Under section 518 of the Clean Water Act (CWA), qualified tribes may assume regulatory authority over various CWA programs. Despite the demonstrated benefits to tribal interests, many tribes have as yet to take on the full mantle of regulatory authority. This is due in part to the jurisdictional conflicts that arise when tribal regulation of reservation water resources affects nontribal members who own land or live within reservation boundaries. In an effort to mediate between these competing interests, the Environmental Protection Agency (EPA) has determined that prior to asserting regulatory authority over reservation waters, a tribe must demonstrate that such authority falls within the scope of its inherent sovereign power. This interpretation of the force and intended operation of section 518 was recently upheld by the Ninth Circuit in Montana v. Environmental Protection Agency. In so doing, the court resolved a decade‑long controversy over the Confederated Kootenai and Salish Tribes’ authority to set water quality standards within the Flathead Reservation in western Montana. However, in summarily deferring to EPA’s legal interpretation, the court did little to resolve the jurisdictional conflicts that have historically undermined tribal authority. This Chapter assesses both the Ninth Circuit’s approach to the doctrine of inherent sovereignty as it relates to water quality regulation and the court’s failure to recognize section 518 as a direct delegation of tribal regulatory authority. Ms. Cutler concludes that the Ninth Circuit avoided an invaluable opportunity to substantiate the legal basis of tribal authority over environmental programs on reservation lands. Continued tribal advancement in the area of environmental regulation will thus depend not on law, but rather on the extent to which EPA continues to advance an Indian policy favoring tribal regulatory authority and self‑determination.

I. INTRODUCTION

May 1998. It is spring and the children have come to the river; one thousand fourth‑, fifth‑, and sixth‑grade reservation school students have thrown down their books to gather on the banks of the Flathead River in western Montana to see, smell, touch, and celebrate. They are children of the Flathead Indian Reservation and this is their river, their water, their heritage. It is also now their responsibility.

The children went to the river to learn the importance of waterways to the Salish, Kootenai, and Pend d’Orielle Tribes and to learn about the natural environment of the Flathead Indian Reservation.[1] These lessons are, in one sense, about erosion and sedimentation, forest ecology, and low‑impact camping. In another sense, they are the first steps towards stewardship of the river and other water resources within the Flathead Reservation. In 1995, the United States Environmental protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes “treatment as a state” (TAS) status under the Clean Water Act (CWA),[2] authorizing the tribe to set water quality standards for all navigable waterways within the reservation.[3] The United States Court of Appeals for the Ninth Circuit recently upheld that grant of authority in a landmark case in the field of tribal civil jurisdiction and environmental regulation.[4] As a result, these children will inherit something their parents never had and their ancestors never thought necessary: the right to regulate the water.

These children will also inherit a long tradition of jurisdictional battles over rights to use, pollute, and regulate reservation waterways, as well as a political quagmire of competing local, state, and federal interests. The Flathead Reservation displays an extreme example of a common feature of reservation geography: members of the Tribe own only about fifty percent of the land within the Reservation boundaries.[5] A variety of nontribal interests own the remaining portion, including municipal and county entities and the State of Montana.[6]

A significant portion of the Reservation’s water quality problems, especially on Flathead Lake, comes from municipal and state‑owned facilities.[7] As a result, these nontribal entities have an interest in water quality regulation that extends beyond the loss of their right to regulate water quality on the reservation. The Ninth Circuit’s decision effectively subjects everyone on the Reservation to all water quality standards that the Tribe may promulgate. Unsurprisingly, nontribal interests vehemently opposed the grant of water quality authority to the Confederated Kootenai and Salish Tribes. However, the anecdotal evidence suggests that tribal regulatory authority, at least on the Flathead Indian Reservation, will reap rewards in terms of water quality that may make it worth the struggle.[8]

