tribal environmental law

Elizabeth Kronk Warner on Lessons from the Tribal Environmental Laboratory

Matthew L.M. Fletcher

Elizabeth Kronk Warner has posted “Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory” on SSRN. Here is the abstract:

Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the first article to examine how tribes are already innovating in areas of environmental law outside of tribal codes. The article begins with an examination of federalism and the benefits, such as states as laboratories, typically attributed to the system of federalism. Having provided an introduction, the article then explains how federalism itself is not required to achieve the benefits associated with it, arguing that tribal regulatory experimentation can yield similar results. Next, the article establishes the modern-day need for environmental regulatory experimentation given the lack of innovation occurring at the federal level. And, finally, the article takes a deep look into forms of tribal environmental law related to the regulation of environmental pollution and climate change other than code provisions. Such an examination is particularly helpful given the potential for governments to use such legal tools to fill existing regulatory gaps and the ease with which innovations in this field can be diffused amongst other governments. Having considered these other forms of tribal environmental laws, 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 and state environmental law. This section of the article then ends with a call for additional tribal environmental innovation within this area. 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.

Call for Papers – Indigenous Environmental Rights and Tribal Environmental Regulation

Matthew L.M. Fletcher

William Mitchell Law Review, Vol. 41, Issue 2 (Spring 2015)

The William Mitchell Law Review is dedicating an issue to environmental justice issues, with a focus on indigenous rights to land and natural resources. The issue will be published in March 2015. Confirmed article topics so far cover tribal groundwater rights, EPA jurisdiction over off-reservation Indian lands, and mechanisms for tribal adaptation to climate change. The law review invites submissions that would support this overall theme of indigenous environmental justice and tribal environmental regulation.

Founded in 1974, the William Mitchell Law Review publishes timely articles of regional, national and international interest for legal practitioners, scholars, and lawmakers. Judges throughout the United States regularly cite the Law Review in their opinions. Academic journals, textbooks, and treatises frequently cite the Law Review as well. Due to the rising prominence of William Mitchell’s Indian law program, the Law Review is increasingly becoming a resource for articles relevant to Indian country.

Submissions may take the form of short commentaries or full-length law review articles. If you are interested in submitting an article, please email your submission to melissa.lorentz@wmitchell.edu by Friday, September 12th.

Kronk Warner on Tribes as Environmental “Laboratories”

Matthew L.M. Fletcher1 Comment

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.

Elizabeth Warner on Tribal Environmental Law

Matthew L.M. Fletcher

Elizabeth Warner has posted “Examining Tribal Environmental Law” on SSRN. Here is the abstract:

Federal environmental law recently celebrated its 40th birthday and much has been said about it in the past four decades. Today, however, little is said about the role the third sovereign, tribal nations, plays in the development of environmental law. Although some scholarship exists regarding the development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This article fills that vacuum by taking a first look at how tribal environmental law has developed and exploring the laws of one tribal nation that has enacted several environmental laws. The article also begins the discussion of what may be normative practices in the development of tribal environmental law.

Where the federal government has not pre-empted them, tribes may develop their own tribal environmental laws. The time has never been better for an examination of tribal environmental laws. From a historical perspective, Indian country has been the location of substantial environmental contamination. Today, Indian country possesses a substantial potential for natural resource development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), may spur development of tribal environmental laws. To take advantage of “streamlined” development provisions under both the TERA provisions and HEARTH Act, tribes must develop certain environmental review provisions. These factors in combination with the fact that the environment plays an important cultural and spiritual role for many tribal communities mean that now is an optimum time to consider tribal environmental law.

To start this important discussion on existing tribal environmental law, the article begins in Part II with an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. Next, in Part III, the article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. The article next describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted. This portion of the article concludes that a significant number of federally recognized tribes have no publically available tribal environmental laws. In light of this finding, Part V examines the existing laws of one tribal nation, the Navajo Nation, which has actively developed its tribal environmental laws. Moreover, Part V also begins the discussion of what may be norms for the development of tribal environmental law in the future. In this regard, this article establishes the foundation for the development of a robust examination of tribal environmental law.