Jane Kloeckner has posted her paper, “Hold on to Tribal Sovereignty: Establishing Tribal Pesticide Programs that Recognize Inherent Tribal Authority and Promote Federal/Tribal Partnerships,” on SSRN.
Here is the abstract:
The partnership between the United States and Indian Nations (tribes) in regulating pesticide pollution in Indian country and governed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Pesticide Law) has become dysfunctional due to weak provisions in FIFRA and pesticide regulations and guidance from the United States Environmental Protection Agency (EPA), the federal agency authorized to implement FIFIA. The tribal/federal partnership under FIFRA is overwhelmingly federal, while the role for tribal governments is limited. In addition, long-standing EPA policy choices have resulted in inadequate environmental protection against potential misuse of pesticides in Indian country. For example, EPA has not interpreted FIFRA as authorizing Tribal governments to be the primary enforcement authority. Except for eight Indian reservations, pesticide applicators cannot be certified in Indian country to apply restricted use pesticides. Tribal governments should be eligible to implement pesticide control programs as co-regulators in partnership with EPA. Co-regulator pesticide programs would be a good example of United States leadership in collaborative partnering with indigenous peoples for the broader international community.
The FIFRA reforms suggested in this paper recognize the appropriate level of federal oversight of tribal environmental decisions affecting land use involving pesticides, a local decision with regional, national and international aspects. For example, Tribal Pesticide Programs would function best within the structure of a genuine tribal/federal partnership as described in this paper. As a foundation for a collaborative partnership, EPA should provide for tribal governments to be eligible for primary enforcement under FIFRA in Indian country. Also, EPA should provide continuing federal assistance, technical, administrative, and financial to tribal governments for building and maintaining tribal pesticide programs as tribal institutions. Furthermore, the co-regulator partnership must be flexible and ultimately, the federal government must oversee the tribal pesticide programs because of the complexities of tribal governance over tribal environmental institutions and because local, state, regional, tribal and international concerns over pesticide use sometimes conflict. Inside or outside Indian country, FIFRA and its regulations must support minimum federal standards that protect human health and the environment and a level playing field for pesticide users.
Federal laws and regulations should support environmental institution building by tribal governments, distinguish the multi-dimensionality of Indian people and cultures, and acknowledge the value that Indian people place on land without limitations that stereotype individual Indians or tribal lifeways. Such things are the hallmark of a genuine federal/tribal partnership. If Congress and EPA would improve the FIFRA federal/tribal partnership by authorizing more tribal certification programs for restricted use pesticide applicators, such programs could enhance non-Indian cultures by teaching individuals, such as pesticide applicators, about diverse tribal lifeways, which would better protect human health, the land, and the environment in Indian country from pesticide exposures.
This paper concludes that the Federal government must encourage tolerance, diversity, and flexibility in our democracy. The traditions and cultures of the American Indian Nations can only survive within the borders of the United States because it is the location of their lands. The federal government has a trust responsibility to preserve these lands, cultures, traditions and environments. Governance of the environment is one of the best places for tribes to exercise inherent authority (as opposed to congressionally delegated federal authority) because, in general, but not always, tribal lifeways, cultural values and traditions are compatible with federal environmental laws. Recognizing broad authority of tribal governments to implement federal environmental programs, such as the FIFRA, where local control of pesticides with minimum federal oversight is a principle enshrined in this law, is one small way to support environmental institution building by tribal governments with flexibility for individual tribes to craft unique protections for their environment, land and tribal sovereignty.
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