although their opinion announced the judgment of the Court only for the closed area of the reservation. See discussion at infra notes 24-43 and accompanying text.

As EPA reviews its Indian programs, the "internal" and "territorial" doctrines will be urged on it.5 Although Brendale involved tribal and county powers over land use, its analysis will be applied by the Supreme Court to environmental regulation as well. Particularly in light of the recent decision in Duro v. Reina,6 which curtails tribal criminal powers over nonmembers,7 it is clear that Justice Stevens had played a central role in articulating a third new approach to tribal authority over nonmembers. After reviewing the two doctrines and Brendale, this Article suggests how EPA should implement Justice Stevens' factual approach.

5. See discussion of EPA Indian policy, at infra notes 64-103 and accompanying text. The EPA Office of General Counsel has recently initiated a review of the implications of Brendale. At least tentatively, the Office of General Counsel has adopted the territorial view. See Speech by EPA General Counsel E. Donald Elliott to Conference of Western Attorneys General, Durango, Colorado (Aug. 3, 1990).

6. 58 U.S.L.W. 4634 (May 29, 1990).

7. This Article uses the term "nonmember" rather than "non-Indian." On some reservations, resident nonmember "Indians" are present. Such nonmember Indians cannot belong to the tribe because they lack the required quantum of tribal blood (usually 25 percent). After Duro, legal distinctions between "nonmembers" and "non-Indians" have been largely removed. See discussion of Duro, infra notes 44-76 and accompanying text.

Both the internal and the territorial views of tribal power conflict with some aspects of the complex facts of modern Indian reservation life.8 The internal doctrine is inconsistent [20 ELR 10430] with tribal self-governance on traditional reservations, such as Mescalero or Hopi.9 On these reservations, the dominant Indian culture may conflict with non-Indian concepts of governance. For example, some Pueblos maintain a theocracy. These reservations have few nonmembers and minimal fee lands. The tribes maintain a uniquely Indian culture and economy.

8. Concerning the diversity of Indian reservations and the vacillations of federal Indian policy, see F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 47-204 (1982). There have been three editions of "Cohen's" Handbook (in 1942, 1958, and 1982), each reflecting different views of tribal powers. The 1982 edition advocates the territorial doctrine. Hereafter the Handbook will be cited by the year of the edition (e.g., 1982 COHEN). For further background on Indian policy, see D. GETCHES & C. WILKINSON, CASES AND MATERIALS ON FEDERAL INDIAN LAW 133-60 (1986); P. SLY, RESERVED WATER RIGHTS SETTLEMENT MANUAL 3-12 (1988); T. TAYLOR, THE BUREAU OF INDIAN AFFAIRS (1984).

9. Based on 1980 population statistics, most areas of the following reservations would probably be "closed" under Brendale: Acoma Pueblo, Fort Apache, Fort Belknap, Fort McDowell, Gila River, Havasupai, Hopi, Hualapai, Isleta Pueblo, Jicarilla, Laguna Pueblo, Menominee, Mescalero, Mississippi Choctaw, Navajo, Northern Cheyenne, Papago, Pine Ridge, Pyramid Lake, Red Lake, Rocky Boy's, St. Regis Mohawk, San Carlos, Santo Domingo Pueblo, Tesuque Pueblo, Turtle Mountain, Ute Mountain Ute, Walker River, Warm Springs, and Zuni.

Conversely, the territorial doctrine is inconsistent with the demography of certain reservations where the United States invited nonmembers to settle during the Dawes Act period.10 Subsequent vacillations in federal Indian policy and law have fractured Dawes Act rural communities, resulting in checkerboard landholdings of interspersed tribal trust lands and nonmember fee lands.11 Significant portions of the Dawes Act reservations are populated primarily by nonmembers who own fee lands free of any federal trust restrictions for Indians. These areas are often indistinguishable from other non-Indian communities. The resultant polarization between tribes and nonmembers conflicts with the comprehensive, holistic approach needed for environmental management.

