Idaho nibbles at Montana: carving out a third exception for tribal jurisdiction over environmental and natural resource management.I. INTRODUCTION
Since time immemorial, the Coeur d'Alene River Basin of the western Rocky Mountains in northern Idaho has been home to the Coeur d'Alene Indian Tribe.(4) As French fur trappers and American settlers arrived in an era of rapid westward migration, the Tribe's subsistence economy gradually gave way to agriculture and timber.(5) The discovery of silver in the 1850s dramatically tarnished the Tribe's reservation environment and quality of life.(6) Over a one-hundred year period, the mining industry in northern Idaho's Silver Valley wiped out most natural life in the Coeur d'Alene River Basin by dumping seventy-two million tons of mining waste into the Coeur d'Alene watershed.(7)
While the State of Idaho ignored the problem for decades, the Tribe developed its own plans. Thus began the Coeur d'Alene Basin restoration project, and the largest natural resource damage lawsuit in American history.(8) In 1991, the Tribe sued several mining companies to clean up the contaminated waters.(9) Today, the Coeur d'Alene Tribe continues its struggle to restore the environmental integrity of its reservation lands.(10) Along with a leading role in cleanup efforts of the basin, the Tribe is also working to resolve ownership of Lake Coeur d'Alene to prevent the State of Idaho from interfering with tribal jurisdiction.(11) Recent history and Idaho's environmental neglect have convinced tribal leadership that the Tribe is the last, best hope for the future health of the Lake.(12)
In these lawsuits, the Coeur d'Alene Tribe asserts its sovereignty to demonstrate the Tribe's commitment to environmental restoration for the entire basin. The Tribe not only wants the mining contamination removed from the Lake, but it also wants to control the cleanup.(13) In 1995, the Tribe applied to the Environmental Protection Agency (EPA) to regulate water quality on Lake Coeur d'Alene.(14) Under the Clean Water Act(15) tribes can apply to EPA for treatment in the same manner as states (TAS).(16) The Coeur d'Alene Tribe wants to set meaningful water quality standards to restore the chemical and biological integrity necessary to sustain thriving fisheries into the future.(17) However, in preparation for its TAS application,(18) the Tribe struggled to establish jurisdiction over Lake Coeur d'Alene. To establish jurisdiction, the Tribe brought an action in 1992 to quiet title to the bedlands underlying Lake Coeur d'Alene, claiming they were included in the Coeur d'Alene Indian Reservation established by President Grant in 1873.(19) Idaho objected under the equal footing doctrine,(20) arguing that the Tribe had no ownership or civil jurisdiction over Lake Coeur d'Alene. In 1997, the Supreme Court ultimately dismissed the Tribe's suit because of Idaho's sovereign immunity under the Eleventh Amendment.(21) In 1999, the Tribe intervened in a subsequent lawsuit brought by the United States against Idaho on behalf of the Tribe.(22) The United States prevailed at trial and the Ninth Circuit affirmed in May 2000, quieting title to lands underlying roughly one-third of Lake Coeur d'Alene and portions of the St. Joe River in the United States as trustee and in the Coeur d'Alene Tribe as beneficial owner.(23) The Supreme Court granted Idaho's petition for certiorari in December 2000 and affirmed the Ninth Circuit's decision on June 18, 2001.(24)
The Coeur d'Alene Tribe's legal struggle to protect Lake Coeur d'Alene and the reservation environment is not unique in Indian law.(25) As a direct result of the General Allotment Act of 1887 (Dawes Act),(26) many Indian reservations are a jurisdictional quagmire, checkerboarded with tribal and federal jurisdiction over trust lands and state jurisdiction over non-Indian fee lands.(27) In the landmark case Montana v. United States,(28) the Supreme Court affirmed settled legal principles regarding submerged lands. Under the equal footing doctrine, states are presumed to own submerged lands underlying lakes and rivers, including those lands located inside Indian reservations.(29) As a result, states have regulatory jurisdiction over such water bodies.(30) Therefore, in the absence of TAS status, tribes must depend on EPA and the states to develop water quality management programs for Indian reservations, despite Congress's well-settled policy of self-determination for Indian tribes.(31) Tribes depend on state agencies and EPA to regulate non-Indian activities that directly affect and threaten the reservation environment.(32) Since Montana, the Supreme Court has also narrowed the ability of tribes to exert regulatory jurisdiction over non-Indians and nonmember Indians.(33) The Court's confusion between tribal jurisdiction over nonmembers and non-Indians continues to this day.(34) To compound the problem, the Court limits tribal jurisdiction based on a misunderstanding of inherent tribal sovereignty and misapplication of a flawed private property rights doctrine.(35)
As epitomized by the Coeur d'Alene Tribe, many Indian nations have a strong cultural and spiritual affiliation with the land and water.(36) Tribal interest in environmental and natural resource management on reservations is high.(37) However, tribes are increasingly unable to manage nonmember activities that interfere with tribal management of natural resources and environmental quality because of the Supreme Court's misapplication of a property rights analysis. The Court's property rights analysis ignores inherent tribal sovereignty,(38) and the Ninth Circuit has struggled to apply the Supreme Court's property rights approach--with mixed results for tribes.(39)
The Ninth Circuit recently avoided the Supreme Court's property rights limitations on inherent tribal sovereignty when the court considered congressional acts recognizing the Coeur d'Alene Tribe's historical dependency on Lake Coeur d'Alene's fisheries.(40) Part II of this Chapter explores the tripartite jurisdictional scheme in Indian country and the Supreme Court's trend toward limiting inherent tribal sovereignty over nonmember activity in the Court's post-Montana decisions. Part III identifies the inadequacy of a property rights-based approach to inherent tribal sovereignty by examining the Ninth Circuit's struggle in applying the Supreme Court's property rights doctrine to questions of jurisdiction over nonmember activities affecting environmental and natural resource management in Indian country. Part IV examines the Ninth Circuit's holding in United States v. Idaho and concludes that it establishes a third Montana exception for tribal jurisdiction over water bodies on Indian reservations created before statehood for tribes that are historically dependent on fisheries. Part V explores the scope of inherent tribal sovereignty over environmental and natural resource management under the proposed third Montana exception. This Chapter concludes by urging all federal courts to recognize that tribes are the presumptive owners of submerged lands inside reservations that were established before statehood and to recognize the existence of the third Montana exception.
II. BACKGROUND: JURISDICITON IN INDIAN COUNTRY
A. The Tripartite System: Tribal, Federal, and State Jurisdiction
Jurisdiction in "Indian country" comes under a tripartite analysis whereby tribes, states, and the federal government share elements of criminal and civil jurisdiction.(41) Tribes play a crucial role in administering criminal jurisdiction over members in Indian country. As a matter of inherent sovereignty,(42) tribes have exclusive jurisdiction over their own members,(43) and over nonmember Indians for minor crimes.(44) However, tribes have no criminal jurisdiction over non-Indians.(45) As a matter of inherent sovereignty, tribes also have exclusive civil jurisdiction over their members in Indian country, subject to the plenary power of Congress.(46) This includes all aspects of municipal sovereignty: elections and voting, hunting and fishing regulations, and health and family welfare.(47) As a matter of inherent sovereignty, tribes also retain civil jurisdiction over certain non-Indian activities through two exceptions to the main rule in Montana.(48) Under the main rule in Montana, tribes do not have regulatory authority over non-Indians as a matter of inherent sovereignty.(49) However, a tribe may regulate non-Indian activity if it falls under one of two exceptions: the consensual relationships exception or the health and welfare exception.(50) Despite the Court's ostensibly broad pronouncement of tribal jurisdiction over non-Indians under these two Montana exceptions, the Court has never held that a tribe has jurisdiction over submerged lands, non-Indian-owned fee lands, or any other lands inside a reservation where the tribe otherwise lost its property right to exclude nonmembers.(51)
The United States has concurrent criminal jurisdiction over Indians in Indian country. Under the Major Crimes Act of 1885(52) and the Indian Country Crimes Act,(53) the federal government has criminal jurisdiction over crimes committed by and against Indians. The United States Congress also has plenary power over Indian affairs.(54) As a result, Congress has the power to recognize, extend, or limit federal and tribal civil jurisdiction in Indian country.(55) With regard to environmental management, EPA retains regulatory and enforcement authority to the extent it has not been delegated to states or tribes.(56) In essence, all upstream waters located on or adjacent to Indian reservations are subject to state authority because when EPA delegates authority to the states to administer the Clean Water Act on Indian reservations the upstream industrial dischargers must obtain a National Pollution Discharge Elimination System (NPDES) permit that complies with the downstream state water quality standards.(57) However, this jurisdictional dispute is gradually giving way to tribal administration of environmental programs because EPA prefers to hold the enforcement authority in trust for qualified tribes under its TAS program.(58)
Traditionally, inherent tribal sovereignty preempted application of state law in Indian Country.(59) However, in the 1950s Congress passed Public Law 280,(60) granting the exercise of federal criminal jurisdiction to certain states. Under Public Law 280, Congress gave states jurisdiction over criminal offenses committed by Indians in Indian country.(61) This provision is currently in effect in the states of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin, with important exceptions for certain tribes.(62)
Public Law 280 also transferred certain aspects of civil jurisdiction to states.(63) In non-Public Law 280 states, the federal-tribal relationship remains the same and states do not have jurisdiction in Indian country without tribal consent. In other words, a state law has no force any time it infringes on tribal sovereignty.(64) Federal law prohibits non-Indians from hunting, trapping, or fishing on Indian lands "without lawful authority or permission" from the tribe.(65) Although Public Law 280 had no effect on Indian water rights, hunting, or fishing,(66) states may regulate in Indian country for a conservation necessity. Under a line of cases stemming from the salmon wars in the Pacific Northwest, states are allowed to regulate tribal harvests of salmon for conservation purposes.(67) However, such state regulations must be necessary and not discriminatory against Indians in either purpose or effect.(68)
Tribes, like states and the United States, are both property owners and sovereign governments. This tripartite jurisdictional scheme provides the backdrop for the Supreme Court's property rights approach to determining the scope of inherent tribal sovereignty over non-Indian activity affecting environmental and natural resource management.
B. Fee Lands and Submerged Lands: Equal Footing, the Liberal Canons of Indian Treaty Construction, and the Montana Analysis
States have jurisdiction over non-Indians and perhaps over nonmember Indians on reservation fee lands,(69) including submerged lands, unless Congress expressly authorizes tribal jurisdiction.(70) Montana v. United States was the modern Court's major pronouncement on the conflict between state and tribal authority over reservation land use. In that case, the Crow Tribe claimed it had authority to prohibit non-Indian hunting and fishing on riparian fee lands adjacent to the Big Horn River inside the borders of the Crow Reservation in Montana. The Crow Tribe initially claimed its regulatory authority over non-Indian fishing based on its ownership of the Big Horn riverbed. The Court rejected that theory, noting that under the equal footing doctrine,(71) title to the riverbed vested in the State of Montana, not the Crow Tribe.(72) The equal footing doctrine recognizes that the thirteen original states obtained title to the submerged lands under navigable waters within their boundaries, subject only to previous conveyances and the federal navigational servitude.(73) Under the doctrine, future states acquired similar title to submerged lands held in trust for them by the United States, upon their admission to the Union.(74) However, the Property Clause provides Congress with the power to dispose of submerged lands in pre-statehood territories.(75) For example, Congress can reserve or dispose of title "in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory."(76) The Court stated that the question whether title to submerged lands rests with a state is a question of federal intent and that intent must be made clear by express reference to the submerged lands.(77) But even where intent is not made express, federal intent may be implied from relevant evidence.(78)
The Court analyzed the Crow Tribe's treaty in light of these exceptions to the equal footing doctrine, balanced with the liberal canons of Indian treaty construction.(79) Noting that at the time of the treaty the Crow Tribe was "dependent chiefly on buffalo"--as opposed to fish--the Court determined that the purpose of the reservation would be upheld even without the inclusion of the riverbed.(80) Furthermore, the Court concluded that the United States's treaty with the Crow Tribe did not fall within one of the exceptions to the equal footing doctrine; therefore, Congress did not evince a clear intent to overcome the presumption that title to the Big Horn riverbed passed to Montana upon its admission to the Union.(81)
The Crow Tribe also argued that even if it did not own the riverbed, it was nevertheless entitled to regulate the non-Indian activity as a matter of inherent tribal sovereignty, notwithstanding the fact that the activity occurred on non-Indian fee land.(82) The Court rejected that argument as it set forth the main rule from Montana: "[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe."(83) The Court determined that because the regulation of hunting and fishing by nonmembers of a tribe on fee lands bore no clear relationship to tribal self-government or internal relations, the general principles of retained inherent sovereignty did not authorize the Crow Tribe to regulate the non-Indian fishing.(84) Examining decisions regarding the scope of inherent sovereignty,(85) the Court set forth conditions for when a tribe retains "inherent power to [regulate] conduct of non-Indians on fee lands within its reservation"(86) under two exceptions to the general rule in Montana. Under the first exception, tribes may exercise civil jurisdiction over nonmembers who enter consensual relationships with the tribe or its members (the "consensual relationships exception").(87) For example, commercial enterprises engaging in business ventures with a tribe may be subject to the tribe's regulatory authority, especially the power to tax.(88) Under the second exception, tribes may regulate nonmember activity that "threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe" (the "health and welfare exception").(89) Applying this analysis, the Court first noted that the non-Indian fishermen did not have a consensual relationship with the Crow Tribe.(90) Turning to the health and welfare exception, the Court found dispositive that members of the Crow Tribe were dependent on buffalo--and were not a fish people.(91) Therefore, the Court refused to characterize the non-Indian fishing as having a direct effect on the health and welfare of the Crow Tribe.(92) As a result, the Tribe had no jurisdiction over the non-Indian fishing inside the reservation, thereby frustrating tribal management of the fishery. Nevertheless, the Court left open the possibility of tribal regulation of non-Indian activity if tribes meet the burden of showing that the non-Indian activity threatens or has a direct effect on the health and welfare of the tribe.
C. Application of the Second Montana Exception
As lower courts applied the potentially broad aspects of Montana's health and welfare exception, the second exception prevailed in a few cases in the Ninth Circuit.(93) Lower courts had been particularly amenable to tribal assertions of zoning authority over fee lands.(94) Although the Montana exceptions seem to contemplate tribal jurisdiction over aboriginal concerns for the land, the Supreme Court has limited the general holding to activities that the United States considers critical to tribal self government,(95) and to internal relations.(96) The modern Court has also limited application of the second Montana exception in favor of a more limited property rights approach based on a tribal loss of the property right to exclude.(97) Despite the potentially broad aspects of Montana's health and welfare exception, the Court has never held that a tribe has jurisdiction over submerged lands, non-Indian-owned fee lands, or any other lands inside a reservation where the tribe otherwise lost its property right to exclude nonmembers such as state-owned highways and privately-owned easements.(98)
1. Zoning and Land Use
The land base and natural resources of Indian tribes are an important means of preserving Indian sovereignty.(99) However, in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation,(100) the Court held that the Yakima Nation lacked authority to zone nonmember fee lands in the "open area"(101) of the reservation because the Tribe had lost its right to exclude nonmembers from that area.(102) The Court ruled that the second Montana exception (the health and welfare exception) was not dispositive as a source for jurisdiction, noting that the exception is prefaced by the word "may."(103) According to Justice White's plurality opinion, the word "may" "indicate[d] that a tribe's authority need not extend to all conduct that `threatens or has some direct effect' ... but instead depends on the circumstances."(104) The Brendale plurality entered into a factually intensive analysis of the Yakima Reservation, altering the weight of tribal interests under the second Montana exception to determine whether the Tribe's interests were "protectable,"(105) and whether the impact of the non-Indian activity was "demonstrably serious."(106) This was the Court's first major limitation on the application of the health and welfare exception. By requiring Tribes to affirmatively assert that their interests are "protectable" and that the impact from the non-Indian activity is "demonstratably serious," the Court placed a heavy burden on Indian tribes.
