American Indian Communities in Minnesota
Environmental Law on American Indian Reservations

Do state environmental laws apply on American Indian reservations?

To the extent that state law is "prohibitory" as opposed to "regulatory," it applies to American Indian reservations under the operation of Public Law No. 280, which provides Minnesota with the authority to enforce criminal and prohibitory law on American Indian reservations, with the exception of the Red Lake Reservation.⁽⁸⁰⁾ Whether individual environmental laws are prohibitory or regulatory is a complex question that is ultimately determined on a case-by-case basis by the courts. In California v. Cabazon Band of Mission Indians, the United States Supreme Court applied Public Law 280 to provide some guidance in making this determination:

[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub.L. 280's grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and does not authorize its enforcement on an Indian Reservation. The shorthand test is whether the conduct at issue violates the state's public policy.⁽⁸¹⁾

The Minnesota Supreme Court recently clarified when a state law should be considered "criminal" for the purposes of a Public Law 280 analysis, stating that it will use the following factors in making the determination:

(1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others;

(2) the extent to which the law allows for exceptions and exemptions;

(3) the blameworthiness of the actor; and

(4) the nature and severity of the potential penalties for a violation of the law.

This list is not meant to be exhaustive, and no single factor is dispositive.⁽⁸²⁾

Under this approach, Minnesota's environmental laws that use a permitting scheme to regulate certain types of polluting activity, such as air and water discharge permits, probably do not apply on American Indian reservations because they allow considerable exceptions and variations. On the other hand, Minnesota does have several environmental laws that place an absolute prohibition on certain activities. For example, state law prohibits the sale or use of certain pesticides (Minnesota Statutes, sections 18B.11 and 18B.115), placement of certain waste items in or on the land (Minnesota Statutes, sections 115A.904 (waste tires), 115A.915 (lead acid batteries), and 115A.916 (used motor oil)). These environmental laws may apply on American Indian reservations in Minnesota under the Public Law 280 analysis applied by the U.S. Supreme Court in Cabazon, because they place an outright ban on certain types of activity and provide criminal penalties.⁽⁸³⁾

Minnesota environmental laws that are generally regulatory and not criminal (i.e., permit certain activity but limit the amount or nature of such activity) could conceivably apply to regulate the activities of non-tribal individuals operating on tribal lands.⁽⁸⁴⁾

Do federal environmental laws apply to American Indian Reservations in Minnesota?

Federal environmental laws apply to American Indian reservations where Congress has specifically indicated that tribes are subject to particular laws.⁽⁸⁵⁾ Under the federal approach, "Where Congress clearly indicates that Indian tribes are subject to a given law, no tribal sovereignty exists to bar the reach or enforcement of that law."⁽⁸⁶⁾ For example, the Eighth Circuit Court of Appeals determined that the Resource Conservation and Recovery Act (RCRA) applied to the Oglala Sioux Tribe of Indians in South Dakota.⁽⁸⁷⁾ The court noted that Congress permitted a compliance lawsuit under RCRA to be brought against any "person," and that Congress defined "person" in RCRA to include municipalities, which was subsequently defined to include Indian tribes. The Eighth Circuit also determined that Congress placed exclusive jurisdiction for the enforcement of RCRA in the federal courts rather than requiring exhaustion of any remedies in tribal court before proceeding to federal court.⁽⁸⁸⁾

Who enforces federal environmental laws on Indian reservations?

Many federal environmental laws provide the U.S. Environmental Protection Agency (EPA) with the authority to approve tribal management of federal environmental programs, similar to the EPA's oversight and approval authority over state administration of these laws.⁽⁸⁹⁾ Where there is no EPA-approved program for tribal administration of a federal environmental law on an American Indian reservation, most such laws typically provide that the federal government has jurisdiction to enforce the law on the reservation.⁽⁹⁰⁾

Federal environmental laws which have been amended to permit the EPA to authorize tribal management of federal environmental programs include: the Safe Drinking Water Act (amended to permit authorization of tribal programs in 1986); the Clean Water Act (amended in 1987); and the Clean Air Act (amended in 1990).⁽⁹¹⁾ The EPA has also made several determinations that it has the discretion to allow tribal management of environmental programs under certain federal laws even though Congress has not specifically provided for tribal assumption of responsibility in the legislation. The EPA has determined that it has this authority under the Resource Conservation and Recovery Act and the Toxic Substance Control Act.⁽⁹²⁾