10. The Dawes Act is codified at 25 U.S.C. §§ 476, 477, and other sections. The Dawes Act allotted land to individual Indians. Congress passed specific statutes that "opened" many reservations to nonmember settlement in the early 1900s. See, e.g., Act of April 23, 1904, 33 Stat. 302 (Flathead Reservation). The larger opened reservations include Chippewa, Coeur d'Alene, Flathead, Fort Yuma, Isabella, L'Anse, Leech Lake, Muckleshoot, Nez Perce, Omaha, Oneida, Osage, San Juan Pueblo, Santa Clara Pueblo, Sisseton, Southern Ute, Swinomish,Tulalip, Uintah and Ouray, Umatilla, White Earth, Wind River, Yakima, and Yankton. However, portions of these reservations may be closed. See Brendale, 109 S. Ct. at 3012-15 (Stevens, J., discussing Yakima closed area). Similarly, the Hill Creek Extension, a portion of the Uintah and Ouray reservations, would be considered closed under Brendale.

11. The "checkerboard" arises from interspersed 40-80 acre parcels in trust and fee ownership. See Seymour v. Superintendent, 368 U.S. 351, 358 (1962); see also Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 478-89 (1975).

A strictly doctrinal approach to the complex facts of Indian reservation life has contributed to the explosion in Indian litigation that has occurred in the past 20 years.12 Given the factual diversity of reservations, each environmental program on each reservation can potentially be litigated all the way to the Supreme Court if a uniform doctrine is applied. Justice Stevens' approach offers a means to avoid this result.

12. Since 1970, the Supreme Court has issued more Indian law decisions than in the combined fields of consumer and antitrust law.

Indian Doctrine and the Facts of Reservation Settlement

The Two Doctrines: Internal vs. Territorial Power

In the past 20 years, court decisions and strong advocacy on behalf of the tribes have developed the territorial view of tribal powers.13 Under this view, a tribe may regulate not only its members and trust lands, but all land within the reservation,14 including that owned by nonmembers. Federal policies and judicial opinions from the first half of the 19th century, when Indian reservations and states were mutually exclusive, developed this view.15 For the first 50 years of U.S. history, only federal agents and licensed Indian traders were legally authorized to be on reservations. Tribes could exclude nonmembers from the reservation. Under the territorial doctrine, broad tribal power over the entire reservation avoids the problem of "checkerboard" jurisdiction based on land ownership.16

13. For a thoughtful statement of this view, see C. WILKINSON, AMERICAN INDIANS, TIME & THE LAW (1987). For an application of this view to EPA's programs, see Goeppele, Solutions for Uneasy Neighbors; Regulating the Reservation Environment After Brendale, 65 WASH. L. REV. 417 (1990); see also Royster & Fausett, Control of the Reservation Environment: Tribal Primacy, Federal Delegation and the Limits of State Intrusion, 64 WASH. L. REV. 581 (1989). The territorial view of tribal power is also set forth in 1982 COHEN, supra note 8, at 252-57. The 1958 COHEN, id., takes a more limited view of tribal powers.

14. Some of the Court's cases concerning disestablishment of reservations adopt this view as well. See, e.g., Mattz v. Arnett, 412 U.S. 481 (1973); Seymour, 368 U.S. 351. However, the most recent disestablishment cases rely heavily on factual patterns of settlement. See, e.g., Solem v. Bartlett, 465 U.S. 463, 471 n.12 (1984).

15. The tribal power to exclude is the basis for territorial jurisdiction. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). This view was also expressed in federal executive policies adopted pursuant to the Indian Reorganization Act, 25 U.S.C. § 461 et seq. See Powers of Indian Tribes, 55 I.D. 14, 50 (1934) (Interior Solicitor's Opinion). The criminal "Indian country" statute, 25 U.S.C. § 1151, has been argued to apply to civil jurisdiction questions. See DeCouteau v. District County Court, 420 U.S. 425, 427 n.2 (1975).