Justices Stevens and O'Connor joined the Brendale plurality to deliver a majority opinion regarding the open portion of the Yakima Reservation. Justice Stevens analyzed "the extent to which the Tribe's virtually absolute power to exclude has been either diminished by federal statute or voluntarily surrendered by the Tribe itself."(107) Recognizing the importance of zoning as the "process whereby a community defines its essential character," Justice Stevens concurred in denying tribal jurisdiction over the open area of the reservation.(108) Because the Tribe could no longer determine the essential character of that portion of the reservation--as the result of large portions of the reservation lands having been allotted and sold in fee--Justice Stevens reasoned that "the Tribe's legitimate interest in land-use regulation was also diminished."(109) This assertion directly conflicts with federal Indian policy. The primary purpose of the Indian Reorganization Act(110) was to retract the policy and impacts of allotment.(111) If Justice Stevens's analysis was carried to its logical end, then even under the consensual relationships exception, a non-Indian business would not have to comply with any tribal building or zoning regulation.
The Court distinguished the "closed area" of the reservation that was not allotted to nonmembers, determining that it remained subject to tribal zoning authority because the Tribe maintained the power to exclude nonmembers and "preserved the power to define the essential character of that area."(112) Justice Stevens distinguished the Yakima Tribe's zoning authority with the Crow Tribe's attempt to prohibit non-Indians from hunting and fishing on their private fee lands in Montana.(113) Justice Stevens noted that the Tribe was using its zoning authority in the closed area, even against its own members, to protect cultural and spiritual values critical to the health and welfare of the Yakima Nation.(114)
The three dissenting justices refused to engage in the factually intensive analysis of closed and open areas. Instead, Justice Blackmun reasoned that tribal authority to regulate land use implicated significant tribal interests sufficient to trigger inherent sovereignty under the second Montana exception: "It would be difficult to conceive of a power more central `to the economic security, or the health or welfare of the tribe,' than the power to zone.... This fundamental sovereign power to control land use is especially vital to Indians, who enjoy a unique historical and cultural connection to the land."(115) This statement is the proper analysis in light of the federal policy of self-determination for Indian tribes. Tribal declarations of interests are entitled to judicial deference and should be deemed protectable if they threaten or have a direct effect on the health and welfare of the tribe. Appellate courts, including the Supreme Court, are ill-equipped to second-guess the traditional tribal interests in environmental and natural resource management, including zoning authority.
2. Hunting and Fishing
In South Dakota v. Bourland,(116) the Court extended its property rights approach when it considered whether the Cheyenne River Sioux Tribe could regulate non-Indian fishing and hunting on reservation lands that the United States purchased for the Oahe Dam and Reservoir project. The Tribe's treaty guaranteed the Sioux Nation the "absolute and undisturbed use and occupation" of the reservation.(117) Despite that language, the Court held that "Congress, through the Flood Control and Cheyenne River Acts[,] eliminated the Tribe's power to exclude non-Indians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe."(118) The Court reversed the Eighth Circuit, which distinguished Montana on the basis that the purposes of the congressional acts were merely to purchase land for the dam and reservoir, rather than to destroy tribal self-government (as the Allotment Act did in Montana).(119)
Justices Blackmun and Souter objected that tribal authority over non-Indian fishing and hunting on the lands was fully consistent with congressional purpose.(120) However, the majority unequivocally stated that "what is relevant ... is the effect of the land alienation.... [T]he effect of the transfer is the destruction of pre-existing Indian rights to regulatory control."(121) Nonetheless, the Court left for remand the question whether the Tribe retained its inherent regulatory authority under the Montana exceptions. On remand, the Eighth Circuit upheld the district court's findings that although non-Indian hunting interfered with tribal cattle grazing and reductions in the deer population, the non-Indian hunting and fishing the Tribe sought to regulate was merely vexatious and did not directly affect tribal interests.(122) This Eighth Circuit decision highlights the difficulty and confusion experienced by lower courts in applying the Supreme Court's flawed hybrid property rights approach to the second Montana exception. The Court's remand also demonstrates the Court's continued paternalistic tendencies towards tribes, contradicting the federal policy of self-determination.(123)
3. Judicial Jurisdiction
Finally, in Strate v. A-1 Contractors,(124) the Supreme Court made clear that it would determine tribal jurisdiction under its property rights approach, rather than under a straightforward application of Montana and its exceptions. The Court held that the Tribes did not have judicial jurisdiction over nonmembers in a tort action arising out of a car accident on a state-owned highway within the boundaries of the Fort Berthold Indian Reservation.(125) The Court reasoned that the state-owned highway was the jurisdictional equivalent of fee land for purposes of tribal jurisdiction over nonmembers.(126) In this case, the plaintiffs brought suit in tribal court, and the defendants contested the tribal court's subject matter jurisdiction. Observing that a tribe's judicial jurisdiction "does not exceed" its regulatory or legislative jurisdiction,(127) the Court determined that the state's right-of-way in the highway was open to the public, subject to the state's control, and the Tribes had "retained no gatekeeping right."(128) The Court concluded that because "the Tribes cannot assert a landowner's right to occupy and exclude,"(129) the highway is equated with land alienated to non-Indians for purposes of regulatory jurisdiction. This conclusion is problematic because it ignores the fact that Tribes have inherent sovereignty over their territory to the extent that Montana allows.
In Strate, the Court also concluded that tribal court jurisdiction was improper under the second Montana exception. Noting that negligent driving on a public highway running through the reservation jeopardizes the safety of tribal members, the Court reasoned, "if Montana's second exception requires no more, the exception would severely shrink the rule."(130) After examining four cases where the tribal jurisdiction over nonmembers was upheld (and state jurisdiction in Indian country was overturned),(131) the Court added another step of analysis: the subjective qualifier of whether a state regulation would "trench unduly on tribal self-government."(132) Referring to Montana, the Court upheld the principle that a tribe's inherent power does not reach "beyond what is necessary to protect tribal self-government or to control internal relations."(133) As a result, Strate also continued the paternalistic tendencies of the Court towards Indian tribes--substituting its judgment for that of the Tribestin direct conflict with the federal policy of self-determination.
III. INADEQUACY OF THE PROPERTY RIGHTS APPROACH
A. Conflicts Between the Supreme Court's Property Rights Approach and Self-Determination
Not only does the property rights doctrine conflict with inherent tribal sovereignty, but the doctrine directly conflicts With the central theme of federal Indian policy: self-determination.(134) Self-determination is the hallmark of federal Indian policy.(135) Ushered in by President Nixon in 1970,(136) and ratified as the central theme of federal Indian policy by executive order in the Reagan administration,(137) self-determination has been heralded as the touchstone of Indian policy by every subsequent administration.(138)
1. Self-Determination in the Natural Resource Context
The property rights approach to jurisdiction limits the ability of tribes to regulate environmental and natural resource management. Many statutes dealing with environmental quality and natural resource management envision qualified tribes as the primary administrator in Indian country.(139) Congress determined that in many areas of environmental quality and natural resource management, tribal jurisdiction and the accompanying right to regulate nonmember activity encompasses more than private property rights.(140) This determination reflects the United States's longstanding policy of self-determination for Indians. Moreover, under the Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA),(141) Congress concluded that a property rights analysis would materially limit assertions of tribal sovereignty and the progress of self-determination for Indians.(142)
If the Supreme Court's property rights analysis continues, this policy of self-determination would ring hollow for a people whose culture and history are rooted in the land, and yet they possess no ability to protect their environment or manage their natural resources. However, Congress has decided this is not the case. Under the Indian Self-Determination and Education Act Amendments of 1994 (the 1994 Amendments),(143) tribes are encouraged to submit proposals to contract for activities "for the benefit of Indians because of their status as Indians."(144) Congress explicitly provided that tribes may contract for natural resource programs operated by agencies within the Department of the Interior.(145) This policy evidences a congressional recognition that tribes have a fundamental interest in environmental and natural resource management and that tribal activities approved for contracting under the 1994 Amendments may indeed have regulatory impacts on non-Indians both on and off the reservation.(146) This conclusion is bolstered by the Department of the Interior's policy for carrying out the United States's trust responsibilities with regard to natural resource management,(147) and by EPA's Indian Policy.(148) The Supreme Court infringes on principles of separation of powers by ignoring thirty years of federal Indian policy and instead asserting a property rights approach that patronizes and materially limits inherent tribal sovereignty over environmental and natural resource management in Indian country.
2. Self-Determination and the Power to Tax
The power to tax is another example of the inadequacy of the Supreme Court's
property rights analysis for determining tribal jurisdiction over environmental and natural resource management because until quite recently, the Court did not analyze the taxing power under the rule and exceptions in Montana.(149) The Court has been quick to assume that the power to tax is an essential attribute of sovereignty, necessary to fund the processes of tribal government and the exercise of self-determination.(150) Although many tribes fund government functions from their power to tax--their power to tax both nonmembers and non-Indians conducting activity or owning property inside reservations--it is patently paternalistic for the Court to impose its values on tribal governments. Certainly some tribes value the power to tax as a fundamental attribute of sovereignty, but other tribes may forego their power to tax, or even exercise traditional views that are incompatible with taxing. Those tribes may just as well wish to regulate nonmember and non-Indian activity in ways that protect cultural and natural resources.
Until recently, the Court itself has set up a false dichotomy for taxation. The Court drew a distinction between taxes that are revenue raising and those that are regulatory in nature.(151) Accordingly, revenue-raising taxes did not come under the Montana analysis because the Court had characterized those taxes as a "fundamental attribute of sovereignty."(152) Although non-Indians successfully challenged this judicial dichotomy(153)--urging that all tribal taxes should fall under the Court's misapplication of its property-rights analysis to preclude tribal sovereignty to tax--in the future, tribes might in turn argue that natural resource regulations are taxes and are exertions of tribal sovereignty over the natural resources, unrelated to their inherent power to tax.
B. Conflicts Between the Supreme Court's Property Rights Approach and Inherent Tribal Sovereignty
The modern Court has been particularly amenable to claims rooted in property rights, even for tribes.(154) While a property rights analysis has had important successes for providing tribes with the ability to protect natural resources outside of reservations--most notably off-reservation fishing rights in the Pacific Northwest(155)--the property rights analysis has an overall negative impact on tribal management of reservation resources. The Court's property rights analysis is the wrong rubric to measure inherent sovereignty on reservations; a straightforward application of Montana is preferable. In the context of self-determination, reviewing courts should afford the highest degree of deference to tribal declarations of tribal interests related to environmental and natural resource management in asserting jurisdiction on their reservations.
1. The Limited Application of the Property Rights Analysis: Off-Reservation Usufructuary Rights
The Court has deemed that Indian property rights include profits a prendre, thereby setting judicial precedent for Indians to retain and exercise their reserved, off-reservation treaty rights.(156) While a property rights-based approach may be appropriate to determine the scope of reserved treaty rights for off-reservation usufructuary rights for hunting and fishing, the approach is flawed as an avenue of determining inherent tribal sovereignty for on-reservation activity.
In United States v. Winans,(157) the Court held that the Stevens Treaty tribes of the Pacific Northwest retained property rights to access off-reservation fishing sites. The treaties guaranteed the tribes the right to take "fish at all usual and accustomed [grounds and stations], in common with the citizens of the Territory."(158) The Court determined that language imposed a servitude on non-Indian fee lands adjacent to the Columbia River.(159) Therefore, non-Indian landowners could not exclude Indians from accessing their historic fishing sites on the river.(160) In 1979, the Supreme Court expanded this property theory and galvanized the property right of taking fish in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n,(161) holding that Stevens Treaty tribes were entitled to property rights under the treaty language of up to fifty percent of the harvestable fish.(162)
The Court recently upheld the usufructuary rights of hunting and gathering in Minnesota v. Mille Lacs Band of Chippewa Indians,(163) holding that Minnesota could not bar a tribe from exercising off-reservation hunting and gathering rights because the rights were never extinguished.(164) This case represents the modern survival of tribal usufructuary rights and also highlights a key aspect of treaty negotiations: some tribes bargained for these rights. But even for those tribes that did not bargain for off-reservation usufructuary rights, the Court applies the liberal canons of Indian treaty construction to create the implied reservation-of-rights doctrine set forth in United States v. Winters.(165) Although the Court's consistent rulings for off-reservation property rights comport with the federal policy of self-determination and satisfy trust responsibilities on a government-to-government basis,(166) tribes have even more fundamental interests in on-reservation environmental and natural resource issues that are unaddressed by the Court's property rights analysis.
2. Conflicts with Inherent Tribal Sovereignty on Reservations
The property rights analysis is the wrong rubric to determine inherent tribal sovereignty for on-reservation activity, particularly in light of thirty years of United States's policy of self-determination. Tribal jurisdiction should not be limited to the scope of a tribe's property right to exclude nonmembers when inherent sovereignty exists to regulate on-reservation activity under the Montana analysis. The Supreme Court's property rights analysis does not allow tribes to protect inherent sovereign interests such as religious and cultural resources, natural resources, water and air quality, and land-use zoning. The Court's property rights analysis is flawed because it turns on subjective, factually intense factors that disregard and disrespect both inherent sovereignty and congressional intent to delegate natural resource management to tribes.
The property rights approach only perpetuates the jurisdictional quagmire of the checkerboard land holdings and blocks the federal policy of self-determination. Judicial determinations of the "purpose" of a reservation,(167) the "Indian character of the land,"(168) and whether a tribe has "lost its gatekeeping right"(169) are subjective and patronizing at best, and a violation of separation of powers at worst, given the longstanding federal policy of self-determination. As Justice Blackmun's dissenting opinion in Brendale urges, it is not the purpose of creating the reservation or the effects of allotment that matter, but rather the intent of subsequent Congresses that passed the Indian Reorganization Act repudiating the Allotment Act and setting the current policy of self-determination.(170) The Court should abandon its flawed property rights approach and defer to tribal declarations of interest and impacts on tribal health and welfare in applying a straightforward Montana analysis to determine the extent of inherent tribal sovereignty.