Since 1987 tribes have been able to apply to EPA for recognition and regulatory authority under the CWA. In that year, Congress added section 518 to the CWA, allowing EPA to treat qualified tribes as states for purposes of the Act (TAS status).[9] Recognition of TAS status is program‑specific; a tribe may apply for TAS status for purposes of setting water quality standards independent of its status vis-à-vis other CWA programs, such as the National Pollutant Discharge Elimination System (NPDES) permitting program.[10] While program participation, measured in number of TAS approvals, has grown since 1987, tribes have to some extent been reticent to take on the full mantle of regulatory authority. Instead, they have chosen to apply for a variety of monetary grants, formerly available only to states, rather than seeking full regulatory jurisdiction.[11]

Some of the most significant hurdles standing in the way of full tribal authority in this area are the jurisdictional conflicts that arise when tribal regulation of reservation water resources affects nontribal members who own land or live within reservation boundaries.[12] This conflict lies at the heart of the Flathead controversy and the Ninth Circuit’s resolution of that controversy in Montana v. Environmental Protection Agency (Montana v. EPA).[13] While the court resolved the Flathead conflict in favor of tribal sovereignty, the decision in no way represents a blank check for tribal jurisdiction under the CWA.

This Chapter assesses the extent to which Montana v. EPA resolves or abdicates the jurisdictional questions posed by nontribal ownership of reservation lands under the CWA. Part II reviews the provisions of the CWA as they relate to tribal authority under section 518. Part III presents a brief discussion of tribal sovereignty and civil jurisdiction. Part IV analyzes the most recent confluence of those two streams of law through an examination of Montana v. EPA. This discussion assesses both the Ninth Circuit’s approach to the doctrine of inherent sovereignty as it relates to water quality regulation and the court’s failure to recognize section 518 as a direct delegation of tribal regulatory authority. Part V concludes that while this case removes a significant barrier to the assertion of tribal authority under the CWA, in avoiding review of the plain language of section 518 the court missed an invaluable opportunity to substantiate the legal basis of tribal regulatory jurisdiction. Continued tribal advancement in the area of environmental regulation will thus depend not on law, but rather on the extent to which EPA continues to advance an Indian policy favoring tribal self‑determination and full regulatory authority.

II. THE CLEAN WATER ACT

A. The Regulatory Program

The Clean Water Act (CWA)[14] requires states to set water quality standards for waters under their jurisdiction.[15] These standards must include designated water uses,[16] criteria designed to protect those designated uses,[17] and an antidegradation policy.[18] Once established, water quality standards serve two primary functions within the regulatory scheme established by the CWA. First, they are included, along with effluent limitations,[19] in the conditions that must be met by entities discharging pollutants under the National Pollution Discharge Elimination System (NPDES).[20] This program regulates the discharge of pollutants from any point source, which the act defines as any “discernible, confined and discrete conveyance”[21] into the navigable waters of the United States.[22]

Second, water quality standards play a major role in state certification under section 401 of the Act.[23] Under this section, any federally licensed activity that may result in a discharge into navigable waters must receive certification from the relevant state, certifying that the activity or discharge will comply with that state’s water quality standards.[24] Thus, all NPDES permits that EPA issues must first receive certification from the appropriate state.[25]

Section 401 serves another function as well. States other than the certifying state whose water quality may be affected by the federally permitted activity or discharge have an opportunity through section 401 to object to the issuance of the permit or license. If such activity will violate the water quality standards of a downstream state, the permit or license must be conditioned to ensure compliance with the downstream state’s water quality standards.[26] If there are no conditions that the permitting agency can attach to the permit or license that will adequately protect downstream water quality standards, the issuing agency cannot issue the license or permit.[27]

B. Treating Tribes as States

In 1987, Congress amended the CWA to allow qualified tribes to receive some of the regulatory authority otherwise delegated to the states.[28] Section 518(e) of the CWA grants EPA the authority to treat qualified tribes as states for a variety of purposes, including establishing water quality standards and issuing NPDES permits.[29] In order for a tribe to be “treated as a state” under this section, the tribe must meet four requirements. The tribe must (1) be federally recognized, (2) have a governing body carrying out substantial duties and powers, (3) have adequate jurisdiction over the water resources for which it seeks program approval, and (4) have the capability to carry out the functions for which the tribe seeks authorization.[30]

