The Turtle Mountain Band of Chippewa Indians recently passed a resolution banning fracking on reservation lands. Fracking is incredibly dangerous to the environment (and if Elizabeth Kolbert is writing about it, you can be sure it’s worse than that).
So imagine a scenario where a tribe (like Turtle Mountain) bans fracking, but an oil extraction company purchases fee land within the reservation boundaries and begins fracking. Is this going to pass the Montana test, assuming no written consent under Montana 1? So does it meet the political integrity, economic security, and health/welfare subjectivity of Montana 2? It seems like it must, if this news coverage is to be believed:
Exploration companies are injecting large volumes of water, sand and chemicals into rock formations up to a mile beneath the Blackfeet Indian Reservation in attempts to loosen embedded oil — sometimes using more than a million gallons of fluid per well.
State, tribal and federal regulators of oil development say there has never been an instance of the practice — called hydraulic fracturing — contaminating groundwater in Montana.
Yet Jack Gladstone, an enrolled member of the Blackfeet Tribe and a well-known singer and songwriter, is worried that “fracking” could taint the tribe’s “clean, fresh, cold water.”
He supports more disclosure of the chemicals used in the frack jobs, which he described as an “uncontrolled experiment.”
“And we will live with the consequences of our actions,” Gladstone said.
Potential impacts to drinking water associated with hydraulic fracturing are coming under increased scrutiny nationwide as the federal Environmental Protection Agency begins a study at 350 oil and gas wells in Louisiana, Pennsylvania, North Dakota, Texas and Colorado.
So back to Montana 2. Assuming the above conditions, and a court concludes that Montana 2 is met, and tribal jurisdiction over these hypothetical nonmembers is present, what are the limitations on tribal jurisdiction? Could a tribe simply enjoin the operation (a regulatory/judicial taking)? Could a tribe exercise the power of eminent domain? Seems like these are questions tribes should be asking.
Turtle Talk 
Those assumptions are currently under review by the EPA and, I believe, the Department of Energy. It’s possible that regulatory authorities will conclude that fracking is a safe and sustainable method of extraction, if done properly.
Fracking is an issue faced by many First Nations in Canada as well – First Nations which don’t have the benefit of the Montana test (but have the benefit of other legal levers, such as the duty to consult and accommodate). There was just a protest by St. Mary’s First Nation at the New Brunswick legislature about fracking last week (Nov. 23).
The Turtle Mountain Band also holds land in trust in Montana. News reports indicate reservation lands. Turtle Mountain lands in Montana are also most certainly convered.
Some places are to be untouched. Climate changes, environment changes, it ought to teach us something.
And Gladstone is right, we will live with the consequences of our actions.
It is a good thing Environmental Protection Agency does something about it.