3. Environmental Media Other Than Land
The Supreme Court's property rights approach is also wholly inadequate for determining the scope of jurisdiction over environmental media other than land, such as air and water. The Court has failed to address tribal efforts at regulating these reservation resources other than through its property rights approach under the Montana exceptions. With the post-Montana decisions rendering the health and welfare exception virtually useless and adopting in its place a property rights analysis, the Court has implicitly abandoned its own property rights logic. On one hand the Court is willing to concede that tribes have reserved off-reservation rights to hunt and fish (the property right being a profit a prendre); yet at the same time the Court fails to recognize that in these same treaties tribes reserved all aspects of inherent tribal sovereignty within their reserved territory. It is at this level, viewed from the perspective of inherent tribal sovereignty, that the Court has consistently affirmed the fundamental notion that treaties are "not a grant of rights to the Indians, but a grant of rights from them,--a reservation of those not granted."(171) Despite this widely accepted premise, the Court fails to carry it to the necessary conclusion that tribes also retain inherent sovereignty over environmental and natural resource management, notwithstanding the legacy of allotment and checkerboard land holdings. A more consistent and historically accurate analysis recognizes tribal jurisdiction on reservations to the extent that tribal jurisdiction is not implicitly divested, as against the overriding sovereignty of the United States by virtue of the tribes' domestic dependent status(172)--not by a subjective property rights analysis. Because Congress has determined that tribal environmental and natural resource management furthers the policy of self-determination, tribal jurisdiction over non-Indians in this regard is not in conflict with United States's sovereignty. Therefore, tribes should have jurisdiction over non-Indian activity that interferes with on-reservation tribal environmental and natural resource management.
C. The Ninth Circuit's Struggle to Apply the Property Rights Approach
The Ninth Circuit struggles to apply the Supreme Court's distinction between property rights and sovereignty. This is not surprising, given the implicit limits of a property rights analysis for a sovereign. While tribes are both property owners and sovereign nations, the property rights analysis fails to entirely account for basic sovereign interests in reservation environmental and natural resource management. Moreover, neither federal nor state sovereignty is limited by property rights. Other circuits mimic the Ninth Circuit's struggle to define the scope of tribal jurisdiction in this context. Uniform application of the Montana analysis is needed in the realm of environmental and natural resource management.
1. Ownership and Jurisdiction of Submerged Lands
In Confederated Salish and Kootenai Tribes of the Flathead Reservation v. Namen (Namen I),(173) the Ninth Circuit held that the Tribes were the beneficial owners of a lake bed below mean high tide and therefore, retained jurisdiction over non-Indians building docks. The court reasoned that because the United States held the submerged lands in trust for the Tribes, the Tribes had jurisdiction over the activity because the activity had the potential to significantly affect the Tribe's health and welfare.(174) In Puyallup Indian Tribe v. Port of Tacoma (Puyallup),(175) the Ninth Circuit held that the Puyallup Tribe was the beneficial owner of bedlands underlying the Puyallup River inside its reservation, which was created before statehood. As the beneficial owner, the court held that the Tribe had presumptive jurisdiction over the submerged lands.(176) The Ninth Circuit carved out a three-part test to determine whether federal intent to include a body of water in an Indian reservation overcame the presumption that submerged lands passed to states upon admission to the Union: 1) whether the reservation included navigable water within its boundaries; 2) whether the tribe depended on the body of water for a significant portion of the tribe's needs (that is, whether the tribe was historically dependent on fishing); and 3) whether the United States was aware of the importance of the submerged lands and the water resource to the tribe at the time the reservation was established.(177)
United States v. Aam(178) was the first case to apply that three-part test and find against a tribe. The court applied the Puyallup test and concluded that the Suquamish Tribe failed to establish either that it was dependent on the fishery resources in the disputed tidelands or that the United States was well enough aware of the importance of tidelands to the Tribe that it could be inferred that the United States intended to include the tidelands in the reservation.(179) Although the court ruled that the Suquamish Tribe reasonably believed the tidelands were part of the reservation, neither the second nor third Puyallup factors were satisfied.(180) As a result, title transferred to the Washington upon its admission to the Union and to the defendant through subsequent conveyances by the State.(181) Now, in United States v. Idaho,(182) the Supreme Court affirmed the Ninth Circuit's determination that the Coeur d'Alene Tribe, rather than Idaho, is the beneficial owner of lands underlying portions of Lake Coeur d'Alene and the St. Joe River. In short, the Ninth Circuit has had to develop its own three-part test to arrive at a federal intent to overcome the presumptions of the equal footing doctrine.(183)
2. Hunting and Fishing
Hunting and fishing are two of the most important natural resource issues for tribes because they "are founded on immemorial custom and practice."(184) While tribes have had success in exercising off-reservation fishing rights because of the Supreme Court's recognition of those rights as protected property rights,(185) the Court's guidance for tribal on-reservation regulation of non-Indians has been wanting. In Montana, the Court held that the Crow Tribe lacked authority to regulate non-Indian fishing on the Big Horn River inside the Crow Reservation.(186) In South Dakota v. Bourland, the Court remanded to determine whether the Cheyenne River Sioux Tribe had inherent sovereignty to regulate non-Indian fishing under Montana's health and welfare exception.(187) Many cases in the Pacific Northwest have examined the states' roles in regulating tribal fisheries, but have not explored the extent that tribes can regulate non-Indians, despite the direct effects that non-Indian fishing has on the health and welfare of tribal members.(188)
3. Water Quality Management
Water quality is a critical natural resource issue for tribes, especially tribes dependent on fisheries.(189) The ability of tribes to manage reservation water quality is essential for fisheries, irrigation, and economic development.(190) In Montana v. EPA,(191) the Ninth Circuit upheld EPA's presumption of tribal jurisdiction to implement section 518 of the Clean Water Act(192) under Montana's second exception.(193) Although non-Indian industries were discharging pollutants from non-Indian fee land, EPA presumed that the Kootenai and Salish Tribes of the Flathead Indian Reservation had jurisdiction over Flathead Lake because the tribes had beneficial title to the submerged lands.(194) Having met the jurisdictional element of TAS status,(195) the Tribes were granted primary authority to administer the Clean Water Act, notably the ability to set water quality standards and issue permits requiring conformance with those standards. The Ninth Circuit gave no deference to EPA's determination of the Tribes' jurisdiction over the lake; however, the court agreed with EPA's finding that the non-Indian activities threatened and had direct effects on the health and welfare of the Tribes.(196)
In Lummi Indian Tribe v. Hallauer,(197) the Western District of Washington upheld the Lummi Tribe's authority to require non-Indian reservation residents to connect to the tribal government's sewer system.(198) However, given the Supreme Court's trend toward abandoning the application of the Montana exceptions in favor of a property rights approach, it is highly questionable whether the Court would uphold these rulings in the water quality context. These two cases demonstrate the ability of courts to apply the second Montana exception to recognize the inherent sovereignty over natural resources and environmental quality.
4. Mineral Leasing
Indian tribes are asserting more control over the development of their natural resources.(199) The leasing of Indian lands for mineral development is a natural resource issue that is not analyzed under Montana This is primarily because of federal preemption under the Indian Energy Resources Act,(200) but also because tribes' quasi-regulation is in the form of a tax. The power to tax is an essential attribute of sovereignty that the Supreme Court has continually distinguished from the property-rights analysis.(201) The Court has upheld tribal severance taxes on non-Indian lessees even though they have de facto regulatory impacts on non-Indian property interests.(202) The Ninth Circuit has followed this approach with some difficulty in applying the Supreme Court's property rights approach.(203) The rationale for avoiding the Montana analysis--whether rooted in federal preemption or the taxing power--bolsters the argument that a pure property rights analysis is wholly inadequate as an exclusive avenue of determining tribal jurisdiction for environmental and natural resource management in Indian country.
5. Protection of Religious and Cultural Resources
Tribes often attempt to utilize land-use zoning powers to protect religious, ceremonial, and culturally sensitive sites. Before Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, many tribes zoned their reservations, including non-Indian fee lands; however, since Brendale non-Indian property rights advocates have successfully challenged the ability of tribes to utilize land-use measures to protect religious sites.(204) Bugenig v. Hoopa Valley Tribe(205) is the Ninth Circuit's most recent application of the second Montana exception. The court held that the Hoopa Valley Tribe could not regulate non-Indian fee land to require a buffer zone under its timber management plan, which was designed in part to protect religious sites.(206) The Ninth Circuit underscored that the health and welfare exception "is narrowly construed."(207) Otherwise, the exception would "swallow the rule because virtually every act that occurs on the reservation could be argued to have some political, economic, health or welfare ramification to the tribe."(208) The exception is limited to the extent that tribal jurisdiction "is necessary to protect self-government or to control internal relations."(209) Recognizing that Bugenig's logging may have some implications for the Tribe, the Ninth Circuit emphasized that the dispositive inquiry is whether Bugenig's logging threatens to "trench unduly on tribal self-government."(210) Rather than conducting an aggregation analysis and considering the overall impact of potential logging in the buffer zone, the court looked only to the effect of Bugenig's logging on the Hoopa Valley Tribe's political integrity.(211) The Ninth Circuit concluded that this selective timber harvest on a parcel of less than three acres was not demonstrably serious, nor did it trench unduly on tribal self-government.(212)
The Ninth Circuit distinguished the Hoopa Valley Tribe's timber management buffer zone with a recent decision upholding the Salish and Kootenai Tribes' authority to regulate nonmember activity that threatened tribal water rights and water quality.(213) Due to the tangible and direct threat posed to tribal health and welfare, the Ninth Circuit stated that while it was "difficult to imagine how serious threats to water quality could not have profound implications for tribal self-government," the same could not be said of the buffer zone.(214) Finally, the Ninth Circuit confirmed the inapplicability of the second Montana exception based upon the Tribe losing its right to exclude nonmembers from the reservation.(215) The court noted the strong connection between tribal power to regulate and tribal ability to control the land. Because "tribes lack authority to regulate, and thus power to adjudicate, activities on land alienated to non-Indians," the Ninth Circuit concluded that Montana's main rule controlled this case.(216) This decision illustrates the struggle of lower courts in applying the Supreme Court's flawed property rights approach to tribal jurisdiction. This case also demonstrates the total inability of tribes to manage reservation resources in a holistic manner, at least where non-consenting nonmember fee landowners are involved. When reviewing courts substitute their judgment for the tribes' by second guessing tribal interests, tribes are rendered powerless to prevent non-Indian activity from disturbing tribal religious sites.
6. Judicial Jurisdiction
Lower courts are defining the scope of jurisdiction in light of the Supreme Court's property rights approach in ways that erode tribal judicial jurisdiction. In two recent cases, the Ninth Circuit has analogized both public and private easements as the equivalent of non-Indian fee land for purposes of jurisdiction.(217) As a result, tribes are unable to regulate environmental quality and natural resources over these reservation properties, much less exercise judicial jurisdiction over nonmember activities arising thereon. In Wilson v. Marchington, the Ninth Circuit held that a Blackfeet Tribal Court judgment against non-Indian defendants in a tort action arising from a car accident was not entitled to recognition in United States courts.(218) The court reasoned that for purposes of jurisdiction, a public easement--in this case a state-owned highway--was analogous to non-Indian fee land as it was in Strate v. A-1 Contractors.(219) In Big Horn County Electric Cooperative v. Adams,(220) the Ninth Circuit extended that analysis to a private easement.(221) For jurisdictional analysis, the private easement was analogous to non-Indian fee land and the Crow Tribe was unable to tax electric utility transmission lines--located on a congressionally granted right-of-way--despite the cooperative's consensual relationship with the Tribe and its direct effect on the Crow Tribe's health and welfare.(222) However, in Nevada v. Hicks,(223) the Ninth Circuit held that the Fallon Paiute-Shoshone Tribes did not lose its gatekeeping right when it allowed state police to accompany tribal police when searching a tribal member's property for illegally obtained California bighorn sheep antlers.(224) The Supreme Court reversed the Ninth Circuit's decision on June 25, 2001 and held that the Tribe lacked jurisdiction, although the Court did not apply its strict property rights approach.(225)
Each of these issues and cases highlights the Ninth Circuit's struggle to take cues from the Supreme Court as to when to apply the Montana analysis and when to apply a property rights analysis. The only consistent theme is that tribal jurisdiction is continually eroding. Moreover, these cases illustrate the need for a uniform approach to environmental and natural resource management in Indian country. Despite thirty years of a federal policy of self-determination and government-to-government relationships--and Congress's express recognition of tribal sovereignty over environmental and natural resource management in Indian country--federal courts continue to carve into tribal jurisdiction through paternalistic dictation of tribal interests and by limiting tribal declarations of interests under a flawed property rights approach.