EPA reviews tribal application for CWA program approval on a case‑by‑case basis; this is due in part to EPA’s judgment that while a tribe may qualify for TAS status under one program, the tribe may not be able to qualify under other CWA programs.[31] Thus, TAS status is program specific. For example, a tribe that has been approved for TAS status for purposes of setting water quality standards within its jurisdiction does not automatically gain authority to issue NPDES permits.[32]

III. THE LIMITS OF TRIBAL CIVIL JURISDICTION: INHERENT SOVEREIGNTY

A. A Unique Kind of Sovereignty

The administration of federal environmental statutes on tribal lands is complicated by the unique status of Indian tribes as independent but dependent sovereign entities.[33] Tribes generally retain regulatory jurisdiction over matters of tribal self‑government and internal relations. Tribes may regulate matters that fall outside this limited scope only under express delegation from Congress.[34]

This delicate balance is in part a relic of the troubled history of tribal relations in the United States. As early Supreme Court decisions recognized, the discovery and settlement of the “New World” in the late eighteenth and early nineteenth centuries resulted in the conquest of lands previously occupied by Indian nations and the subjection of those lands to exclusive federal power.[35] Indian tribes retained aboriginal title to land in their possession, but this gave the tribes only the right to occupy the land and the federal government could extinguish those rights at any time.[36] The conquest and subsequent treaty relationship established between the federal government and the various tribes established a system wherein tribes were recognized as “domestic dependent nations.”[37]

Subsequent federal Indian jurisprudence established that despite their status as dependents of the federal government, tribes retained inherent sovereignty over their internal affairs and the right to self‑government.[38] However, the extent to which tribes may exercise this sovereignty over nonmembers is limited to situations where such authority is not “inconsistent with their [dependent] status.”[39]

B. The Civil Regulatory Context

The exercise of Indian sovereignty in the context of environmental regulation is further complicated by the prevalence of non‑Indian land ownership within reservation boundaries.[40] For the most part, this “checkerboard” distribution of ownership throughout reservation land is a result of federal Indian policy in the late nineteenth and early twentieth centuries. During this period, Congress pursued a policy of allotment and assimilation aimed at substituting individual private ownership for the system of communal tribal ownership.[41] The most significant symbol of the allotment era is the General Allotment Act of 1887,[42] which authorized allotments in the amount of 80 or 160 acres to individual Indians or heads of Indian households, respectively. The federal government held title to the allotted land in trust for the individual Indian for a period of twenty‑five years; after that time a patent would issue, granting the Indian fee simple title to the land.[43] The Act also provided that tribal land not disposed of through the allotment process would be opened for homesteading by non‑Indians.[44]

Although the Indian Reorganization Act of 1934 effectively repealed the allotment policy,[45] Indian landholdings fell sixty percent during the period of 1887 to 1924, from 138 million acres to 48 million acres.[46] The result is a checkerboard pattern of varied interests within reservation boundaries, with significant fee simple non‑Indian holdings alongside tribal trust lands and lands held in fee by tribal members.[47]

The doctrine of inherent sovereign authority addresses a number of the jurisdictional questions that this checkerboard generates. One issue is whether a tribe has authority to regulate the activities of non‑Indians on non‑Indian land within the reservation.[48] In Montana v. United States (Montana v. U.S.),[49] decided in 1981, the Supreme Court clarified the extent to which the doctrine of inherent sovereign authority may be asserted within a civil regulatory context. In that case, the Crow Tribe sought to prohibit all hunting and fishing by nonmembers on land owned in fee by nonmembers within the reservation.[50] The Court first determined that the relevant Crow treaties and the federal trespass statute did not give the Tribe jurisdiction over land owned by non‑Indians.[51] In doing so, the Court affirmed that the initial step in analyzing Indian regulatory jurisdiction is to determine whether Congress has granted the tribe the asserted authority by means of treaty or federal statute.[52] Under this analysis, an appeal to inherent sovereignty as a basis for a tribe’s civil regulatory jurisdiction is unnecessary if Congress has directly delegated that authority to the tribe.[53]

