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EPA case on tribal sovereignty attracts attention
Tuesday, June 7, 2005

An Oklahoma tribe's attempt to assert sovereignty on environmental matters is attracting attention, and generating concerns, among state officials, other tribes and members of Congress.

For the past seven years, the Pawnee Nation has been seeking the authority to regulate water within its territory. Under the Clean Water Act, Congress has recognized the right of tribes to develop and enforce their own standards.

Since 1998, when amendments to the law went into effect, only about 20 tribes have been granted "treatment as state" status. It's a long and complicated process that often draws objections from state officials, non-Indians and private interests.

The Pawnee Nation's case is no different. State officials are objecting to the tribe's request, key lawmakers are keeping a close eye on the debate and at least one tribe is worried tribal rights are in danger.

In November 2004, the U.S. Environmental Protection Agency gave its approval to the Pawnee Nation, concluding that the tribe "has demonstrated capability to implement the water quality standards" under the law. The EPA noted that the tribe's jurisdiction is limited to its own lands and not to individual Indian allotments.

The decision prompted the state of Oklahoma to file a lawsuit against the EPA in the 10th Circuit Court of Appeals in March. The state fears that the other tribes in the state might seek the same status, resulting in dozens of different, and possibly competing, standards.

So far, 12 Oklahoma tribes have asked the EPA for the same authority but none have been granted. To address potential concerns, several tribes are talking about creating a uniform standards for all tribal lands in the state.

The lack of approvals for Oklahoma tribes hasn't stopped Sen. Jim Inhofe (R-Oklahoma) from stepping in. As chairman of the Senate Environmental and Public Works Committee, which has jurisdiction over EPA, he requested an investigation into the handling of treatment as state applications in the state.

No reports have been released but just last month, the House passed a $26.2 billion appropriations bill that includes language about the case. "The Committee will watch with interest the resolution of this issue," the House Appropriations Committee wrote in a report accompanying the bill, which passed by a 329-89 vote on May 19.

The case is currently in mediation but the tribe is not a party to it. Beyond the state's initial filing, no new briefs have been filed by either the state or the Department of Justice.

The Quapaw Tribe of Oklahoma, however, is seeking to intervene, saying that tribal sovereignty is at risk if the court sides with the state. The tribe plans to apply its own standards to water within Tar Creek, an EPA Superfund site contaminated by over 70 million tons of mine waste.

"Not only could all Oklahoma tribes lose the ability to manage tribal water resources in a case in which no tribal interests were represented, but the Quapaw Tribe faces the real possibility that tribal authority ... could effectively be withdrawn before its own application for treatment as a state is even heard."

The EPA has previously been challenged by states and the private industry over treatment as state designations in Michigan, Wisconsin and New Mexico. But so far, the appeals courts have ruled that Congress acted within its powers to recognize tribal sovereignty.

The most recent case involved a tribe in Wisconsin whose water standards exceeded those of the state and thus would affect activities that occur off-reservation. The 7th Circuit Court of Appeals ruled in favor of the tribe in September 2001 and the U.S. Supreme Court refused to hear the case in June 2002.

An earlier case involved treatment as state designations under the Clean Air Act. The power industry and states challenged the EPA but the Supreme Court refused to hear the dispute back in 2001.

Separately, the Bush administration has affirmed the power of tribes to define their own standards to regulate emissions from coal-fired power plants. The Navajo Nation and the Northern Ute Tribe of Utah were approved under a Clean Air Act rule finalized by the EPA in March.

The appropriations bill passed by the House last month has yet to be taken up by the Senate. The full language in regard to the Pawnee case reads as follows:

The Committee is aware that the Pawnee Nation of Oklahoma has applied for treatment as a State status under the Federal Water Pollution Control Act (commonly known as the `Clean Water Act') and that the issue is currently under litigation. The Committee will watch with interest the resolution of this issue.

EPA Documents:
Approval Letter & Decision Document | Response to Comments

2006 Appropriations Bill:
H.R.2361 | House Report 109-080

Relevant Links:
Pawnee Nation - http://www.pawneenation.org
Oklahoma Department of Environmental Quality - http://www.deq.state.ok.us