IV. UNITED STATES V. IDAHO: NIBBLING AT MONTANA
In 1991, the Coeur d'Alene Tribe sued Idaho to quiet title to Lake Coeur d'Alene.(226) The Supreme Court ultimately dismissed the Tribe's suit based on Idaho's sovereign immunity under the Eleventh Amendment.(227) The United States then sued on behalf of the Tribe, and the Ninth Circuit affirmed the district court's decision quieting title in Lake Coeur d'Alene to the United States as trustee and the Coeur d'Alene Indian Tribe as beneficial owner.(228) The Supreme Court affirmed the Ninth Circuit's decision on June 18, 2001.(229) As a result, the Coeur d'Alene Tribe--as a sovereign landowner--now has regulatory jurisdiction over submerged lands underlying the southern third of Lake Coeur d'Alene and portions of the St. Joe River. Nearly twenty-four miles long and one to three miles wide, Lake Coeur d'Alene is at the heart of the Coeur d'Alene reservation.(230) Fed by the snowy caps of the Bitterroot Range via the Coeur d'Alene and St. Joe Rivers, the Lake is also the origin of the Spokane River.(231) The United States recognized the Tribe's historical dependency on the fisheries supported by the Lake(232) when it included the Lake inside the exterior boundaries of the Coeur d'Alene Indian Reservation in 1873.(233)
The Ninth Circuit agreed with the Tribe, holding that Congress's course of conduct in the years immediately preceding Idaho's statehood in 1890, demonstrated Congress's intent to defeat Idaho's title to the submerged lands within the reservation. The court juxtaposed two competing principles: the liberal canons of Indian treaty construction dictating that ambiguities be resolved in favor of the Indians,(234) and the presumption under the equal footing doctrine that a state gains title to submerged lands within its borders upon admission to the Union.(235) Adopting the two-prong test set out in Montana and reaffirmed in United States v. Alaska,(236) the Ninth Circuit stated that the key question in determining whether state title to submerged lands had been defeated was "whether the United States intended to include submerged lands within the [reservation] and to defeat [Idaho's] title to those lands."(237)
President Andrew Johnson established the Coeur d'Alene Indian Reservation in 1867, which embraced a small portion of Lake Coeur d'Alene.(238) The Tribe was informed of the order in 1871 when the Tribe requested a charter for a reservation in its petition to the Commissioner of Indian Affairs.(239) The Tribe sent a second petition in 1872, requesting inclusion of the mission and the St. Joe and Coeur d'Alene River valleys because of the Tribe's dependence on fisheries and water resources.(240) In 1873, Congress authorized a commission to negotiate with the Tribe for a larger reservation.(241) President Grant established a larger reservation in 1873, which included the vast majority of Lake Coeur d'Alene.(242) The executive order was contingent on congressional approval. (243) Prior to express congressional ratification, executive and congressional action regarding the Tribe's reservation in 1887 and 1889 operated from the premise of the boundaries identified in the 1873 executive order, including the submerged lands underlying Lake Coeur d'Alene.(244) Congress formally ratified the 1887 and 1889 agreements in 1891,(245) nine months after Idaho's admission to the Union.(246)
The Ninth Circuit acknowledged that in a case involving submerged lands and equal footing, the court begins with a strong presumption against defeat of state title.(247) The court then applied the Supreme Court's two-prong test to determine whether the United States overcame that presumption, duly noting that the district court applied the three-part Puyallup test.(248) The court brushed aside the first prong of the test, noting that for purposes of appeal, Idaho conceded that the 1873 executive order intended to reserve title to the submerged lands in the Coeur d'Alene Tribe and not the State.(249) Turning to the second prong, the court emphasized that nothing in Alaska requires a finding of explicit congressional ratification of an agreement reserving submerged lands.(250) The court based its determination of federal intent based on application of Alaska's three key factors:(251) 1) the reservation boundaries were drawn to include the submerged lands; 2) the purpose of the reservation would be defeated without inclusion of the submerged lands; and 3) Congress included language in the statehood act indicating the United States, rather than Idaho, retained regulatory authority in the reservation.(252) Most significant to the Ninth Circuit was the series of congressional actions taken in the 1880s, which showed that Congress acknowledged that beneficial ownership of the submerged lands had passed to the Coeur d'Alene Tribe.(253) Thus, the Ninth Circuit held that "Congress's actions prior to statehood clearly indicate[d] its acknowledgment, express recognition, and acceptance of the executive reservation, thereby establishing its intent to defeat [Idaho's] title."(254)
The court found it crucial to examine the precise information Congress had before it in the 1880s. Examining Congress's language in the 1889 negotiations to redraw the 1873 reservation boundaries, the court applied the canons of treaty construction favoring Indians and found the purpose was specifically for "establishing the Tribe's right to the Lake and rivers."(255) Congress therefore intended that the reservation encompass the submerged lands. Citing the Tribe's refusal to settle on the earlier proposed lands that did not encompass Lake Coeur d'Alene and its waterways, the court's conclusion found even stronger support in the second factor.(256) Because the Coeur d'Alene Tribe was dependent on the fisheries supported by the Lake, the purpose of the reservation would have been defeated if it did not include the Lake's submerged lands.(257) The Ninth Circuit emphasized "that Congress recognized that the executive reservation included submerged lands."(258)
The court noted that although Congress had the power and the opportunity to reject the executive order reservation and the 1887 agreement, Congress never did so.(259) Instead, Congress authorized negotiations in 1889 to acquire non-agricultural lands "for the purchase and release by said tribe of such portions of its reservation ... as such tribe shall consent to sell."(260) The court interpreted these events as clear evidence that Congress's main purpose was to buy whatever submerged lands the Coeur d'Alene Tribe was willing to sell.(261) The court bolstered its analysis with Idaho's admission bill and Constitution, which recognized the United States's authority and title over Indian lands within Idaho.(262)
The court also concluded that Congress's post-statehood actions confirmed that the lands underlying Lake Coeur d'Alene passed to the Tribe before Idaho entered the Union.(263) Most notably, the 1894 Harrison Act withdrew a narrow strip of land and a corner of the Lake from the reservation.(264) The court found this acknowledgment of tribal ownership in the lake bed "tantamount to a memorialization of prior events," as was a land withdrawal in 1908 for creation of a park.(265) In short, the Ninth Circuit implicitly recognized that the Coeur d'Alene Tribe has regulatory jurisdiction over submerged lands underlying roughly one third of Lake Coeur d'Alene and portions of the St. Joe River because the United States recognized the Tribe's historical dependency on the fisheries supported by the lake when it included the submerged lands in the Tribe's reservation in 1873.(266)
V. SCOPE OF THE THIRD MONTANA EXCEPTION
Implicit in the Ninth Circuit's holding is that the Coeur d'Alene Tribe's inherent sovereignty extends over nonmember activity that directly affects or threatens Lake Coeur d'Alene and the St. Joe River. Applying the liberal canons of Indian treaty construction, the Ninth Circuit determined that the purpose of the reservation was to preserve the Tribe's historic dependency on Lake Coeur d'Alene and its fisheries.(267) By affirming the Ninth Circuit's decision and holding that the Coeur d'Alene Tribe is the beneficial owner of the lake bed,(268) the Supreme Court confirmed the basis for a third Montana exception. Although no court has explicitly accepted that there is a third Montana exception, the Ninth Circuit set forth the legal precedent in Puyallup Indian Tribe v. Port of Tacoma,(269) and reaffirmed in United States v. Idaho. Inherent tribal sovereignty extends to environmental and natural resource management for tribes, who are historically dependent on fishing and were granted reservations containing submerged lands prior to statehood.(270) The Coeur d'Alene Tribe's inherent sovereignty and federal law necessarily preempts Idaho's regulation of nonmember activities on roughly one-third of Lake Coeur d'Alene and portions of the St. Joe River.
A. Natural Resource Management
As a matter of inherent sovereignty, the Tribe may regulate on-reservation, nonmember activity affecting the Tribe's interest in fishing, hunting, timber, water, and other natural resource management as it affects or threatens Lake Coeur d'Alene and the St. Joe River. This includes the power to regulate nonmember fishing on the Lake.
1. Hunting and Fishing
The most important aspect of the third Montana exception may be its application in the hunting and fishing context. Many tribes have an historic dependency on fisheries, similar to the Coeur d'Alene. Under the third Montana exception, similarly situated tribes may be able to manage fisheries for the entire water body on their reservation. Now that the Coeur d'Alene Tribe has presumptive regulatory jurisdiction over Lake Coeur d'Alene and the St. Joe River, the Tribe can manage fisheries in a holistic manner. If the Tribe wants to limit or expand the non-Indian fishery for economic development or tourism, the Tribe has the inherent sovereignty to manage the Lake and River in accordance with the goals of the Tribal Council and the Tribal Natural Resources Division. The same can be said for hunting. The Tribe may wish to impose a licensing scheme or otherwise manage the fisheries and waterfowl in ways that restore populations to a level necessary to sustain its economy.
2. Timber Management
The third Montana exception may also have important impacts on timber management with regard to its impacts on the Lake and River. As owner of the submerged lands, the Tribe has de facto regulatory authority over timber management that affects the watershed. The Tribe may aggressively pursue an agreement with regional timber companies to reduce the runoff and environmental impacts of timber development on Lake Coeur d'Alene and the St. Joe River. Under this third Montana exception, the tribe can manage the reservation forests--including non-Indian fee lands--in accordance with tribal laws, without regard to the property rights limitations asserted by the Supreme Court.(271) As owner of the submerged lands, the Tribe may otherwise seek remedies in court under the common law of nuisance to prevent uncooperative non-Indian timber companies from harming the Lake or River's water quality and the reservation environment. Tribal control of timber management will also improve the reservation economy and the health and welfare of tribal members.(272)
3. Agriculture and Mining
Agriculture and mining are currently the two largest components of the tribal and regional economies.(273) Under the third Montana exception, the Tribe can extend its leasing program over reservation farmland and rangeland according to the goals established by the Tribal Council, rather than according to the Bureau of Indian Affairs (BIA).(274) The Tribe's ownership of the lake bed could have potentially dramatic impacts on agricultural and mining practices because runoff is a major problem from each of these land use practices.(275) The acid mine drainage brings toxic loads of silver and mercury to both the Lake and River; the farm runoff increases sedimentation and levels of dissolved oxygen.(276) Each of these has drastic impacts on the Lake's fisheries.(277) As owner of the lake bed, however, the Tribe has an even more significant role at the negotiating table to improve best management practices in the agriculture industry, in addition to a more timely, effective, and thorough mine reclamation throughout northern Idaho's Silver Valley.(278) In short, because Lake Coeur d'Alene is a dominant feature of the watershed, the third Montana exception may provide the Coeur d'Alene Tribe with the legal tools to achieve environmental restoration for the entire basin--something the State of Idaho currently lacks in political will.(279)
4. Economic Development
The Tribe can use Lake Coeur d'Alene as a tool of economic development by way of tourism, including development of thriving sport fisheries. As a sovereign landowner, the Tribe may choose to control access to the Lake and River through moorage fees and taxes. The Coeur d'Alene Tribe can regulate nonmember riparian activity and manage the riparian environment pursuant to goals set forth by the Tribal Council. The Tribe recently purchased the largest remaining stretch of undeveloped shoreline on Lake Coeur d'Alene, roughly 2.5 miles long and comprising 387 acres of timberlands.(280) The Tribe may undertake waterfront development, perhaps even build additional gaming operations on its newly adjudicated trust lands.(281) By controlling the lake bed, the Tribe has more options to pursue its plans to create a destination resort.(282) Whatever the Tribe chooses, its inherent sovereignty over the Lake--recognized under this proposed third Montana exception--allows it to pursue its own goals and fulfill the federal goal of self-determination.
B. Protecting Environmental Quality
The Coeur d'Alene Tribe has inherent tribal sovereignty over environmental management inside its reservation. This includes any nonmember activity on trust lands, submerged lands, fee lands, or that otherwise implicates the environmental health of Lake Coeur d'Alene or the St. Joe River.
1. Water Quality Management: TAS Status Under the Clean Water Act
The Coeur d'Alene Tribe now meets the jurisdictional requirements to qualify for TAS status under the Clean Water Act.(283) EPA should readily approve the Tribe's application. The Tribe can then move forward and set meaningful water quality standards to limit point source discharges from upstream polluters, including the mining companies. By combining its TAS authority with fisheries development and habitat protection on the Lake--including temperature and turbidity as separate criteria for its water quality standards--the Tribe may move forward to administer and issue permits for discharges into the Lake under the NPDES program.(284) The Tribe's water quality standards may also serve as a basis for setting the total maximum daily load (TMDL) for criteria pollutants in Lake Coeur d'Alene and its tributaries.(285) The TMDL determination will include non-point sources of water pollution that contribute to the impaired status of the Lake, such as pesticides and surface runoff from agricultural and silvicultural practices.(286) This aspect of the Clean Water Act could culminate with the Tribe's de facto regulation of non-Indian agriculture, timber development, and mining in the Lake Coeur d'Alene watershed.
2. TAS Status Under Other Federal Environmental Statutes
The Tribe should also qualify for primary administration of other federal environmental programs affecting the Coeur d'Alene Reservation.(287) EPA presumes that once a tribe qualifies for TAS status for one environmental protection program, the administrative and jurisdictional elements are met for administration of other programs.(288) The Tribe's water quality standards will become the baseline for assessing the extent of the natural resource damage claim for both settlement and cleanup standards under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(289) The Tribe probably qualifies for site-specific authority for underground storage tanks near the Lake and River under the Resource Conservation and Recovery Act of 1976.(290) The Tribe may also have a seat at the head of the table for mine reclamation.(291) The Coeur d'Alene Tribe may be able to regulate aspects of acid mine drainage under the Surface Mining Control and Reclamation Act(292) because of the direct impact acid mine drainage has on the health of Lake Coeur d'Alene. Finally, under the Clean Air Act,(293) the Tribe can address acid and mercury deposition from upwind polluters that may affect the Lake's water quality and the Reservation's air quality. Thus the Tribe will have nearly every environmental angle covered to improve the health of the Lake and River, and to protect the habitat necessary to sustain thriving fisheries.
The Coeur d'Alene Tribe has inherent sovereignty to regulate natural resources and environmental quality on its reservation, so long as that activity threatens or has a direct impact on Lake Coeur d'Alene or the St. Joe River, even if the activity occurs on submerged lands or fee lands. Other tribes that are historically dependent on fishing and that were granted reservations with submerged lands before statehood should also be recognized as satisfying this third Montana exception.(294) Moreover, tribes historically dependent on fisheries are the presumptive owners of submerged lands on Indian reservations that were created before statehood.(295) While states may regulate Indians for conservation purposes, so too can Tribes now directly regulate nonmember activity for conservation purposes on bedlands inside the reservation.
All federal courts should recognize that similarly situated tribes have inherent sovereignty over water quality management and habitat protection in reservation waters, under this third Montana exception. The equal footing doctrine and the liberal canons of Indian treaty construction define the parameters of this aspect of inherent tribal sovereignty, subject to further preemption or delegation of authority by Congress. The equal footing analysis necessarily limits application to bedlands inside reservations created before statehood. However, now under Idaho, there is a strong presumption that the tribe is the owner of the submerged lands, not the state. Similarly, the canons of Indian treaty construction must also be satisfied in the context of treaty negotiations and the understanding of the parties.
By controlling reservation waters, lands, and resources, Indian tribes can regain a degree of economic self-sufficiency necessary to Indian self-determination and can assert their sovereignty to protect the reservation environment. Perhaps most importantly, the Coeur d'Alene Tribe can bring its unmatched cultural and historical authority to settlement negotiations for cleaning up the Coeur d'Alene River Basin, now setting a much stronger tone with their newly bolstered credibility under the third Montana exception and achieving environmental restoration for the entire basin.
(1) The Supreme Court affirmed the Ninth Circuit's decision on June 18, 2001. Idaho v. United States, 121 S.Ct. 2135 (2001).
(2) Henry SiJohn, the late Coeur d'Alene tribal elder who served as a tribal council member and the council's environmental liaison, quoted in BOB BOSTWICK, ECOLOGY AND THE ENVIRONMENT (2000), at http://www.cdatribe.org/ecology.html (last visited May 17, 2001).
(3) Alfred Nomee, Natural Resources Director for the Coeur d'Alene Tribe, quoted in Julie Titone, Tribal Sovereignty: Protecting Tribal Interests, SPOKESMAN REV., Dec. 27, 2000, at A1.
(4) JEROME PELTIER, A BRIEF HISTORY OF THE COEUR D'ALENE INDIANS 1806-1809, at 14-18 (1982).
(5) Id.; LAWRENCE PALLADION S.J., THE COEUR D'ALENE RESERVATION AND OUR FRIENDS THE COEUR D'ALENE INDIANS 14-16 (Ye Galleon Press 1967) (1886).
(6) Telephone Interview with Phillip Cernara, Environmental Director, Coeur d'Alene Tribe, Natural Resources Department (Oct. 20, 2000) [hereinafter Coeur d'Alene Interview].
(7) In 1983, EPA listed the Bunker Hill Mining Site in Idaho's Silver Valley on the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) National Priorities List. 42 U.S.C. [subsections] 9601-9675, 9604(i)(2)(A) (1994 & Supp. III 1997). See generally United States v. ASARCO, 214 F.3d 1104 (9th Cir. 2000) (discussing the Bunker Hill Superfund Site); STRATUS CONSULTING, INC., REPORT OF INJURY ASSESSMENT AND INJURY DETERMINATION: COEUR D'ALENE BASIN NATURAL RESOURCE DAMAGE ASSESSMENT (CD ROM, rel. Sept. 2000) [hereinafter NATURAL RESOURCE DAMAGE ASSESSMENT].
(8) See ASARCO, 214 F.3d at 1104. The Bunker Hill Superfund Site is the second largest in the country, encompassing 1500 square miles, including the main stem Coeur d'Alene River, most of its tributaries, and Lake Coeur d'Alene. Id. at 1105.
(9) See United States v. ASARCO, 28 F. Supp. 2d 1170, 1175 (D. Idaho 1998), vacated, 214 F.3d 1104 (9th Cir. 2000). The United States joined the lawsuit against the mining companies to recover damages for injury to natural resources and to expand the geographic scope of the Bunker Hill Superfund Site. Id. at 1176-77.
