Tribal Sovereignty and the Problem of Difference in Environmental Regulation: Observations on “Measured Separatism” in Indian Country

Abstract

The legal and juridical sovereignty of American Indian nations is supposed to help Native peoples maintain their own distinct political and cultural communities. In the context of environmental issues, this means that tribal governments have both the inherent and statutory right to set their own environmental standards, which have the potential to protect tribal peoples and their natural resources in culturally relevant ways. In the past, the US Supreme Court has sought to curtail this kind of sovereignty when the due process of non-Indians might be hindered. In this article, we look at why tribal environmental sovereignty can and should address the issues of due process in the context of environmental regulation in tribal borders, and make a call for this to be done in a way that supports American Indian tribal sovereignty. Moreover, we connect these issues to the current legal and juridical struggles of other environmental justice groups and the need for more meaningful participation in environmental regulation within the nation-state for all cultural minorities.

Native Americans: Where in Environmental Justice Research?

“…Importantly, such sovereignty is not a “partnership” between tribal groups and the federal government. Rather, it “must be recognized, by the dominant culture, that tribal governments can form the basis of a different civic community, a different sense of the public good” (Ranco and Suagee 2007, 692).…”

“…Limitations on tribal sovereignty include, but are not limited to, a tribe's lack of economic power to oppose harmful regulations and development as well as whether or not a tribe is federally recognized as a sovereign nation (Arquette et al 2002; Ranco and Suagee 2007). …”

“…Today, many tribes remain in vulnerable economic positions, largely due to an ongoing colonial relationship with the U.S. government (Bullard 2001; Ishiyama 2003; Ranco and Suagee 2007). The case of the Mescalero Apache's decision to allow uranium extraction on their lands is described in the upcoming section and demonstrates an excellent example of why tribes may “willingly” opt to allow harmful development (Leonard III 1997; Sachs 1996).…”

The Trust Responsibility and Limited Sovereignty: What can Environmental Justice Groups Learn from Indian Nations?

“…Neither of these policy approaches to environmental protection-standard setting or trustee protection-is available to more typical community based environmental justice groups (Ranco and Suagee 2007). These methods are both rooted in the unique legal relationship the United States has with Indian Nations.…”

Standing Up for Inherent Rights: The Role of Indigenous-Led Activism in Protecting Sacred Waters and Ways of Life

“…Scholars of Native American Studies and Native Environmental Law, such as Ranco and Suagee (2007), have helped draw the connections between tribal environmental sovereignty and due process in the context of environmental regulation. Linking self-regulation, selfdetermination, and tribal sovereignty is an important strategy to combat structural racism and environmental and social injustices that put tribes in a position to continually defend or hold the line on treaty rights.…”