16. It also avoids treating tribal government as a "private voluntary organization" like a country club. See United States v. Mazurie, 419 U.S. 544 (1975).

17. In the first Indian case in the U.S. Supreme Court, Justice Johnson's concurrence noted that Indian tribes have lost "any right to governing every person within their limits except themselves." Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 147 (1810). The modern statement of this view is in Duro, 58 U.S.L.W. 4634.

18. For a discussion of the Dawes Act, see Montana v. United States, 450 U.S. 544 (1981). Many reservations were opened to nonmember settlement by specific statute.

19. For example, the towns of Palm Springs, California; Polson, Montana; Roosevelt, Utah; and Toppenish, Washington are nonmember communities located within the exterior boundaries of Indian reservations.

20. The Dawes Act reservations are fertile organizing grounds for those seeking federal legislation to curtail special Indian rights. Groups such as All Citizens Equal or Citizens Equal Rights Alliance invoke the rhetoric of the Boston Tea Party (taxation without representation), the Declaration of Independence (consent of the governed), the Gettysburg Address (equal protection without regard to race), and the Constitution (due process of law). These groups find a ready audience when tribes assert broad territorial or off-reservation claims that affect nonmember property.

21. Enrollment in the tribe is based on blood quantum. On Dawes Act reservations, intermarriage has diluted Indian blood in many families. Thus, each successive generation faces the issue of blood quantum required for tribal membership. In Morton v. Mancari, 417 U.S. 535 (1974), the Court held that the racial classifications in Bureau of Indian Affairs (BIA) employment laws were "directed to participation by the governed in the governing agency [BIA] . . . . As long as special treatment can be tied rationally to fulfillment of Congress' unique obligation towards the Indians, such legislative judgments will not be disturbed." Id. at 554. Thus, "Indian" classifications are often upheld.

22. State attorneys general must defend litigation brought by tribes against the state. States generally cannot initiate suit because of tribal sovereign immunity. Many attorneys general seek routes to compromise. See P. SLY, supra note 8, at xiii-xvi (Introduction by Idaho Attorney General Jim Jones, Chair, Conference of Western Attorneys General); see infra notes 96-98.

23. One way or another, local governments within reservation boundaries must work with the tribes. Off-reservation local entities affected by tribal off-reservation claims take a stronger view. In January 1990, the Wisconsin Association of Counties organized the National Coalition on Federal Indian Policy in Salt Lake City. See 52 Wisconsin Counties 4-27 (Mar. 1990). In Washington State, initiative 456 on the 1984 statewide ballot sought to curtail tribal off-reservation fishing rights.

24. The Dawes Act reservations have specific statutes that explicitly "open" the reservation to nonmember settlement. See supra n. 10. However, the use of the contrasting term "closed" to describe the tribal area was developed by Interior for the Yakima reservation and was first applied by the Court in Brendale.

25. 109 S. Ct. at 3018.

26. Id. at 3022.

27. Id. at 3027 n.9.

28. Compare id. at 3000 n.2 and 3004-05 (White opinion) with id. 3024-26 and 3027 n.10 (Blackmun opinion). Justice Blackmun was more comfortable with Justice White's internal sovereignty approach than with the innovation suggested by Justice Stevens. Id. at 3025.

29. Even Justice Blackmun would apparently join in the internal view of tribal powers for incorporated towns of mostly nonmember population. See Brendale, 109 S. Ct. at 3027 n.9. Justice Blackmun voted with the seven to two majority in Duro, 58 U.S.L.W. 4634.

30. E.g., National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845 (1987); see also Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) [hereafter Washington Fishing Vessel Association].

31. Cotton Petroleum Corp. v. New Mexico, 492 U.S. __, 109 S. Ct. 1698 (1989); South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986); Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985); Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985).

32. Washington Fishing Vessel Association, 443 U.S. 658. The decision upheld tribal treaty rights to take fish at usual and accustomed places off the reservation and ordered the state to comply with the orders of lower federal courts. See id. at 692 n.32. The opinion limited the Indian right to that necessary to support a moderate standard of living, no more. Id. at 686.

