Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction under the Clean Water Act after United States V. Lara

Article excerpt

I.  INTRODUCTION
II. OVERVIEW OF THE CLEAN WATER ACT AND THE PRE-LARA TREATMENT
    AS A STATE PROCESS
    A. The Clean Water Act
    B. EPA's Interpretation of section 518(e) and Its Implications for
       Indian Tribes
       1. EPA Has Interpreted section 518 as Based on Inherent
          Sovereignty Rather Than as a Delegation
       2. The Pre-Lara Implications for Tribes of EPA's Reliance on
          Inherent Sovereignty
          a. The Supreme Court's Progressive Narrowing of Tribal
             Sovereignty
          b. EPA's Presumption in Favor of Tribal Sovereignty
          c. The Difficulties Tribes Face in Attaining TAS Status
          d. The Uncertainty Faced by Tribes with TAS Status
             Under the Pre-Lara Framework
III. THE COURT'S HOLDING IN LARA AND WHAT IT MEANS FOR TRIBES
     APPLYING FOR TAS STATUS
     A. The Court's Holding in Lara
     B. Lara's Implications Outside the Criminal Law Context
     C. Why Lara Requires the TAS Provision of the CWA Be Read to
        Reinvest Tribal Sovereignty
        1. Interpreting section 518(e) to Reinvest Tribal Sovereignty
           Is Consistent with the CWA's Plain Language
        2. The Legislative History of section 518(e) Does Not
           Preclude an Interpretation Reinvesting Tribal Sovereignty
        3. Interpreting section 518(e) as Reinvesting Tribal
           Sovereignty is Consistent with Other Provisions of the
           CWA
IV. CONCLUSION

I. INTRODUCTION

In April 2004, the Supreme Court decided the groundbreaking Indian law case, United States v. Lara. (1) Lara settled the issue of whether Congress can restore previously divested tribal sovereignty. Since Congress has plenary power over tribes and tribal sovereignty, it has long been the law of the land that Congress can abridge that sovereignty. (2) Whether Congress' plenary power also enables it to reinvest tribal sovereignty, however, remained unanswered. (3) Nonetheless, many assumed that Congress could not. In Lara, the Supreme Court finally addressed this issue and, to the astonishment of some Indian law practitioners and the relief of many, the Court held that, just as plenary power allows Congress to divest tribal sovereignty, so too does this power allow Congress to reinvest tribal sovereignty. (4)

Lara, a criminal case concerning the Double Jeopardy Clause, (5) considered whether Congress could reinvest Indian tribes' criminal jurisdiction over non-member Indians. (6) However, its implications go far beyond the criminal context. In light of the principle that the Supreme Court's "application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision," (7) Lara may well have immediate and wide-ranging effects in the civil context, under any statute that can be read to recognize and affirm tribal sovereignty. (8)

This article examines Lara's effect on tribes' ability to obtain Clean Water Act (CWA) (9) treatment-as-state (TAS) (10) status. Based on Lara, the article concludes that the CWA should be read to recognize and affirm tribal sovereignty, thereby reinvesting tribal sovereignty over regulation of water quality. Furthermore, this article concludes that Lara should be applied retroactively to all tribal applications for TAS status under the CWA. Such a reading of the CWA would considerably reduce the burdens on tribes applying for TAS status which, prior to Lara, included the requirement that tribes affirmatively show that their sovereignty to regulate water quality within their reservations had not been divested. This article's suggested reading of the CWA would also be consistent with the intent of the TAS program and EPA's interpretation that the program is based on inherent tribal authority.

II. OVERVIEW OF THE CLEAN WATER ACT AND THE PRE-LARA TREATMENT AS A STATE PROCESS

Because delegation of power by Congress requires an affirmative act by the federal government granting tribes limited, specifically-defined power, usually in a narrow context, (11) whereas a tribe's inherent sovereignty is amorphous, not necessarily subject to constitutional limitations, and generally exists independently of federal recognition (although it may be implicitly or explicitly abrogated by Congress), (12) courts tend to be more comfortable enforcing delegated tribal power than inherent tribal sovereignty. …