(10) After the Ninth Circuit remanded a statute of limitations claim to the D.C. Circuit, the parties announced a tentative $250 million settlement agreement. Three Companies Will Pay $250M to Clean Idaho Mining Contamination, NATIVE AM. REP., July 28, 2000, at 145. The mining companies and the State of Idaho strongly support the agreement, which must still be approved by the Justice Department, Environmental Protection Agency (EPA), and the Tribe. Id. The Tribe's principal contention is that the settlement amount is not adequate to fund cleanup of the entire basin. The Tribe is also concerned about the settlement agreement because it links payment with the uncertain future value of silver. Coeur d'Alene Interview, supra note 6. See also Zaz Hollander, Cleanup Offer Gets a Mixed Reaction: Miners Favor Deal, While Tribe Takes a Wait-and-See Attitude, SPOKESMAN REV., July 10, 2000, at A1. As of March 2001, settlement negotiations for a basin-wide cleanup were still under way; Coeur d'Alene Mines Corp. settled its liability with EPA for four million dollars, cleanup assistance, and royalties in March 2001. Settlement Nears in EPA Case, IDAHO STATESMAN, Mar. 20, 2001, at 3.
(11) See Coeur d'Alene Tribe of Idaho v. Idaho, 798 F. Supp. 1443 (D. Idaho 1992), aff'd in part, rev'd in part, 42 F.3d 1244 (9th Cir. 1994), rev'd, 521 U.S. 261 (1997).
(13) Coeur d'Alene Interview, supra note 6.
(15) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).
(16) Id. [sections] 1377 (1994). In 1987, Congress directed EPA to allow Tribes to apply for TAS status under section 1377 of the Clean Water Act. Qualified tribes can apply to EPA for the authority to set water quality standards (WQS) and administer the National Pollution Discharge Elimination System (NPDES) permitting program. Id. (citing 33 U.S.C. [sections] 1313, 1342). EPA's criteria for tribes to obtain TAS status requires 1) that the tribe must be federally recognized, 2) have a governing body carrying out substantial governmental duties, 3) seek to administer the Clean Water Act for waters within the boundaries of the reservation, and 4) be capable of carrying out the program consistent with the goals of the Clean Water Act. Id.; see also 25 C.F.R. [sections] 131.8 (2000).
(17) Telephone Interview with Lisa Macchio, Water Quality Standards Specialist, EPA Region 10, Office of Water (Oct. 16, 2000) [hereinafter EPA Interview]. The Tribe wants its water quality standards approved so they can be used as a basis for the natural resource damage claim under the CERCLA settlement and for EPA use in establishing the total maximum daily load (TMDL) for pollutants in the Coeur d'Alene River. Id. When EPA sets a TMDL for a particular pollutant, EPA considers all of the WQS for each segment of an inter-jurisdictional water body before determining the TMDL for non-compliant criteria pollutants. Id. See generally Peter M. Lacy, Chapter, Addressing Water Pollution from Livestock Grazing After ONDA v. Dombeck, 30 ENVTL. L. 617, 627, 649-50 (discussing the TMDL process and the ability of TMDLs to address nonpoint source pollution).
(18) As of December 2000, the Tribe's application was still under review by EPA. EPA Interview, supra note 17.
(19) Exec. Order of Nov. 8, 1873, reprinted in 1 CHARLES KAPPLER, INDIAN AFFAIRS: LAWS AND TREATIES 837 (1904); see also Coeur d'Alene Tribe of Idaho v. Idaho, 798 F. Supp. 1443, 1452 n.5 (D. Idaho 1992), aff'd in part, rev'd in part, 42 F.3d 1244 (9th Cir. 1994), rev'd, 521 U.S. 261 (1997) (citing Act of March 3, 1891, 26 Stat. 989 (reciting an 1887 agreement and citing the reservation boundaries established by President Grant's 1873 executive order)); discussion infra Part IV.
(20) See discussion infra Part II.B.
(21) Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997).
(22) United States v. Idaho, 95 F. Supp. 2d 1094 (D. Idaho 1999), aff'd, 210 F.3d 1067 (9th Cir. 2000).
(23) United States v. Idaho, 210 F.3d 1067, 1069 (9th Cir.), aff'd, 121 S.Ct. 2135 (2001).
(24) Idaho v. United States, 121 S.Ct. 2135 (2001).
(25) See, e.g., Julie Titone, Tribal Sovereignty: Law of the Land, SPOKESMAN REV., Dec. 25, 2000, at A1 (discussing jurisdictional disputes over issues such as water distribution and land-use planning, where conflicts arise between the Tribe and the non-Indian residents on the reservation). Eighty-one percent of the Coeur d'Alene Tribe's 340,000 acre reservation is in private ownership. Id.
(26) General Allotment Act of 1887 (Dawes Act), 24 Stat. 388 (codified as amended at 25 U.S.C. [sections] 331-358 (1994)).
(27) For a discussion of the legacies of the Dawes Act and the Allotment Era, see Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995). The Allotment Era officially ended when Congress passed the Indian Reorganization Act of 1934, 25 U.S.C. [subsections] 461-479 (1994).
(28) 450 U.S. 544 (1981).
(29) Id. at 549. See generally Thomas H. Pacheco, Indian Bedlands Claims: A Need to Clear the Waters, 15 HARV. ENVTL. L. REV. 1, 23-32 (1991) (discussing Montana v. United States "and its aftermath").
(30) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1311 (1994) (recognizing and preserving state regulatory authority over water bodies within their jurisdiction); see also Andrea K. Leisy, Comment, Inherent Tribal Sovereignty and the Clean Water Act: The Effect of Tribal Water Quality Standards on Non-Indian Lands Located Both Within and Outside Reservation Boundaries, 29 GOLDEN GATE U. L. REV. 139, 146-51 (1999) (discussing jurisdictional disputes between tribes and states over water bodies in Indian country).
(31) Self-determination is the hallmark of federal Indian policy. See, e.g., Emma Gross, The Origins of Self-Determination Ideology and Constitutional Sovereignty, in NATIVE AMERICANS AND THE LAW: NATIVE AMERICAN SOVEREIGNTY 125 (John R. Wunder ed., 1996) (discussing the underlying philosophical justifications for establishing self-determination as the touchstone of federal Indian policy); see also Indian Self-Determination and Education Assistance Act, 25 U.S.C. [subsections] 450-450n, 455-458e, 458aa-458hh, 458aaa-458aaa-18 (1994 & Supp. V 1999). The principal goals of the Act include strengthening tribal governments and enhancing their ability to provide services to their people in their capacity as sovereign, self-determining governments. Id. [sections] 450f.
(32) U.S. ENVTL. PROT. AGENCY, EPA REGION 10 STRATEGIC PLAN FOR TRIBAL PROGRAMS (1999) ("The Agency is responsible for direct implementation of environmental protection programs where EPA has not approved a tribe to run a federal program."), available at http://yosemite.epa.gov/r10/tribal.NSF/ (last visited May 17, 2001). As of March 17, 2001, eighteen tribes--only three tribes in EPA Region 10 (Alaska, Idaho, Oregon, and Washington)--have approved water quality standards under the Clean Water Act. Kathleen Feehan, Environmental Coordinator of the Confederated Tribes of the Grande Ronde, Address at the Environmental Justice Conference at Northwestern School of Law of Lewis & Clark College (Mar. 17, 2001).
(33) In this Chapter, "nonmember" refers to any person on a reservation who is either a non-Indian, or an Indian who is not an enrolled member of the regulating tribe. See discussion infra note 44.
(34) See Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 422 (1989) ("We analyzed the effect of the Allotment Act on an Indian tribe's treaty rights to regulate activities of nonmembers on fee land in Montana v. United States."); Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ("As to nonmembers, we hold a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction ... The civil authority of tribes and their courts with respect to non-Indian fee lands generally `does not extend to the activities of nonmembers of the tribe.'" (quoting Montana, 450 U.S. at 565) (emphasis added)); Hinshaw v. Mahler, 42 F.3d 1178, 1181 (9th Cir. 1994) (pre-Strate decision holding tribal court had jurisdiction over nonmember reservation residents); see also Nancy Thorington, Civil and Criminal Jurisdiction Over Matters Arising in Indian Country: A Roadmap for Improving Interaction Among Tribal, State and Federal Governments, 31 MCGEORGE L. REV. 973 (2000) (advocating for increased tribal jurisdiction over nonmembers in tribal courts).
(35) See, e.g., Ann Tweedy, Comment, The Liberal Forces Driving the Supreme Court's Divestment and Debasement of Tribal Sovereignty, 18 BUFF. PUB. INT. L.J. 147 (2000) (examining the Supreme Court's substantial abandonment of a territorially based conception of Indian tribal sovereignty in favor of a consent-based approach); see also discussion infra Part III.
(36) See, e.g., United States v. Washington, 384 F. Supp. 312, 364-65 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975) (discussing the Makah Tribe's long history of whaling, marine economy, and lifestyle).
(37) See generally New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (discussing the United States's recognition of the Mescalero Apache Tribe's interest in game management and establishing tribal hunting regulations over non-Indians); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (discussing the importance of timber management on the Tribe's economic welfare); Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, 30 ENVTL. L. 279, 281-84 (2000) (discussing the historical and cultural importance of salmon to Pacific Northwest tribes).
(38) See, e.g., CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON, DECLARATION OF SOVEREIGNTY (1992) (on file with author) ("For millennia, Warm Springs people followed an elaborate structure of sovereign tribal responsibilities embodied in the Sahaptin phrase, tee-cha-meengsh-mee sin-wit na-me- ah-wa-ta-man-wit, which means `at the time of creation the Creator placed us in this land and He gave us the voice of this land and that is our law.'" (emphasis added)) [hereinafter WARM SPRINGS DECLARATION].
(39) See discussion infra Part III.C.
(40) United States v. Idaho, 210 F.3d 1067, 1069 (9th Cir. 2000) (quieting title to underlying portions of Lake Coeur d'Alene and the St. Joe River in the United States as trustee and the Coeur d'Alene Tribe as beneficial owner), aff'd, 121 S.Ct. 2135 (2001).
(41) "Indian country ... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities ..., and (c) all Indian allotments...." 18 U.S.C. [sections] 1151 (1994) (defining Indian country).
(42) For a classical dissertation on the meaning of inherent sovereignty, see FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 122 (1941) (explaining "powers [of] an Indian tribe are not ... delegated ... by Congress, but rather are inherent powers of a limited sovereignty which has never been extinguished").
(43) Indian Civil Rights Act of 1968, Pub. L. No. 90-284, tit. IV, 82 Stat. 78 (codified at 25 U.S.C. [subsections] 1321-1328 (1994)).
(44) Duro v. Reina, 495 U.S. 676, 679 (1990), overruled by statute, Criminal Jurisdiction Over Indians, Pub. L. No. 102-137, [sections] 1, 105 Stat. 646 (1991) (codified at 25 U.S.C. [sections] 1301(2), (4) (1994)).
(45) In Oliphant v. Suquamish Indian Tribe, Justice Rehnquist analogized a tribe's right to exclude and protect its members from non-Indian criminal activity with a private hunting club's right to keep nonmembers off its game lands, holding the Suquamish Tribe could not assert jurisdiction over non-Indians on their reservation. 435 U.S. 191, 205 (1978). Two weeks later, the Court issued a sloppy analysis that continues to plague civil jurisdiction to this day. Justice Stewart confused the Oliphant analysis and limited tribal criminal jurisdiction over nonmember Indians. United States v. Wheeler, 435 U.S. 313, 326 (1978). In Duro v. Reina, the Court reaffirmed its position that tribes cannot exert criminal jurisdiction over nonmember Indians because it conflicts with the democratic theory limiting government to the consent of the governed. Duro, 495 U.S. at 697. Congress disagreed and flatly rejected Duro in the 1990 Amendments to the Indian Civil Rights Act, restoring the tribes' historically-recognized inherent powers over all Indians in their territory. Criminal Jurisdiction Over Indians, Pub. L. No. 102-137, [sections] 1, 105 Stat. 646 (1991) (codified at 25 U.S.C. [sections] 1301(2), (4) (1994)). For civil jurisdiction under Montana, the Court initially couched its discussion in terms of tribal sovereignty over non-Indians, but then haphazardly analyzed the scope of jurisdiction in terms of nonmembers. 450 U.S. 544, 565-66 (1981). Then just one year after Montana, the Court rejected the consent-based theory that limited tribal sovereignty only to tribal members with regard to a tribe's power to tax. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 147 (1982). Justice Marshall wrote: "Indian sovereignty is not conditioned on the consent of a nonmember; to the contrary, the nonmember's presence and conduct on Indian lands are conditioned by the limitations the tribe may choose to impose." Id. at 147. In light of Merrion and the subsequent Duro-fix legislation it seems unlikely that Congress intended to deprive tribes of civil regulatory jurisdiction over nonmember Indians. This appears to be a mere oversight that the Court has misunderstood or ignored.
(46) See discussion infra Part II.B.
(48) 450 U.S. at 565.
(50) Id.; see also discussion infra Part II.C.
(51) Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 422-25 (1989) (holding Yakima Tribe did not have jurisdiction to regulate nonmember fee lands on the "open portion" of the reservation); Strate v. A-1 Contractors, 520 U.S. 438, 456 (1997) (holding tribe lacked regulatory and judicial jurisdiction over nonmembers involved in a car accident occurring on a North Dakota state-owned highway on the Fort Berthold Indian Reservation because the tribe lost its "gatekeeping right"); South Dakota v. Bourland, 508 U.S. 679, 697 (1993) (holding Cheyenne Sioux Tribe divested of its inherent sovereignty to regulate hunting and fishing on lands alienated to the United States and submerged by a dam); see also discussion infra Part II.C.
(52) 18 U.S.C. [sections] 1153 (1994).
(53) Id. [sections] 1152 (1994).
(54) U.S. CONST. art. I, [sections] 8, cl. 3 (granting Congress the power "to regulate Commerce ... with the Indian Tribes").
(55) See, e.g., 18 U.S.C. [sections] 1154 (1994) (criminalizing sales and distribution of alcohol in Indian country, but exempting fee lands and rights-of-way unless prohibited by treaty or statute). Section 1161 gives tribes power to make laws regarding liquor sales in "Indian country," which is defined as including "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." Id. [sections] 1161 (quoting 18 U.S.C. [sections] 1151 (1994)).
(56) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1377 (1994); see also Washington Dep't of Ecology v. EPA, 752 F.2d 1465, 1472 (9th Cir. 1985) (holding that absent independent state authority to regulate within Indian country, EPA retains regulatory jurisdiction on Indian lands).
(57) EPA Interview, supra note 17 (discussing how state and tribal water quality standards work on adjacent segments of water bodies).
(58) 33 U.S.C. [sections] 1377 (1994); see also U.S. Envtl. Prot. Agency, Policy for the Administration of Environmental Programs on Indian Reservations (1984), at http://www.epa.gov/indlan/1984.htm (last visited May 17, 2001) [hereinafter EPA INDIAN POLICY]. Principle 3 states "the agency will take affirmative steps to encourage and assist tribes in assuming regulatory and program management responsibilities for reservation lands." Id.
(59) Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) ("The laws of Georgia can have no force."). The Court scaled back its approach during the Termination Era, setting forth the infringement standard for determining permissible state jurisdiction in Indian country: "[A]bsent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 (1959).
(60) Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified at 18 U.S.C. [sections] 1262, 25 U.S.C. [subsections] 1321-1326, 28 U.S.C. [sections] 1360) (1994)).