33. 455 U.S. 130, 159 (1982) (dissenting from the Court's holding that tribal power of self-government includes the power to impose a tax on nonmember lessees after the lease had been signed). The dissent notes that "tribal powers over nonmembers are appropriately limited because nonmembers are foreclosed from participation in tribal government." Id.

34. 58 U.S.L.W. 4643 (see discussion at infra note 44-63 and accompanying text). Other Stevens dissents include County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 255 (1985), and Mississippi Band of Choctaw v. Holyfield, __ U.S. __, 109 S. Ct. 1597, 1611 (1989). Stevens' concurrences include Iowa Mut. Ins. Co v. LaPlante, 480 U.S. 9, 20 (1987), and Montana v. United States, 450 U.S. 544, 567 (1981).

35. Mississippi Band of Choctaw (dissent), Cotton Petroleum Corp. v. New Mexico (opinion), and Brendale (opinion and concurrence).

36. Wyoming v. United States, 753 P.2d 76 (Wyo. 1988), aff'd by an equally divided Court, 109 S. Ct. 2994 (1989). In the oral argument, five Justices, including Justice O'Connor (but not Justice Stevens) expressed misgivings about the application of reserved water rights doctrine by the Wyoming Supreme Court. See Transcript of Oral Argument (Apr. 25, 1989). After argument, the Court announced, per curiam: "The judgment below is affirmed by an equally divided Court. Justice O'Connor took no part in the decision of this case." 109 S. Ct. at 2994.

There has been much speculation about Justice O'Connor's withdrawal after vigorous participation in oral argument. However, it is clear from the transcript and the four to four vote that Justice Stevens supported affirmance. On Wyoming, see Abrams, The Big Horn Indian Water Rights Adjudication: A Battle for the Legal Imagination, 43 OKLA. L. REV. 71 (1990); Chambers, Indian Water Rights After the Wyoming Decision, 1989 HARV. INDIAN L. 153 (1989); Rusinek, A Preview of Coming Attractions: Wyoming v. United States and the Reserved Rights Doctrine, 17 ECOLOGY L.Q. 355 (1990); Franks, The Uses of the Practicably Irri gable Acreage Standard in the Quantification of Reserved Water Rights, __ NAT. RES. J. __ (1990, forthcoming); Williams, Indian Winters Water Rights Administration: Averting New War, __ PUB. LAND L. REV. __ (1990, forthcoming).

37. 450 U.S. 544 (1981).

38. Id. at 560 n.9.

39. Merrion, 455 U.S. 130. But see Duro, 58 U.S.L.W. 4643.

40. 450 U.S. at 567.

41. For the closed area of the Yakima reservation, only the landowner, Phillip Brendale, challenged tribal powers in the Supreme Court. Because Yakima County did not petition for certiorari concerning the closed portion of the reservation, the question of county concurrent jurisdiction in the closed area was not before the Court. Congress has authorized states to enter trust lands to inspect and enforce health laws. 25 U.S.C. § 231; see 1982 COHEN, supra note 8, at 377-78.

42. See, e.g., Confederated Tribes & Bands of the Yakima Indian Nation v. Whiteside, 828 F.2d 529 (9th Cir. 1987), rev'd in Brendale; Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir.), cert. denied, 455 U.S. 977 (1982); Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.), cert. denied, 459 U.S. 967 (1982). A recent tax case suggests that the Ninth Circuit may now be moving away from the territorial doctrine. Confederated Tribes of Yakima Nation v. County of Yakima, 893 F.2d 1094 (9th Cir. 1990). But see FMC v. Shoshone-Bannock Tribes, No. 89-35349 (9th Cir. June 18, 1990). petition for reh'g pending.