In addition, three other federal environmental laws enforced by the EPA provide for a limited tribal role similar to the role provided for states under these statutes. These laws include: the Federal Insecticide, Fungicide and Rodenticide Act, the Emergency Response and Community Right to Know Act, and the Comprehensive Environmental Recovery, Compensation and Liability Act (CERCLA).⁽⁹³⁾

Federal laws that authorize the EPA to approve tribal administration of environmental programs typically do so by providing the EPA the authority to grant "treatment-as-a-state" status to an individual tribe through the rulemaking process. "Treatment-as-a-state" status allows the tribe to administer the regulatory program under the federal law on the reservation in the same way states administer such programs on the statewide level. One example of legislation providing for "treatment-as-a-state" status is the Safe Drinking Water Act, which provides the criteria a tribe must satisfy to be granted this status:

(1) the American Indian tribe is recognized by the Secretary of the Interior and has a governing body carrying out substantial governmental duties and powers;

(2) the functions to be exercised by the American Indian tribe are within the area of the tribal government's jurisdiction; and

(3) the American Indian tribe is reasonably expected to be capable, in the EPA administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this subchapter and of all applicable regulations.⁽⁹⁴⁾

In addition to the application for "treatment-as-a-state" status, a tribe seeking to administer federal environmental law typically must make a program application to the EPA detailing the regulatory program it intends to implement, including the scope of jurisdiction the tribe seeks for the program.

The application can result in a jurisdictional battle between the applicant tribe and the state because the EPA must determine whether the tribe has jurisdiction to exercise civil authority over non-Indians who live on fee lands within American Indian reservations. To determine whether American Indian tribes have inherent power to regulate the conduct of non-Indians on reservation lands, the EPA has stated it will look to the analysis in Montana v. United States, 450 U.S. 544 (1981).⁽⁹⁵⁾ In that decision, the U.S. Supreme Court made an exception to the general rule that tribes do not possess regulatory authority over non-Indians within reservation boundaries, stating that a tribe may 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 integrity, the economic security or the health or welfare of the tribe."⁽⁹⁶⁾

In Montana and Wisconsin, litigation has resulted from the EPA's approval of tribal applications for "treatment-as-a-state" under the Water Quality Standards program.⁽⁹⁷⁾ In the Montana litigation, the federal 9th Circuit Court of Appeals upheld the EPA's approval of the application made by the Confederated Salish & Kootenai tribes for "treatment-as-a-state" status under the Water Quality Standards program.⁽⁹⁸⁾ In Wisconsin, the EPA approved the application of four tribes for "treatment-as-a-state" status under the Water Quality Standards program. The state then sued the EPA and subsequently presented evidence that reports justifying the EPA's decision were prepared after the decisions were made. The EPA subsequently withdrew the "treatment-as-a-state" decision for two of the four bands that had been approved and moved for dismissal of the lawsuits. The state of Wisconsin received a settlement payment in exchange for dismissal of its motion for sanctions.⁽⁹⁹⁾

One method of avoiding protracted litigation and controversial jurisdictional determinations by the EPA is for states and tribes to enter into cooperative agreements to jointly administer federal environmental programs on reservation lands. Historically, cooperative agreements have been easier to make when they are negotiated prior to an EPA determination of jurisdictional issues arising from granting "treatment-as-a-state" status. The Minnesota Pollution Control Agency and the Grand Portage Band of Chippewa recently used this approach and negotiated a cooperative agreement which was subsequently approved by the EPA. The agreement provides for the joint operation of a Water Quality Standards program within the waters of Lake Superior, where jurisdiction is disputed by the state and the Band. The agreement avoids a jurisdictional battle by a mutual reservation of rights that allows either party to request the EPA to determine the jurisdictional issue if the agreement breaks down in the future.⁽¹⁰⁰⁾

Numerous Minnesota tribes have applied for "treatment-as-a-state" status with respect to various federal environmental laws. Many tribes have been granted "treatment-as-a-state" status with respect to funding components of various statutes, while a few have received "treatment-as-a-state" status with respect to regulatory standards. No Minnesota tribe has yet implemented a regulatory program. The EPA has currently put the approval procedure for regulatory programs on hold while it revises those procedures.⁽¹⁰¹⁾ The table following this section shows the "treatment-as-a-state" status of individual Minnesota American Indian tribes under each of the federal environmental laws providing that status.

*The EPA uses cooperative agreements under section 23A of FIFRA, rather than the "Treatment as a State" designation.