(61) 18 U.S.C. [sections] 1162(a) (1994) (states have jurisdiction over "offenses committed by or against Indians in the areas of Indian country" to the extent that "the criminal laws ... shall have the same force and effect within such Indian country as they have elsewhere within the State").
(63) 28 U.S.C. [sections] 1360(a) (1994) (listing the Public Law 280 states and effected tribes). But cf. Bryan v. Itasca County, 426 U.S. 373, 391 (1976) (holding section 4 of Public Law 280 did not confer taxing authority to states, but simply reaffirmed the existing tribal-federal relationship and conferred "state-court jurisdiction to adjudicate private civil causes of action involving Indians." (emphasis added)).
(64) But compare state jurisdiction over non-Indian reservation residents introduced in part II infra and discussed throughout this Chapter.
(65) 18 U.S.C. [sections] 1165 (1994) (criminalizing unauthorized hunting, trapping, or fishing on Indian lands with fines or up to 90 days imprisonment per offense, as well as forfeiture of fish, game, and pelts).
(66) Id. [sections] 1162(b) ("Public Law 280 has no effect on Indian water rights or on the `control, licensing, or regulation' of Indian hunting, trapping, or fishing rights and privileges afforded under federal law." (emphasis added)).
(67) See, e.g., Puyallup Tribe v. Dep't of Game of Wash. (Puyallup I), 391 U.S. 392, 401 (1968) (suggesting Washington could regulate tribal harvests in the interest of conservation, if the measure did not discriminate against tribal harvests and was "reasonable and necessary" for conservation).
(68) Id. at 403.
(69) FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 354-57 (1982) (discussing state civil jurisdiction in Indian country); see also WILLIAM CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 444 (3d ed. 1998) (discussing state power to regulate hunting and fishing by non-Indians in Indian country in the absence of preemption by federal or tribal authority).
(70) U.S. CONST. art. I, [sections] 8, cl. 3 (granting Congress the plenary power "to regulate Commerce ... with the Indian Tribes"). In Montana, the Court noted that Congress has the power to grant or delegate jurisdiction to tribes over nonmembers, but such jurisdiction will not be presumed unless Congress makes express reference. 450 U.S. 544, 564 (1981).
(71) See generally Pollard's Lessee v. Hagan (Pollard), 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 1 (1893).
(72) Montana, 450 U.S. at 553.
(73) Id. at 551.
(74) Pollard, 44 U.S. at 221.
(75) U.S. CONST. art. IV, [sections] 3, cl. 2.
(76) Montana, 450 U.S. at 551-52 (citing Shively, 152 U.S. at 48).
(77) Id. at 552.
(78) United States v. Alaska, 521 U.S. 1, 34 (1997) (citing United States v. Holt State Bank, 270 U.S. 49, 55 (1926)). The Court reaffirmed the principles set out in Montana to determine if previous agreements by the United States overcame the presumption that title to submerged lands passes to states upon admission to the Union. The Court articulated a three-part test for reservations created by executive order: 1) whether executive actions reflected a clear intent to include submerged lands; 2) whether Congress authorized or ratified the executive action; and 3) whether Congress intended to defeat the future state's title to the submerged lands. Id. at 45-48; see also discussion infra Part IV.
(79) See Winters v. United States, 207 U.S. 564, 576-77 (1908) (applying the rule of treaty construction that ambiguities be resolved in favor of the Indians); see also COHEN, supra note 69, at 221-25. The canons of Indian treaty construction include: ii treaties be liberally construed to favor Indians; 2) ambiguous expressions be resolved in favor of the Indians; 3) treaties be construed as the Indians would have understood them. Id. at 221-22.
(80) Montana, 450 U.S. at 556.
(82) Id. at 563.
(83) Id. at 565.
(84) Id. at 564-65.
(85) Id. at 565 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).
(86) Id. at 566.
(87) Id. at 565.
(88) Id. (citing Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-54 (1980)). But cf. Atkinson Trading Co. v. Shirley, No. 00-454, slip op. at 8 (U.S. May 29, 2001) (holding the Navajo Nation lacked inherent sovereignty to tax nonmembers on fee lands). 89 Id. at 566.
(91) Id. at 566-67.
(93) See, e.g., Cardin v. De La Cruz, 671 F.2d 363, 366 (9th Cir.), cert. denied, 459 U.S. 967 (1982) (holding the Quinault Indian Tribe retained "inherent sovereign power to impose its building, health, and safety regulations on [a nonmember's] business, notwithstanding appellee's ownership in fee"); Confederated Salish & Kootenai Tribes of Flathead Reservation v. Namen, 665 F.2d 951,965 (9th Cir.), cert. denied, 459 U.S. 977 (1982) (upholding tribal authority to regulate the federal common-law riparian rights of non-Indians who owned fee lands bordering Flathead Lake, to which the Tribes had beneficial title); Lummi Indian Tribe v. Hallauer, 9 Indian L. Rep. 3025 (W.D. Wash. 1982) (upholding tribal sewer hook-up requirements under Montana's second exception).
(94) See, e.g., Knight v. Shoshone & Arapahoe Indian Tribes of Wind River Reservation, 670 F.2d 900, 904 (10th Cir. 1982) (holding tribal zoning ordinance applies to non-Indian reservation residents); Governing Council of Pinoleville Indian Cmty. v. Mendocino County, 684 F. Supp. 1042, 1045 (N.D. Cal. 1988) (holding Pinoleville Rancheria could impose a one-year moratorium on development, including non-Indian fee lands); Colville Confederated Tribes v. Cavenham Forest Indus., 14 Indian L. Rep. 6043 (Colville Tr. Ct. 1987) (upholding tribal zoning of non-Indian fee lands).
(95) See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME AND THE LAW 106-11 (1987) (discussing the required nexus with legitimate tribal interests); DAVID GETCHES ET AL., FEDERAL INDIAN LAW 199-200 (4th ed. 1998) (criticizing the Indian Reorganization Act of 1934 (IRA)). Although the IRA encouraged tribal governments and directly rejected assimilation, the statute resulted in boilerplate constitutions supplied by the Bureau of Indian Affairs (BIA), which were incompatible with many traditional tribal values. Id.; see also PROPERTY RIGHTS AND INDIAN ECONOMIES (Terry L. Anderson ed., 1991) (discussing the competing paradigms and stereotypes of Anglo-imposed individual property rights and traditional, customary Indian law as the basis for traditional, communal ownership and sovereignty). Tribal ideas of self-government include regulating concerns over land, air, water, gathering, hunting, and fishing. However, this traditional worldview based on usufructuary rights struggles to gain acceptance and may contradict the two Anglo-defined limits of self-government and imposed values of private property rights. Id.
(96) Montana listed four examples: "the power to punish tribal offenders, ... to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." 450 U.S. at 564. Nevertheless, a fair reading of this does not indicate that the Court intended this list to be an exhaustive list of tribal sovereignty because the Court went on to carve out the two exceptions. 450 U.S. at 565-66; see also Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408, 426 (1989).
(97) See discussion infra Part III.A.
(98) See supra note 51 and accompanying text.
(99) See, e.g., Kirke Kickingbird et al., Indian Sovereignty, in NATIVE AMERICANS AND THE LAW: NATIVE AMERICAN SOVEREIGNTY 1, 39 (John R. Wunder ed., 1996) (discussing tribal control over land and natural resources).
(100) 492 U.S. 408 (1989).
(101) Id. at 415. For purposes of jurisdictional analysis, the Court distinguished the open area of the Yakima Indian Reservation that was inhabited by many non-Indians and nonmembers since the Allotment Era, from the closed area of the reservation that was almost entirely owned by the Tribe and had not lost its "Indian character." Id.
(102) Id. at 422.
(103) Id. at 428 (White, J., plurality opinion).
(104) Id. at 429.
(105) Id. at 430.
(106) Id. at 431.
(107) Id. at 433.
(109) Id. at 437.
(110) Indian Reorganization Act of 1934, 25 U.S.C. [subsections] 461-479 (1994).
(111) See, e.g., COHEN, supra note 69, at 147-51 (discussing the purposes and implementation of the Indian Reorganization Act).
(112) Brendale, 492 U.S. at 441.
(113) Id. at 443-44.
(114) Id. at 443.
(115) Id. at 458 (quoting Montana v. United States, 450 U.S. 544, 566 (1981)) (Blackmun, J., dissenting).
(116) 508 U.S. 679 (1993).
(117) Id. (quoting Fort Laramie Treaty, Apr. 29, 1868, art. III, 15 Stat. 635, 2 KAPPLER 998, 999).
(118) Id. at 689 (citing Flood Control Act of 1944, 58 Stat. 889 (codified as amended at 16 U.S.C. [sections] 460d (1994)); Cheyenne River Act, Act of Sept. 3, 1954, 68 Stat. 1191 (codified as amended at 16 U.S.C. [sections] 460d (1994))).
(119) Id. at 691.
(120) See id. at 698 (dissenting opinion).
(121) Id. at 692.
(122) South Dakota v. Bourland, 39 F.3d 868, 870 (8th Cir. 1994).
(123) See COHEN, supra note 69, at 180 (self-determination policy treats tribes as "the basic government unit of Indian policy").
(124) 520 U.S. 438 (1997).
(125) Id. at 442.
(126) Id. at 453.
(126) Id. at 456.
(129) Id. at 456 (emphasis added).
(130) Id. at 458.
(131) Fisher v. Dist. Court, 424 U.S. 382, 386 (1976) (upholding tribal jurisdiction in an adoption proceeding); Williams v. Lee, 358 U.S. 217, 220 (1959) (upholding tribal jurisdiction for minor crimes of Indians); Mont. Catholic Missions v. Missoula County, 200 U.S. 118, 129 (1906) (upholding tribal tax of non-Indians); Thomas v. Gay, 169 U.S. 264, 283 (1898) (upholding tribal assessment tax of non-Indian fee lands).
(132) Strate, 520 U.S. at 458.
(133) Id. at 459 (quoting Montana, 450 U.S. at 564).
(134) See COHEN, supra note 69, at 186 (describing government shift to principles of self-determination as central to federal policy).
(136) President Nixon's Message to Congress Transmitting Recommendations for Indian Policy, H.R. Doc. No. 91-363, at 3 (1970).
(137) Exec. Order. No. 12,401, 48 Fed. Reg. 2309 (Jan. 14, 1983), amended by Exec. Order No. 12,442, 48 Fed. Reg. 43,283 (Sept. 21, 1983) (establishing self-determination as the guiding policy in federal Indian affairs).
(138) President Bush's Indian Policy Reaffirming the Government-to-Government Relationship Between the Federal Government and Tribal Governments (June 14, 1991), amended by Exec. Order. No. 13,084, 63 Fed. Reg. 27,665 (May 14, 1998) (President Clinton's executive order directing consultation and coordination with tribes in development of regulatory practices).
(139) See discussion infra note 287.
(140) See discussion infra notes 143-50 and accompanying text.
(141) 25 U.S.C. [subsections] 450-450n, 455-458e, 458aa-458hh, 458aaa-458aaa-18 (1994 & Supp. V 1999); see also United States v. Wheeler, 435 U.S. 313, 323 (1978) ("Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,209 (1978))).
(142) The Act was intended to assure "maximum Indian participation in the direction of ... Federal services to Indian communities." 25 U.S.C. [sections] 450(a) (1994).
(143) Pub. L. No. 103-413, 108 Stat. 4250 (codified as amended at 25 U.S.C. [subsections] 458-aahh (1994 & Supp. V 1999)) (requiring the Department of the Interior (DOI) to establish a "tribal self-governance" program, whereby tribes are awarded contracts to develop their own priorities and institutions to implement services previously provided by the Bureau of Indian Affairs (BIA), the Indian Health Services (IHS), or any other bureau in DOI that provides services to Indians).
(144) 25 U.S.C. [sections] 458aa (1994). "The present right of Indian tribes to govern their members and territories flows from a preexisting sovereignty limited, but not abolished, by their inclusion within the territorial boundaries of the United States." S. REP. NO. 100-274, at 3 (1987), reprinted in 1988 U.S.C.C.A.N. 2620, 2622 (emphasis added).
(145) See Hoopa Valley Tribe v. N. Area Manager, Bureau of Reclamation, No. 00-41-A slip. op. at 9 (IBIA Feb. 8, 2001) (citing Indian Self-Determination and Education Assistance Act Amendments of 1988, Pub. L. No. 100-472, 102 Stat. 2289).
(147) Secretarial Order No. 3215 (Apr. 28, 2000) (setting forth the principles for the Secretary of the Interior's trust responsibilities under the American Indian Trust Fund Management Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 423q (codified as amended at 25 U.S.C. [sections] 162a(d) (1994 & Supp. IV 1998))), at http://www.doi.gov/bia/ secorders/trustrespon.htm (last visited Oct. 14, 2000).
(148) EPA INDIAN POLICY, supra note 58. Principle 3 states that "the agency will take affirmative steps to encourage and assist tribes in assuming regulatory and program management responsibilities for reservation lands." See generally Stephen R. Ward & Jason B. Aamodt, An Essay: Thoughts About Tar Creek, Tribal Environmental Jurisdiction, and Natural Resource Restoration of Tribal Lands, in SOVEREIGNTY SYMPOSIUM 2000: A NEW JOURNEY I-1, 5-6 (2000).
(149) See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982) (stating that "limiting the tribes' authority to tax [based on the right to exclude] contradicts the conception that Indian tribes are domestic, dependent nations, as well as the common understanding that the sovereign taxing power is a tool for raising revenue necessary to cover the costs of government"). But cf. Atkinson Trading Co. v. Shirley, No. 00-454, slip op. at 8 (U.S. May 29, 2001) (applying the main rule from Montana to analyze and reject the Navajo Nation's tax of nonmembers on non-Indian owned fee lands).
(150) See, e.g., Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152 (1980) (stating that "the power to tax ... is a fundamental attribute of sovereignty"); Merrion, 455 U.S. at 141 (upholding Tribe's power to impose a severance tax on oil and gas production by non-Indian lessees); Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195, 201 (1985) (upholding tribal severance tax on non-Indian mineral lessees); Cotton Petroleum Corp. v. New Mexicol 490 U.S. 163, 173 (1989) (upholding tribal severance tax on non-Indian mineral lessees).
(151) Confederated Tribes of Colville Reservation, 447 U.S. at 158-59 (stating that taxes can be used for regulatory as well as revenue purposes).
(152) Id. at 152.
(153) Atkinson Trading Co. v. Shirley, 210 F.3d 1247, 1273 (10th Cir.) (non-Indian hotel owners challenging Navajo Taxing Council's authority to impose a hotel guest and occupancy tax under Montana's first exception), rev'd, No. 00-454, slip op. at 8 (U.S. May 29, 2001).
(154) See, e.g, Idaho v. United States, 121 S.Ct. 2135 (2001), affg United States v. Idaho, 210 F.3d 1067 (9th Cir. 2000); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 288 (1997) (dismissing Tribe's suit against Idaho to quiet title to Lake Coeur d'Alene); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 176 (1999) (holding that Minnesota could not bar a tribe from exercising off-reservation hunting and gathering rights because the rights were never extinguished).
(155) See infra notes 157-62 and accompanying text.