43. Montana's second exception has been argued to support tribal territorial jurisdiction if the activity has an impact on the "health" of the tribe. See Gover & Walker, Tribal Environmental Regulation, 36 FED. B. NEWS & J. 431 (1989). However, Montana's exceptions apply only in the absence of statute. Congress has authorized states to inspect and enforce health and sanitation regulations on Indian trust lands. 25 U.S.C. § 231. In light of potential state power over health enforcement on trust lands, it would make little sense to award tribes health enforcement over nonmember lands. See also infra note 78.

44. 58 U.S.L.W. 4643.

45. Merrion, 455 U.S. at 172-73.

46. 58 U.S.L.W. at 4648 (citation omitted).

47. Talton v. Mayes, 163 U.S. 376 (1896); see also Duro, 58 U.S.L.W. at 4647. An argument has been made that the Tenth Amendment embodies the principle that ultimate sovereignty is granted by the people and not by their governments. See Amar, Of Sovereignty and Federalism, 6 YALE L.J. 1425 (1987).

48. See discussion in C. WILKINSON, supra note 13, at 111-13.

49. 25 U.S.C. §§ 1301-1303.

50. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

51. Duro allegedly killed a 14-year-old boy. However, tribal criminal powers are limited to misdemeanors. Duro, 58 U.S.L.W. at 4644 n.2; Indian Civil Rights Act, 25 U.S.C. § 1301-1303. See generally 1982 COHEN, supra note 8, at 666-70.

52. Actual bias in tribal prosecutions of nonmember Indians is a concern on some reservations. See Greywater v. Joshua, 846 F.2d 486 (8th Cir. 1988). On some reservations, tribes with ancestral differences share reservation territory; suchtribes do not always agree on resource management. See, e.g., Northern Arapahoe v. Hodel, 808 F.2d 741 (10th Cir. 1987).

53. 435 U.S. 191 (1978).

54. 58 U.S.L.W. at 4645 (citing Oliphant, 435 U.S. at 326).

55. Id. at 4647.

56. The Court limited the holding of United States v. Mazurie, 419 U.S. 544 (1975), noting: "We have approved delegation to an Indian tribe of the authority to promulgate rules that may be enforced by criminal sanction in federal court [citing Mazurie] but no delegation of authority to a tribe has to date included the power to punish nonmembers in tribal court." 58 U.S.L.W. at 4648 (emphasis in original).

57. See, e.g., Treatment of Indian Tribes as States for Purposes of Section 404 of the Clean Water Act, 54 Fed. Reg. 49180 (Nov. 29, 1989) (proposed rules); see also Holly v. Totus, 655 F. Supp. 557 (E.D. Wash. 1985), aff'd without opinion, 812 F.2d 714 (9th Cir. 1987), cert. denied, 108 S. Ct. 85 (1987) (no inherent tribal power to adopt water code regulating nonmember water use).

58. To be sure, states are required to protect demonstrably serious impacts on tribal trust interests. See Brendale, 109 S. Ct. at 300 (White, J., opinion).

59. 58 U.S.L.W. at 4648-49.

60. Consensual enforcement agreements between states and tribes may also be used by EPA. See discussion at infra notes 96-98 and accompanying text.

61. See discussion at infra notes 77-98 and accompanying text. The "Bracker" test, has been applied to determine the extent of state authority on Indian reservations. White Mountain Apache v. Bracker, 448 U.S. 136 (1980). This test involves a weighing of the relative interests of the three governments — federal, state, and tribal — against the "backdrop" of "notions of tribal sovereignty." Under Bracker, state authority may be concurrent with tribal and federal environmental jurisdiction. Advocates of broad territorial jurisdiction doctrine endorse the Bracker test, because two out of three interests (tribal and federal) generally oppose state jurisdiction. Bracker has proved difficult to apply with predictable results and represents the "doctrinal" approach that will lead to case-by-case litigation.

62. See discussion of environmental "takings" at infra notes 71-76 and accompanying text.

63. Although the extent to which Duro applies in the civil context is unclear, and the Court expressly disclaimed any such application, the Court has frequently imported criminal jurisdiction concepts into the civil arena. See, e.g., Montana v. United States, 450 U.S. 544, 565 (1981) (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).