After finding no direct delegation of the asserted regulatory authority by treaty or statute, the Court next assessed whether the doctrine of inherent sovereignty could support such an assertion.[54] The Court held that, in general, inherent tribal sovereign power did not extend to regulation of activities of nonmembers on land owned by nonmembers.[55] However, the Court carved out two exceptions to this “general proposition.”[56] First, the Court recognized that tribes retain inherent sovereign power to regulate the activities of nonmembers who enter into consensual relationships with the tribe or its members.[57] Here the Court cited cases generally upholding the authority of a tribe to utilize devices such as taxation or licensing to regulate commercial transactions, contracts, leases, and other arrangements between tribal members and non‑Indians.[58] Second, the Court recognized that tribes may exercise civil authority over the conduct of non‑Indians on fee lands within the reservation “when that conduct threatens or has some direct effect on the political integrity, economic security, or the health or welfare of the tribe.”[59] Here, the Court cited cases resolving jurisdictional conflicts in favor of tribal interests within the context of adoption, tribal tax revenues, and water rights.[60] Finding no indication that the facts of the case before it met either one of these exceptions, the Court rejected the Crow Tribe’s assertion of civil regulatory jurisdiction over non‑Indian hunting and fishing on fee lands within the reservation.[61]

C. Further Complications

While the Montana v. U.S. doctrine has been described as “the golden rule of federal Indian law” in this area,[62] many commentators decreed the death of Montana v. U.S.’s second exception in the Supreme Court’s subsequent decision in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation.[63] In a completely fractured 4‑2‑3 decision, the Court grappled with the issue of civil regulatory jurisdiction over nonmembers in the context of a conflict over zoning authority on the Yakama Indian Reservation.[64] While the Court presented no clear plurality opinion, the result was that while the Tribe could exercise zoning authority over non‑Indian’s land in those portions of the Reservation generally closed to the public, the Tribe did not have zoning authority over fee lands within the “open” area of the Reservation.[65]

None of the three opinions agreed on a common approach for applying Montana v. U.S.’s second exception.[66] In fact, neither of the two opinions representing the opinion of the Court rely on Montana v. U.S. as the basis for their holding.[67] Nevertheless, the outcome of this merry‑go‑round decision is arguably consistent with Montana v. U.S.[68] The Tribe could exercise exclusive zoning authority over “closed areas” of the Reservation where there was minimal non‑Indian ownership of land because here nonmember activities would “undoubtedly negatively affect the general health and welfare” of the Tribe.[69] However, the Tribe could not exercise zoning authority over areas of the reservation characterized as predominantly nonmember fee ownership where the county’s exercise of zoning authority “would have no direct effect on the Tribe and would not threaten the Tribe’s political integrity, economic security, or health and welfare.”[70]

Despite doubt after Brendale as to the continued vitality of the Montana v. U.S. exceptions, the Supreme Court decisively returned to Montana v. U.S. in its 1997 decision in Strate v. A‑1 Contractors.[71] In Strate, the Court held that the tribal courts did not have jurisdiction over the personal injury claims of a nonmember injured by another nonmember in a car crash that occurred on a state highway running through the reservation.[72] Although the facts of this case have little or no direct bearing on tribes’ civil regulatory jurisdiction, the import of the case lies in Justice Ginsburg’s heavy reliance on Montana v. U.S.’s description of the bounds of inherent sovereignty and her analysis of the scope of the health and welfare exception.