(156) See generally Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 440-57 (1998) (discussing the nature of treaty property rights in the United States v. Washington line of cases, beginning with the infamous Boldt decision in 1974, 384 F. Supp. 312 (W.D. Wash. 1974)).
(157) 198 U.S. 371 (1905).
(158) Id. at 378 (quoting Treaty with the Yakamas, June 9, 1855, art. 3, 12 Stat. 951, 953, 2 KAPPLER 698, 699).
(159) Id. at 381.
(160) Id. at 384.
(161) 443 U.S. 658 (1979).
(162) Id. at 687; see generally Blumm & Swift, supra note 156 (discussing the nature of the treaty tribes' property right to harvest fish).
(163) 526 U.S. 172 (1999).
(164) Id. at 176.
(165) 207 U.S. 564 (1908); see also COHEN, supra note 69, at 221-25 (discussing the canons of Indian treaty construction).
(166) See, e.g., COHEN, supra note 69, at 220-21 (discussing the judicial development of the United States's trust responsibility). A modern example of a government-to-government relationship is the fisheries allocation in the Pacific Northwest. The Columbia River Treaty Tribes annually negotiate with Oregon, Washington, and the United States for allocation of the salmon fisheries, with significant portions comprising the off-reservation fishing rights. United States v. Oregon, 699 F. Supp. 1456, 1459 (D. Or. 1988).
(167) See Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 411 (1989); discussion supra Part II.C.1.
(168) Brendale, 492 U.S. at 411; discussion supra note 101.
(169) See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997); discussion supra Part II.C.3.
(170) 492 U.S. at 464 (Blackmun, J., dissenting).
(171) United States v. Winans, 198 U.S. 371,381 (1905) (emphasis added).
(172) CANBY, supra note 69, at 72-79 (discussing judicial limitations and implicit divestment of tribal sovereignty because of the tribes' status as domestic dependent nations).
(173) 665 F.2d 951 (9th Cir. 1982).
(174) Id. at 952.
(175) 717 F.2d 1251 (9th Cir. 1983).
(176) Id. at 1261.
(177) See United States v. Idaho, 95 F. Supp. 2d 1094, 1098 (D. Idaho 1998) (reciting use of this test in Muckleshoot Indian Tribe v. Trans-Canada Enter., 713 F.2d 455, 457 (9th Cir. 1983)); Puyallup, 717 F.2d at 1260-61 (9th Cir. 1983) (holding that evidence supported the determination that the government intended to convey lands beneath the navigable river to the Tribe, and therefore, the Tribe retained title to the tract of land exposed by movement of the river); United States v. Aam, 887 F.2d 190, 198 (9th Cir. 1989) (holding that the Tribe failed to establish either that it depended upon fishing in the tidelands for survival or that it could be inferred that the United States intended to reserve the fisheries resources in the tidelands for the exclusive use of the Tribe); cf. United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1510-11 (9th Cir. 1991) (holding that tribal dependence on a river and the United States's recognition of that dependence was not enough to establish the federal intent to defeat state title and retain submerged lands for the benefit of the Tribe).
(178) 887 F.2d 190 (9th Cir. 1989).
(179) Id. at 198.
(180) Id. at 196-98.
(181) Id. at 198.
(182) 210 F.3d 1067 (9th Cir.), cert. granted, 121 S.Ct. 653 (2000).
(183) The district court applied the three-part Puyallup test, holding that the United States intended to include the lands underlying Lake Coeur d'Alene in the Coeur d'Alene
Tribe's Reservation. United States v. Idaho, 95 F. Supp. 2d 1094, 1098 (D. Idaho 1998). The Ninth Circuit affirmed the district court's use of the Puyallup test and also applied the two-prong test set forth by the Supreme Court in United States v. Alaska, 521 U.S. 1 (1997). The Supreme Court applied the Alaska test straight up, noting that the state of Idaho conceded the first prong of the test, namely that President Grant intended to include submerged lands in the Tribe's reservation in 1873. Idaho v. United States, 121 S.Ct. 2135, 2142-44 (2001). See discussion infra Part IV.
(184) COHEN, supra note 69, at 442-43 (discussing the origin and importance of aboriginal hunting and fishing).
(185) See discussion supra Part III.B. 1.
(186) 450 U.S. 544, 557 (1981).
(187) 508 U.S. 679, 697-98 (1993). On remand, the Eighth Circuit held that non-Indian hunting and fishing did not have a direct effect on the health and welfare of the Tribe and therefore the Tribe did not have jurisdiction. South Dakota v. Bourland, 39 F.3d 868, 870 (8th Cir. 1994)
(188) Northwest Res. Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375-78 (9th Cir. 1994) (describing the effects of Columbia River dams on the Basin's anadromous fishery resources); Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169, 172-73 (9th Cir. 1963) (holding State could not force treaty Indians to yield their own protected interests in order to promote the welfare of non-Indians); United States v. Fryberg, 622 F.2d 1010, 1015 (9th Cir. 1980) (holding State may not discriminate against treaty fishermen); United States v. Washington, 520 F.2d 676, 686 (9th Cir. 1975) (holding State must restrict non-Indian fishermen before imposing conservation laws on treaty fishermen).
(189) See Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right, 30 ENVTL. L. 279, 280-82 (2000) (explaining the importance of tribes being able to manage the resources upon which their rights to hunt, fish, trap, and gather depend).
(191) 137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998).
(192) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387, 1377 (1994).
(193) See Albuquerque v. Browner, 97 F.3d 415, 429 (10th Cir. 1996) (upholding facial challenge to TAS provision in section 1377 of the Clean Water Act on remand), cert. denied, 522 U.S. 965 (1997); see also Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288 (D.C. Cir. 2000) (upholding a challenge to the Clean Air Act's TAS provision, Clean Air Act, 42 U.S.C. [subsections] 7401-7671q, 7601(d)(1)(A) (1994 & Supp. III 1997)), cert. denied, 69 U.S.L.W. 3346 (U.S. Apr. 16, 2001); discussion infra note 287 (discussing all environmental statutes containing a TAS provision).
(194) Montana v. EPA, 137 F.3d at 1140.
(195) 40 C.F.R. [sections] 131.8 (2000); see discussion of Clean Water Act's four TAS elements supra note 16.
(196) Montana v. EPA, 137 F.3d at 1141.
(197) 9 Indian L. Rep. 3025 (W.D. Wash. 1982).
(199) Kickingbird, supra note 99, at 39 (discussing tribal control over land and natural resources); see also Indian Mineral Leasing Act of 1938, 25 U.S.C. [subsections] 396-401 (1994 &(190) Id.
(191) 137 F.3d 1135 (9th Cir.), cert. denied, 525 U.S. 921 (1998).
(192) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387, 1377 (1994).
(193) See Albuquerque v. Browner, 97 F.3d 415, 429 (10th Cir. 1996) (upholding facial challenge to TAS provision in section 1377 of the Clean Water Act on remand), cert. denied, 522 U.S. 965 (1997); see also Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288 (D.C. Cir. 2000) (upholding a challenge to the Clean Air Act's TAS provision, Clean Air Act, 42 U.S.C. [subsections] 7401-7671q, 7601(d)(1)(A) (1994 & Supp. III 1997)), cert. denied, 69 U.S.L.W. 3346 (U.S. Apr. 16, 2001); discussion infra note 287 (discussing all environmental statutes containing a TAS provision).
(194) Montana v. EPA, 137 F.3d at 1140.
(195) 40 C.F.R. [sections] 131.8 (2000); see discussion of Clean Water Act's four TAS elements supra note 16.
(196) Montana v. EPA, 137 F.3d at 1141.
(197) 9 Indian L. Rep. 3025 (W.D. Wash. 1982).
(199) Kickingbird, supra note 99, at 39 (discussing tribal control over land and natural resources); see also Indian Mineral Leasing Act of 1938, 25 U.S.C. [subsections] 396-401 (1994 & Supp. IV 1998) (establishing uniformity in mineral leasing laws governing Indian lands and promoting tribal economic development); Indian Mineral Development Act of 1982, 25 U.S.C. [subsections] 2101-2108 (1994) (expanding the economic development of all Indian mineral resources by encouraging tribes to enter into joint ventures with mining companies).
(200) Indian Energy Resources Act of 1992, 25 U.S.C. [subsections] 3501-3506(e) (1994 & Supp. IV 1998) (section 3505(a) establishes the Indian Energy Resource Commission to oversee taxation, management, and development incentives).
(201) See discussion supra Part III.B.2.
(202) See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137-38 (1982) (upholding tribal taxation of oil and gas leases despite its regulatory impacts on non-Indian activity because the non-Indians benefited "from the provision of police protection and other governmental services, as well as from 'the advantages of a civilized society' that are assured by the existence of tribal government").
(203) Burlington N. R.R. v. Blackfeet Tribe, 924 F.2d 899, 904 (9th Cir. 1991) (upholding tribal power to tax a railroad's on-reservation rights-of-way based on the Tribe's continuing property interest), overruled by Big Horn County Elec. Coop. v. Adams, 219 F.3d 944 (9th Cir. 2000); Alyeska Pipeline Serv. Co. v. Kluti Kaah Native Vill., 101 F.3d 610, 612 (9th Cir. 1996) (holding native village lacked power to tax non-Indian lessees because the property was not Indian country and "[t]he authority of a Native community to tax non-members derives from the status of the land occupied by the community"). Burlington was overruled by Big Horn County, which applied Montana and held that the Crow Tribe lacked jurisdiction to regulate non-Indian rights-of-way. 219 F.3d at 953.
(204) See discussion supra notes 93-98 and accompanying text. See generally BRIAN EDWARD, RELIGION LAW AND THE LAND (1999) (discussing the judicial erosion of tribal protection of sacred land).
(205) 229 F.3d 1210 (9th Cir. 2000).
(206) Id. at 1223; see also EDWARD, supra note 204, at 119, 149-70 (criticizing Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 558 (holding Tribe unable to protect its religious sites inside National Forest System lands because First Amendment's Free Exercise clause did not prohibit the Forest Service from permitting timber harvesting and road building in disputed area), rev'g 795 F.2d 688 (9th Cir. 1986).
(207) Bugenig, 229 F.3d at 1220 (quoting County of Lewis v. Allen, 163 F.3d 509, 515 (9th Cir. 1998) (en banc)).
(209) Id. at 1220 (quoting Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997)).
(210) Id. (quoting Strate, 520 U.S. at 458).
(211) Id. at 1221.
(213) Id. at 1222 (citing Montana v. EPA, 137 F.3d 1135, 1141 (9th Cir. 1998)) (upholding tribal water quality standards, despite their regulatory impact on non-Indians).
(215) Id. at 1222-23.
(216) Id. at 1223 (citing Nevada v. Hicks, 196 F.3d 1020, 1027 (9th Cir. 1999)).
(217) Wilson v. Marchington, 127 F.3d 805, 813-14 (9th Cir. 1997); Big Horn County Elec. Coop v. Adams, 219 F.3d 944, 955 (9th Cir. 2000).
(218) 127 F.3d at 815.
(219) Id; see discussion, supra Part III.A.1.
(220) 219 F.3d 944 (9th Cir. 2000).
(221) Id. at 950.
(222) The cooperative had a commercial relationship with the Tribe, serving over 1700 members on the Crow Reservation. However, the Ninth Circuit reasoned that even with a consensual relationship, the first Montana exception does not grant a tribe unlimited jurisdiction over nonmembers, but rather limits tribal jurisdiction to regulation of the activities of nonmembers. Id. at 951. The court distinguished the Tribe's ad valorem tax as a tax on the property owned by nonmembers--not a tax of nonmember activities-- and therefore the tax did not fall within Montana's first exception. Id. The court also rejected the tribal tax under the second Montana exception, noting that the second exception only allows a tribe to do "what is necessary to protect tribal self-government or to control internal relations." Id. The Ninth, Circuit reasoned that allowing the tax to fall under the second Montana exception would swallow the main rule in Montana because any tribal tax would be upheld--a result the Supreme Court has never endorsed and one which conflicts with the Court's limited view of tribal sovereignty. Id. The court was not persuaded by the Tribe's argument that essential tribal services would be scaled back, noting that "the Tribe is free to adopt a different tax scheme that complies with Montano." Id.
(223) 196 F.3d 1020 (9th Cir. 1999), rev'd, 121 S.Ct. 2304 (2001).
(224) Id. at 1022.
(225) Nevada v. Hicks, No. 99-1994, slip op. at 10-11 (U.S. June 25, 2001). Writing for the Hicks majority, Justice Scalia made great efforts to clarify that the "holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law.... leav[ing] open the question of tribal-court jurisdiction over nonmember[s] ... in general." Id. at 4, n.2. Nevertheless, Hicks has potentially far-reaching negative implications for the assertion of tribal jurisdiction over nonmembers. See id. at 1 (O'Connor, J., concurring).
(226) Coeur d'Alene Tribe of Idaho v. Idaho, 798 F. Supp. 1443, 1445 (D. Idaho 1992), aff'd in part, rev'd inpart, 42 F.3d 1244 (9th Cir. 1994), rev'd, 521 U.S. 261 (1997).
(227) Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,287-88 (1997).
(228) United States v. Idaho (Idaho), 210 F.3d 1067, 1073-74 (9th Cir. 2000), aff'd, 121 S.Ct. 2135 (2001).
(229) Idaho v. United States, 121 S.Ct. 2135 (2001).
(230) Coeur d'Alene Tribe of Idaho, 521 U.S. at 264.
Through the millennia, Mother Earth was the employer. Coeur d'Alene Indians earned their livings through what was provided in nature: lakes and streams churning with trout and salmon; forests complete with elk, moose and deer, mountains and meadows with huckleberries and camas roots, wetlands with waterfowl and water potatoes. These and many more natural resources remained at close reach, and all, along with human beings, part of one life on earth.
Bob Bostwick, Coeur d'Alene Tribe--The Land, at http://www.cdatribe.org/ reservation.html (last visited Apr. 23, 2000).
(233) Exec. Order of Nov. 8, 1873, reprinted in i KAPPLER, supra note 19, at 837. The Coeur d'Alene Reservation covers 345,000 acres in North Idaho, spanning the rich Palouse farm country and the western edge of the northern Rocky Mountains. The Reservation includes the Coeur d'Alene and St. Joe Rivers, and Lake Coeur d'Alene. The "shadowy St. Joe" is one of North America's premier trout streams, flowing from the Idaho-Montana line down to the south end of Lake Coeur d'Alene. The lower St. Joe is the highest navigable stream in the world, and a waterway for the tugboats that push giant log booms to lumber mills along the Spokane River far to the north. The Coeur d'Alene River, meanwhile, would be equally beautiful; however, it still suffers desperately from heavy metal pollution from silver mining. Bostwick, supra note 232.
(234) Idaho, 210 F.3d at 1073 (citing Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1257 (9th Cir. 1983)).
(235) Id.; see also discussion supra Part II.B.
(236) 521 U.S. 1 (1997).
(237) Idaho, 210 F.3d at 1073 (quoting Alaska, 521 U.S. at 36). Although the Ninth Circuit applied the Supreme Court's test, it also cited to the Puyallup test but declined to apply that three-part test because Idaho had conceded that the 1873 executive order intended to convey the submerged lands to the Tribe. Id. The Supreme Court applied the Alaska test straight up. Idaho v. United States, 121 S.Ct. 2135, 2142-44 (2001).