64. The single Indian jurisdiction case filed against EPA since Brendale was recently dismissed. South Dakota v. EPA, No. 89-2772 (8th Cir. May 23, 1990), dismissed by stipulation. The state had challenged EPA's award of a Safe Drinking Water Act planning grant to the Standing Rock Sioux Tribe. Nonmember municipal treatment plants were within the scope of the tribe's application. When EPA clarified that the grant of funds did not include a determination of tribal permitting powers over nonmembers, the state dismissed the suit as unripe.

65. Environmental Protection Agency, Policy for the Administration of Environmental Programs on Indian Reservations (Nov. 8, 1984). This policy was affirmed by Administrator Reilly; however, the Brendale analysis discussed herein was not referenced by Reilly. See Memorandum From Reilly, Administrator to Assistant Administrators et al. (Feb. 7, 1990).

66. Id. at 2 (emphasis added). EPA could construe "reservation populace" to encompass only tribal members. If so, revision of this part of the 1984 policy may not be necessary.

67. Id. (emphasis added).

68. Id. at 3. This policy is unobjectionable if interpreted to apply only to trust lands. However, if interpreted to mean that EPA will act only for the benefit of the tribes and tribal territorial jurisdiction on open reservations, it compromises EPA's role as a "judge" of respective state and tribal territorial jurisdiction. See discussion infra notes 99-102 and accompanying text.

69. E.g., Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir.), cert. denied, 459 U.S. 977 (1982); Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.), cert denied, 459 U.S. 967 (1982). In Namen, Justice Rehnquist (joined by Justice White) took the unusual step of publishing a dissent from the denial of certiorari. See also City of Polson v. Confererated Salish & Kootenai Tribes, 459 U.S. 977 (1982).

70. EPA has awarded planning grants under § 106 of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, 1287, ELR STAT. FWPCA 001, 007, primarily to tribes on open reservations. See Sly, Clean Water, Unclean Law, in 1 RIVERS 183, 184table 1 (1990); Environmental Protection Agency, Office of Water, Section 518 Approvals as of March 20, 1990.

71. See U.S.C. § 1302, which provides in pertinent part: "No Indian tribe . . . shall — . . . (5) take any private property for public use without just compensation." See also Nollan v. California Coastal Comm'n, __ U.S. __, 107 S. Ct. 3141, (1987). Some nonmembers on open reservations believe that tribes will use harsh environmental regulation to "undo the Dawes Act" by reducing land values to reacquire fee lands. See supra note 21. Whether or not this perception has validity, it is fostered when EPA approves tribal regulatory authority over nonmembers. On regulatory taking of water rights, see Fallini v. Hodel, 725 F. Supp. 1113 (D. Nev. 1990).

72. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

73. Under the "Tucker Act," monetary claims can be filed against the federal government. See ch. 359, 24 Stat. 505 (Mar. 3, 1887). The Tucker Act is codified in various sections of Title 28, including §§ 507 and 1346.

74. See Exec. Order No. 12,630, 53 Fed. Reg. 8859 (Mar. 18, 1988) (Government Actions and Interference With Constitutionally Protected Property Rights).

75. The Court has applied Indian policies from criminal cases to the civil arena. See Montana, 450 U.S. at 565, relying on Oliphant, 435 U.S. 191. United States v. Wheeler, 435 U.S. 31 (1978), is also frequently applied in the civil context. At least part four of the Duro opinion concerning constitutional rights of nonmember citizens applies in the environmental regulation context.

76. Hodel v. Irving, 107 S. Ct. 2076 (1987).

77. See Safe Drinking Water Act § 1451, 42 U.S.C. § 300j-11, ELR STAT. SDWA 021; Water Quality Act of 1987, Pub. L. No. 100-4, § 506(e); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9626, ELR STAT. CERCLA 061; Clean Air Act § 164, 42 U.S.C. § 7474, ELR STAT. CAA 025. On the Federal Water Pollution Control Act (FWPCA), see, e.g., Sly, supra note 70. The FWPCA's legislative history does not support tribal territorial jurisdiction over open areas. See Letter from Sen. Max Baucus (D-Mt.) to William K. Reilly, EPA Administrator (May 3, 1990); Letter from Rep. Sid Morrison (R-Wash.) to William K. Reilly (May 10, 1990). But see dicta in Justice White's Brendale opinion, 109 S. Ct. at 3006-07.