Justice Ginsburg analyzed the four cases cited by the Court as authority for Montana v. U.S.’s health and welfare exception.[73] She characterized these cases as raising the question of “whether a state’s . . . exercise of authority would trench unduly on tribal self‑government.”[74] Furthermore, Justice Ginsburg argued that the exception should be read in context of the sentence preceding that of the exception itself: “Read in isolation, the Montana rule’s second exception can be misperceived. Key to its proper application, however is the court’s preface: ‘. . . But [a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self‑government or to control internal relations.’”[75] Justice Ginsburg’s reliance on the preface to the exception allows her to argue that regulatory authority over the state highway accident does not interfere with tribal self‑government, thus rendering the second exception inapplicable to the Strate facts.[76]

Justice Ginsburg’s opinion thus offers mixed blessings for tribes seeking to assert civil regulatory jurisdiction over nonmember’s activities. While it revitalizes the status of the Montana v. U.S. rule and its exceptions, it also can be read as further narrowing the scope of the health or welfare exception.[77]

IV. MONTANA v. EPA

In 1995, the Environmental Protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes of the Flathead Reservation “treatment as state” (TAS) status under the Clean Water Act, authorizing the Tribes to set water quality standards for all navigable waterways within the Reservation.[78] The State of Montana and others owning land in fee within the Reservation challenged this grant of authority.[79] Montana argued that TAS status allowed the Tribes to set water quality standards (WQS) that would apply to all discharges within the Reservation, including those originating on land owned in fee by nonmembers of the Tribes.[80] Montana claimed that this was an improper extension of the Tribes’ authority.[81]

The Ninth Circuit upheld the grant of TAS status to the Tribes, holding that EPA properly applied the doctrine of inherent tribal authority in extending to the Tribes regulatory authority over nonmembers on fee land within the Reservation.[82] In so doing, the Ninth Circuit first deferred to EPA’s judgment that inherent authority was the proper standard under which to evaluate TAS status.[83] The Court then affirmatively applied the second exception to the Montana v. U.S. doctrine by identifying water quality regulation as an area that could affect the tribe’s health and welfare, justifying tribal jurisdiction over nonmember conduct.[84]

This resolution, although a win for the Flathead Reservation Tribes, poses serious problems for future tribal efforts to assert regulatory authority. First, the court’s legal interpretation of the requisite showing to justify an assertion of inherent authority potentially narrows the scope of Montana v. U.S.’s second exception beyond that which either EPA policy or Supreme Court precedent requires.[85] Second, and more importantly, the court’s cursory and deferential assumption that TAS status requires a showing of inherent authority runs contrary to established federal Indian law and policy and potentially undermines future tribal efforts to assert full regulatory authority over reservation environments.[86]

A. The Scope of Inherent Authority

1. EPA’s TAS Regulations

EPA regulations governing the grant of TAS status adopt the standard of inherent tribal authority as the criterion for assessing tribal jurisdiction and authority to promulgate water quality standards.[87] The regulations state that a tribe shall include in its application “a descriptive statement of the . . . Tribe’s authority to regulate water quality,”[88] which should include a statement from the tribe’s legal counsel of the “basis for the tribe’s assertion of authority” and an “identification of the surface waters” over which the tribe seeks jurisdiction.[89]

The Preamble to the final regulation provides further guidance as to what EPA will consider as a sufficient showing of “authority to regulate water quality.”[90] In order to meet its burden under the regulations, a tribe must show that (1) the tribe uses waters located within the reservation, (2) those waters are subject to protection under the CWA, and (3) impairment of those waters would have a serious and substantial effect on the health and welfare of the tribe.[91] Echoing the language of Montana v. U.S. and Brendale, EPA requires that the activities the tribe seeks to regulate have a “serious and substantial” effect on the health and welfare of the tribe.[92]

