Elizabeth Kronk Warner has posted “Tribes as Innovative Environmental ‘Laboratories‘” on SSRN.

Here is the abstract:

Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over 56 million acres that makes up Indian country. In this first scholarly work to address this aspect of tribal environmental law, this article advocates for the idea of tribes as “laboratories” for examining environmental regulation. Tribes enact environmental regulation by two primary means – in their capacity as “tribes as states” (TAS) and in their capacity as inherent sovereigns – both of which create unparalleled space for innovation. Moving first to the TAS setting, the article examines synergies between federal and tribal environmental law. Following an expansive discussion of laws adopted by several tribes under their TAS authority, the article next turns to a discussion of the implications of tribal environmental innovations. Here, the article begins by looking at the emerging trends in tribal adaptation of federal environmental law. The article turns next to a look at tribal environmental law adopted purely as a result of tribal inherent sovereignty. Here, the article begins the foundational discussion of how tribes may take lessons learned from the TAS setting and, by the exercise of inherent sovereignty, truly be innovators in the development of environmental law. The article then develops some initial thoughts of how tribes, the states and the federal government may benefit from innovations occurring within the tribal environmental laboratory. Tribal environmental law is particularly exciting given its ability to transcend federal environmental law. Ultimately, the article concludes that, by enacting environmental laws to meet their unique tribal needs, many tribes are creating and innovating in the field under their unique powers as separate sovereigns within the United States, truly acting as laboratories of the future.