(238) Exec. Order of Jun. 14, 1867, reprinted in 1 KAPPLER, supra note 19, at 836.
(239) Idaho, 210 F.3d at 1070.
(242) Exec. Order of Nov. 8, 1873, reprinted in 1 KAPPLER, supra note 19, at 837.
(243) See United States v. Idaho, 95 F. Supp. 2d 1094, 1096 (D. Idaho 1998), aff'd, 210 F.3d 1067, 1070 (9th Cir. 2000) (both opinions discussing the requirement of congressional approval of the 1873 Executive Order Reservation).
(244) Idaho, 210 F.3d at 1070-71 (citing Act of May 15, 1886, 24 Stat. 29 (authorizing negotiations for cession of lands outside the 1873 reservation); Act of March 2, 1889, 25 Stat. 980 (authorizing negotiations for purchasing non-agricultural portions of the reservation to which the Tribe would consent)).
(245) Act of March 3, 1891, 26 Stat. 989 (reciting the 1887 agreement and citing the 1873 reservation boundaries).
(246) Idaho Admission Bill, Act of July 3, 1890, 26 Stat. 215.
(247) Idaho, 210 F.3d at 1073.
(248) The district court concluded that the executive actions reflected a clear intent to include the submerged lands within the 1873 Reservation. United States v. Idaho, 95 F. Supp. 2d 1094, 1098-99 (D. Idaho 1998). The state of Idaho conceded this point on appeal. Idaho, 210 F.3d at 1073.
(250) Id. (citing United States v. Alaska, 521 U.S. 1, 36 (1997)).
(251) Alaska, 521 U.S. at 36.
(252) Idaho, 210 F.3d at 1074-75. The Supreme Court distinguished the United States's purpose in creating a reservation for the Coeur d'Alene Tribe from that of the Crow Tribe in Montana v. United States, 450 U.S. 544, 556 (1981). Idaho v. United States, 121 S.Ct. 2135, 2143 (2001) (comparing Montana, where the Court held that there was "no [federal] intent to include submerged lands within a reservation where the [Crow] tribe did not depend on fishing or use of navigable water"). The Idaho Court found persuasive the fact that the Coeur d'Alene Tribe was dependent on the lake and its tributaries because during negotiations the Tribe repeatedly emphasized that it continued to depend on fishing. Id. at 2143-44.
(253) Idaho, 210 F.3d at 1075.
(254) Id. at 1073.
(255) Id. at 1072.
(257) Id. at 1076.
(258) Id. (citing United States v. Aam, 887 F.2d 190, 195, 197 (9th Cir. 1990) (holding the focus is not "what the `United States' or the `government' knew as of the initial reservation")).
(259) Id. at 1077.
(260) Id. (quoting Act of March 2, 1889, 25 Stat. 980, 1002).
(262) Id. at 1078 (citing Idaho Admission Bill, Act of July 3, 1890, 26 Stat. 215; IDAHO CONST. art. XXI, [sections] 19).
(263) Id. at 1078-79.
(264) Id. at 1079 (citing Harrison Act of 1894, 28 Stat. 322, 322-23).
(266) Id. at 1075-76.
(267) Id., aff`d, Idaho v. United States, 121 S.Ct. 2135, 2143-44 (2001) (restating the importance of fisheries to the Coeur d'Alene Tribe and the submerged lands because the Tribe used fishing weirs and traps).
(269) See discussion supra Part III.C. 1.
(270) See, e.g., WARM SPRINGS DECLARATION, supra note 38. "We declare the existence of this inherent sovereign authority--the absolute right to govern, to determine our destiny, and to control all persons, land, water, resources and activities, free of all outside interference--throughout our homeland and over all our rights, property, and people, wherever located." Id.
(271) Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1223 (9th Cir. 2000), held that the Hoopa Valley Tribe can not manage fee lands located inside forests on the Tribe's reservation because of the property-rights limitations asserted by the Supreme Court under the second Montana exception. In contrast, the management of reservation forests--including fee lands--would likely be upheld under the third Montana exception. See also discussion supra Part III.C.5. The National Indian Forest Resources Management Act, 25 U.S.C. [subsections] 3101-3120 (1994 & Supp. IV 1998), directs the Secretary of Interior to comply with tribal laws in the sustained yield management of Indian forest lands. Id. [sections] 3108 (1994). Nevertheless, the Secretary is presumably limited to follow tribal laws only to the extent that the tribe has jurisdiction, which under the Bugenig analysis would preclude non-Indian fee lands. In contrast, inherent tribal sovereignty under the third Montana exception avoids this strict construction of tribal regulatory authority and provides tribes with the ability to manage forest lands in a holistic manner, or however tribes see fit.
(272) See, e.g., Matthew B. Krepps, Can Tribes Manage Their Own Resources? The 638 Program and American Indian Forestry, in What Can Tribes Do?, in STRATEGIES AND INSTITUTIONS IN AMERICAN INDIAN ECONOMIC DEVELOPMENT 179, 179-203 (Stephen Cornell & Joseph P. Kalt eds., 1995). Based on a statistical study of more than seventy tribes that have overtaken some control of on-reservation forestry operations and the ISDEAA Amendments of 1994 provisions pertaining to tribal management of reservation governmental services, including natural resource management, as tribal control increases relative to BIA control, worker productivity increases, costs decrease, and income and prices for logs improve. Id.
(273) Coeur d'Alene Interview, supra note 6.
(274) Although the American Indian Agricultural Resources Management Act of 1993, 25 U.S.C. [subsections] 3701-3745 (1994 & Supp. IV 1998), is intended to increase tribal control over agriculture, the Secretary maintains ultimate discretion in carrying out the plans and conditions of the leases. Id. [sections] 3711 (1994). Under the third Montana exception, tribes can exert their sovereignty over agricultural lands as they see fit.
(275) Coeur d'Alene Interview, supra note 6.
(276) See generally NATURAL RESOURCE DAMAGE ASSESSMENT, supra note 7.
(278) Becky Kramer, EPA Chief Asked to Stay Out of Log Yard: St. Maries Parties Say They'll Clean Seeping Creosote Without Superfund, SPOKESMAN REV., March 16, 2001, at B1 (discussing the Tribe's backing of EPA's proposal to put a contaminated log yard on the Superfund list because "creosote [is] entering the surface waters of the Coeur d'Alene Reservation").
(279) Coeur d'Alene Interview, supra note 6.
(280) Julie Titone, Tribe Purchases Last Big Piece of Lake Property, SPOKESMAN REV., Jan. 9, 2001, at Al.
(281) Under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. [subsections] 2701-2721 (1994 & Supp. IV 1998), tribes have an inherent right to conduct Class III gaming operations under a tribal-state compact on trust lands acquired before October 17, 1988. Id. [sections] 2719(a) (1994). The IGRA expressly recognizes that Tribes can also operate Class III gaming operations on newly acquired lands within or contiguous to existing trust lands, or to lands taken into trust as part of a settlement of a land claim, the initial reservation for a tribe completing the federal acknowledgment process, or the restoration of lands for a tribe restored to recognition. Id. [sections] 2719(b)(1)(B). Presumably the lake bed falls under this provision because the Ninth Circuit held that these lands were part of the reservation as early as 1873. United States v. Idaho, 210 F.3d 1067, 1073 (9th Cir. 2000). Despite resistance from the Idaho Senate, the Tribe is in the process of renegotiating its tribal-state gaming compact with Governor Kempthorne to expand its Class III gaming operations. Ken Miller, Senate Kills Tribal Gaming Compacts Vote Shifts Issue of Tribes' `Gaming Devices' to State, IDAHO STATESMAN, Mar. 27, 2001, at 1.
(282) The Tribe has plans to expand its casino and hotel by adding an outdoor arena, a recreational-vehicle park, a theme park, a golf course, and a water park. Kim Crompton, Cd'A Tribe Ups Ante at its Resort, J. Bus-SPOKANE, Feb. 22, 2001, at Al. The projects are part of the Tribe's aggressive plan to create a destination resort. Id.
(283) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387, 1377 (1994).
(284) Id. [sections] 1342.
(285) Id. [sections] 1313(d)(1)(A)-(B); 40 C.F.R. [sections] 130.7 (1999); see also Lacy, supra note 17, at 6271 649-50 (discussing how the TMDL process can address non-point source pollution and improve water quality).
(286) 33 U.S.C. [sections] 1313(d); see also Lacy, supra note 17, at 627, 649-50.
(287) The following is a short introduction of environmental statutes that contain a TAS provision: 1) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1377 (1994); 2) Clean Air Act, 42 U.S.C. [sections] 7410(a) (1) (1994) (allowing tribes to develop tribal implementation plans for the "implementation, maintenance, and enforcement" of reservation air quality standards); 3) Safe Drinking Water Act, 42 U.S.C. [sections] 300j-11(a) (1994) (authorizing EPA to treat tribes as states for assuming primary enforcement responsibility for both public water systems and underground injection control programs); 4) Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. [sections] 1235(k) (1994) (providing for tribes to be treated as states under the abandoned mine reclamation program); 5) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [sections] 9626 (1994) (providing that a tribal government "shall be afforded substantially the same treatment as a State" including notification of releases, consultation on remedial actions, access to information, roles and responsibilities under the national contingency plan, and submittal of priorities for remedial action); and 6) Oil Pollution Act of 1990, 33 U.S.C. [sections] 2706(b)(4) (1994) (authorizing tribes to designate a trustee for natural resource damage assessments from oil pollution and to implement a plan for restoration, rehabilitation, and replacement of the resources). Other environmental statutes providing tribes with varying degrees of authority, but not containing a TAS provision include the following: 1) Hazardous Materials Transportation Uniform Safety Act, 49 U.S.C. [sections] 5112(a)(2)(A) (1994) (providing that Indian tribes "may establish, maintain, and enforce ... highway routes" within their jurisdiction in accordance with federal regulations for the transportation of hazardous materials); 2) Resource Conservation and Recovery Act of 1976, 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992) (allowing tribes to apply for administrative authority on a site-specific basis, see infra note 289); and 3) Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [sections] 136u(a)(1) (1994) (authorizing EPA to enter into cooperative agreements with Indian tribes to enforce pesticide use violations and to train and certify pesticide applicators).
(288) See Amendments to the Water Quality Standards Regulation That Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876 (Dec. 12, 1991) (codified at 40 C.F.R. pt. 131) (discussing EPA's policy of presuming TAS qualification for all federal environmental statutes that contain a TAS provision, once a tribe meets the qualifications for any of the statutes).
(289) 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).
(290) 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997). Although RCRA does not contain a TAS provision for administrative authority over the entire reservation, tribes may be approved for site-specific authority. See, e.g., Backcountry Against Dumps v. EPA, 100 F.3d 147, 152 (D.C. Cir. 1996).
(291) Kramer, supra note 278, at B1.
(292) 30 U.S.C. [subsections] 1201-1328 (1994 & Supp. IV 1998). Section 1235(k) provides for tribes to be treated as states under the abandoned mine reclamation program; however, tribes have not been delegated authority to assume general surface mining regulatory programs. Id. [sections] 1235(k).
(293) 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997).
(294) There may also be other natural resource analogies beyond the scope of this paper. For example, treaty tribes in the Pacific Northwest may be able to take over primacy of management of the salmon fishery and on-reservation implementation of section 4(d) of the Endangered Species Act. Endangered Species Act of 1973, 16 U.S.C. [sections] 1533(d) (1994) (authorizing the Secretary to issue regulations for endangered species protection through cooperative agreements with states). Similarly, tribes with treaty-reserved fishing rights should have co-management authority over all hydrologically connected riparian lands in the watershed under the TAS provision in the Clean Water Act. Federal Water Pollution Control Act, 33 U.S.C. [sections] 1377 (1994); see, e.g., Goodman, supra note 37 (discussing co-management rights). Commentators may also want to explore the potential application of the third Montana exception for tribes in other regions. For example, Plains tribes have inherent sovereignty to manage natural resources and environmental quality on reservations created before statehood based on the Plains tribes' historic dependency on buffalo. The third Montana exception may provide a basis for prairie restoration and meaningful buffalo reintroduction programs. 295 The following tribes comprise a partial list of historically dependent fishing tribes within the Ninth Circuit's Jurisdiction that have had title to submerged lands within their reservations favorably adjudicated: 1) Confederated Salish and Kootenai Tribes of the Flathead Reservation (Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Namen, 665 F.2d 951 (9th Cir. 1982)); 2) Puyallup Tribe (Puyallup v. Port of Tacoma, 717 F.2d 1251 (9th Cir. 1983)); 3) Lummi Tribe (United States v. Romaine, 255 F. 253 (9th Cir. 1919)). Commentators and tribal attorneys should look at the following treaties executed prior to statehood between the United States and fishing tribes and thus contain a strong presumption of inherent tribal sovereignty over environmental and natural resource management through this third Montana exception: 1) Treaty with the Cow Creek Indians (Treaty of Cow Creek), Sept. 19, 1853, l0 Stat. 1027, 2 KAPPLER 606 (Cow Creek Band of Umpqua Indians); 2) Treaty with Nisquallys (Treaty of Medicine Creek), Dec. 26, 1854, l0 Stat. 1132, 2 KAPPLER 661 (Nisqualli, Squaxin, and Puyallup Tribes); 3) Treaty with the Makah Tribe (Treaty of Neah Bay), Jan. 31, 1855, 12 Stat. 939, 2 KAPPLER 682 (Makah Tribe); 4) Treaty with the Dwamish (Treaty of Point Elliot), Jan. 22, 1855, 12 Stat. 927, 2 KAPPLER 669 (Suquamish, Snoqualmie, Snohomish, Stillaquamish, Swinomish, Skagit, and Lummi Tribes); 5) Treaty with the S'Klallams (Treaty of Point no Point), Jan. 26, 1855, 12 Stat. 933, 2 KAPPLER 674 (Port Gamble S'Klallam, Jamestown S'Klallam, Skokomish, Lower Elwha Klallam); 6) Treaty with the Walla-Wallas, June 9, 1855, 12 Stat. 945, 2 KAPPLER 694 (Confederated Tribes of the Umatilla Reservation), 7) Treaty with the Yakimas, June 9, 1855, 12 Stat. 951, 2 KAPPLER 698 (Confederated Tribes and Bands of the Yakama Nation of the Yakama Indian Reservation); 8) Treaty with the Nez Perce, June 11, 1855, 12 Stat. 957, 2 KAPPLER 702 (Nez Perce Tribe); 9) Treaty with Indians in Middle Oregon (Treaty of Wasco), June 25, 1855, 12 Stat. 963, 2 KAPPLER 714 (Confederated Tribes of the Warm Springs Reservation); 10) Treaty with the Quinaielts (Treaty of Olympia), July 1, 1855, 12 Stat. 971, 2 KAPPLER 719 (Quinault and Quileute Tribes).
H. SCOTT ALTHOUSE, Managing Editor, Environmental Law, 2001-2002; J.D. and Certificate in Environmental and Natural Resources Law expected 2002, Northwestern School of Law of Lewis & Clark College; B.A. 1999, summa cum laude, Eastern College (Environmental Studies and Political Science). The author thanks Peter "Mac" Lacy, 2000-2001 Ninth Circuit Review Editor, Environmental Law, for his tireless editing and encouragement.