2. The Ninth Circuit’s Approach: Of Dicta and Distinctions

In Montana v. EPA,[93] the Ninth Circuit upheld these regulations as validly reflecting the Supreme Court’s delineation of the scope of inherent tribal authority.[94] The court cited three reasons for its determination that EPA had properly found the authority to promulgate water quality standards as falling within the scope of the Salish and Kootenai Tribes’ inherent sovereign authority. First, the court noted that in requiring the impacts on tribal health and welfare to rise to a level of “serious and substantial,” EPA properly accounted for the Supreme Court’s comments on inherent authority in Brendale.[95] The State of Montana argued that Brendale in fact has repudiated the Montana v. U.S. standard of inherent authority. However, the Ninth Circuit rejected that argument, noting instead that Montana v. U.S. was recently “reaffirmed” by the Supreme Court in Strate v. A‑1 Contractors.[96]

Second, the Ninth Circuit noted that EPA’s finding of serious and substantial threats to tribal health and welfare is supported by Ninth Circuit precedent holding that threats to water rights may invoke inherent authority.[97] Finally, the court noted that its decision was “fully consistent” with the Tenth Circuit’s recent decision in City of Albuquerque v. Browner.[98] In that case, the Tenth Circuit recognized the authority of the Isleta Pueblo to establish water quality standards more stringent than federal standards, finding such authority to be “in accord with powers inherent in Indian tribal sovereignty.”[99]

The Ninth Circuit thus interpreted the line of cases establishing the scope of inherent authority as including both the Supreme Court’s initial application of that standard to civil regulatory matters in Montana v. U.S., and that Court’s subsequent commentary in Brendale and Strate.[100] Moreover, the Ninth Circuit implicitly characterized the latter two cases as modifying the Montana v. U.S. rule. Specifically, it affirmed EPA’s reading of Brendale as requiring that the threat to tribalinterests must be “serious and substantial” in order to meet the “direct effect” exception to the Montana v. U.S. rule.[101] And, although not crucial to its holding,[102] the Ninth Circuit in dicta indicated that Strate creates an additional requirement that must be met in order for the second Montana v. U.S. exception to apply, namely that the tribe demonstrate “a nexus between the regulated activity and tribal self governance.”[103]

As such, the Ninth Circuit appears to have interpreted Strate as applicable in not only a civil adjudicatory but also a civil regulatory context.[104] In so doing, the court appears to have turned the Montana v. U.S. exception into a multi‑step evaluation. Although it is too soon to tell what practical effect this test will have, it could potentially narrow the scope of inherent authority beyond that intended either by EPA or the Montana v. U.S. Court.

However, in deciding Montana v. EPA, the Ninth Circuit did not subsequently apply the “nexus” requirement it derived from Strate.[105] Rather, the court noted that Strate was decided after the district court decision[106] and distinguished the facts of Strate from those in Montana v. EPA.[107] The Ninth Circuit did rely on the Strate decision that Montana v. U.S. survived the chaos of Brendale, commenting that “the EPA decision appears to adumbrate the Supreme Court’s holding in Strate.”[108] The Ninth Circuit thus indicates that despite the potential narrowing of Montana v. U.S.’s second exception by Brendale and Strate, EPA correctly relied on the Montana v. U.S. approach when evaluating the Tribes’ TAS application.

The court’s Strate citation could be read as extending Strate to civil regulatory contexts and concurrently transforming Montana v. U.S.’s second exception to a multi‑step evaluation requiring an initial showing of nexus between the regulated activity and tribal self‑governance. However, because the court declined to apply Strate’s “nexus” test, a more accurate reading of the opinion is that the Ninth Circuit reaffirmed the viability of Montana v. U.S.’s health and welfare exception without changing the substantive test for when that exception applies.

3. Implication: The Resurrection of the Health and Welfare Rule

The basis of the Ninth Circuit’s holding remains the standard set forth in Montana v. U.S. and Brendale: a showing of serious and substantial effect on tribal health or welfare justifies tribal regulatory authority for purposes of establishing reservation‑wide water quality standards.[109] Thus, although the Ninth Circuit’s citation to Strate indicates that that case applies to civil regulatory jurisdiction issues, Strate itself does not provide strict authority for such a position. A more accurate reading of both Strate and the Ninth Circuit’s reasoning here limits the import of Strate to its particular factual context, namely civil judic