78. See, e.g., Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39098, 39101 (Sept. 22, 1989) (proposed rule); Letter from Lawrence Jensen, EPA General Counsel, to Oregon Attorney General David Frohnmayer (Sept. 9, 1988).

79. For example, the Clean Water Act provides that a tribe may be treated as a state only if: "The Indian Tribe has a governing body carrying out substantial governmental duties and powers." 33 U.S.C. § 1377(e)(1). With respect to nonmember citizens, it could be argued that an Indian tribe cannot have "substantial governmental duties and powers," since tribes lack consent of the governed that part four of the Duro decision requires as the basis for political power.

80. To avoid ad hoc decisionmaking, and the problems of a "slippery slope" in mapping complex landholdings, EPA should use existing boundaries of districts and municipalities to define areas for classification as open or closed. See discussion at infra notes 83-85 and accompanying text. Some modification may be required over time as landholding and resident populations evolve. However, to avoid gerrymandering, the initial classification should be the date of Brendale. Counties should generally not be used as classification units because they include too much land for useful classification.

81. This information is readily available from both the Department of the Interior and the tribes. See U.S. DEPARTMENT OF THE INTERIOR, LANDS UNDER JURISDICTION OF THE BUREAU OF INDIAN AFFAIRS (annual reports). In addition, maps identifying land by ownership status are available. See, e.g., U.S. Department of Interior, Bureau of Indian Affairs, Flathead Indian Reservation, Land Status — 1988 (four-color map).

82. While there may be some difficulty correlating population statistics with district boundaries, general census population statistics are kept by reservation area and by zip code. Rough approximations will be sufficient for the majority of reservation areas.

83. See list of reservations in supra note 9.

84. The Interior Department has self-determination contract programs that can assist tribes with environmental enforcement for trust lands within closed reservation areas. See, e.g., 25 U.S.C. §§ 450a et seq. Total grants to tribes under self-determination programs amounted to almost $ 400 million in FY 1989. Bureau of Indian Affairs, Report to Congress on Direct and Indirect Costs Associated With Contracting and as Required by P.L. 100-472, Section 106(c) (May 15, 1990). Some of these grant funds may be available to assist tribes in establishing environmental programs. However, to the extent that "self-determination" funds establish tribal regulatory programs affecting nonmember lands and assets, the Brendale and Duro analysis of this Article applies to Interior as well as to EPA.

85. Although the focus of this Article is on EPA actions, Congress could assist by increasing funding for tribal governments for closed reservation areas. Funds are required to allow tribes to establish programs equivalent to those of the states. The states received federal support to expand their environmental enforcement capabilities in the early 1970s.

86. See United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984) (state, not tribe, has primary jurisdiction over nonmember use of excess waters on fee lands adjacent to boundary stream).

87. In cooperation with the state, local districts may obtain authority for non-point-source water quality programs. See 33 U.S.C. § 1310 (non-point-source-pollution programs). Irrigation districts on open reservations in Montana and Utah are pursuing such efforts.

88. Cf. Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587 (9th Cir. 1983).

89. Cf. Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989); see also P. SLY, supra note 8, at 63 & nn.20-22.

90. Off-reservation tribal proprietary claims to hunt and fish have provoked a strong response from nonmembers. See Holmstrom, Legal Uprising Over Indians, Christian Sci. Monitor, Jan. 25, 1990, reprinted in Wisconsin Counties, supra note 23. EPA should review the history of off-reservation proprietary claims before authorizing tribal off-reservation regulatory claims. For example, on the Truckee River, eight decades of litigation concerning proprietary water rights may now be close to legislative settlement. See S. 1554, 101 Cong., 2d Sess. (1990). Tribal regulatory off-reservation water quality claims may rekindle disputes among the same parties.

