Control of the Reservation Environment: Tribal Primacy, Federal Delegation, and the Limits of State Intrusion

Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native self-determination, and state autonomy. In this Article, the authors trace the roots of federal, state, and tribal authority to control events within reservation boundaries. Applying a three-tiered analysis to the problem, the authors examine: express federal preemption of state pollution control laws; federal program delegation to native governments as a bar to state regulation; and established common law barriers to state authority in Indian country.

The authors conclude that state pollution control regulation, whether aimed at native or nonnative persons and activities, is prohibited in Indian country.