Idaho Nibbles at Montana: Carving out a Third Exception for Tribal Jurisdiction over Environmental and Natural Resource Management

By Althouse, H. Scott | Environmental Law, Summer 2001 | Go to article overview

Idaho Nibbles at Montana: Carving out a Third Exception for Tribal Jurisdiction over Environmental and Natural Resource Management


Althouse, H. Scott, Environmental Law


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. …

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Idaho Nibbles at Montana: Carving out a Third Exception for Tribal Jurisdiction over Environmental and Natural Resource Management
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