91. See list of reservations with open areas supra note 10.

92. Washington Dep't of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985); see Allen, Who Should Control Hazardous Waste on Native American Lands? Looking Beyond Department of Ecology v. EPA, 14 ECOLOGY L.Q. 69 (1987); see also Phillips Petroleum v. EPA, 803 F.2d 545 (10th Cir. 1986). But see supra note 43.

93. Nance v. EPA, 645 F.2d 701 (9th Cir.), cert denied, 454 U.S. 1081 (1981); see 40 C.F.R. § 171.10 (authorizing tribes to develop certification programs when the statute provides that "states" may submit certification plans).

94. Under the Clean Water Act, EPA has been directed to establish dispute resolution mechanisms to avoid unreasonable consequences that may arise as a result of differing state and tribal water quality standards. See 33 U.S.C. § 1377(e) (1987).

95. EPA has published federal water quality standards for the Colville Reservation. See 54 Fed. Reg. 28622 (July 6, 1989).

96. These discussions have been tied to a number of recent major settlements of reserved water rights litigation. See generally P. SLY, supra note 8.

97. See Indian Water Policy: Hearings on S. 101-142 Before Select Comm. on Indian Affairs, 101st Cong., 1st Sess (Apr. 6, 1989).

98. See J. FOLK-WILLIAMS, WHAT INDIAN WATER MEANS TO THE WEST (1982); see P. SLY, surpa note 8 (1988); Folk-Williams, The Use of Negotiated Agreements to Resolve Water Disputes Involving Indian Rights, 28 NAT. RES. J. 63 (1988). As of this writing, EPA has consulted with neither the Department of the Interior nor the Department of Justice concerning the implications of Brendale for EPA's programs. The Agency has tentatively adopted the territorial view of tribal powers, based on a presumption that any environmental impact on trust lands triggers Montana's second exception. See supra notes 13-43. This reading of Montana swallows the rule of the case and now represents the view of only two members of the Supreme Court. See discussion at supra notes 41-43 and accompanying text.

99. See, e.g., S. 2512, 101 Cong., 2d Sess. (1990) (DeConcini, MCCain, Daschle, D-Az.)(New Federalsim for American Indians Act of 1990), reprinted at 1990 CONG. REC. 5002 (Apr. 25, 1990).

100. In Chevron v. NRDC, 467 U.S. 837 (1984), the Court gave great deference to EPA's expertise in environmental matters. EPA lacks such expertise in Indian matters and should be subject to closer review. Unless EPA's Indian jurisdictional decisions are factually based, there should be no judicial deference under Chevron.

101. Both states and tribes have expressed concerns about EPA's understanding of Indian issues. Compare Speech by Kevin Gover (tribal advocate) to Federal Bar Association Indian Law Conference, in Albuquerque, New Mexico, (Mar. 30, 1990) with Speech by Louis Rose (New Mexico Deputy Attorney General)(same conference).

102. On September 5, 1989, EPA and the Department of the Interior executed a memorandum of understanding concerning consultation under the Clean Water Act. This agreement identifies EPA as the decisionmaker on Indian environmental issues, subject to consultation with the Department of the Interior. Tribes have also considered legislation to establish a separate federal trust authority with responsibility to advocate tribal interests.

103. See Letter from LaJuana Wilcher, EPA Administrator for Water, to Alan Mikkelsen, Flathead Joint Board of Control (May 17, 1990).

104. In the Indian arena, the Supreme Court acts not only as court of last resort, but also as policymaker of last resort. Tribal advocates and their opponents agree that the Court plays this policy role. Compare C. WILKINSON, surpa note 13, with Vetter, The Four Decisions in Three Affiliated Tribes and Preemption by Policy, 23 LAND & WATER L. REV. 43 (1988).

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