New Scholarship Supporting Tribal Authority under the Clean Water Act

Sulfide mining and other industrial activities that destroy wetlands have the potential to affect tribal waters both where the discharge originates and downstream. Pollution and destruction of habitats can impair treaty rights to hunt, fish and gather.

Since 1987, federally-recognized tribes have had the right to apply for and obtain Treatment as a State authority under the Clean Water Act. Several Bands of the Lake Superior Chippewa have secured the right to regulate water quality and object to Clean Water Act Section 404 permits that allow wetlands destruction and pollution.

The Clean Water Act allows tribes to object to projects located on the reservation and allows downstream tribes to object to federal permits and enlist the Environmental Protection Agency in determining whether the action will harm reservation water quality. However, this tribal authority has never been exercised.

In addition, although many cases recognize a theoretical trust obligation on the part of the federal government to Indian tribes, this obligation is rarely applied to protect tribal resources.

After several months of research, I published an article in the spring 2015 issue of the William Mitchell Law Review (TRIBAL AUTHORITY TO PROTECT WATER RESOURCES AND RESERVED RIGHTS UNDER CLEAN WATER ACT SECTION 401 ) recommending an expansive view of tribal authority under the Clean Water Act to veto, condition, or deny federal permits affecting water quality and reserved tribal treaty rights to hunt, fish and gather.

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One Response to New Scholarship Supporting Tribal Authority under the Clean Water Act

  1. Walter says:

    What would really be rinreshefg is to hear one of these tribal representatives tell the President that it’s not his job to “meet their needs”, but that it is his job to execute only those presidential powers which are enumerated in the Constitution, one of which is to execute the treaties as they are laws of the land according to their original intent. Indian Country does not need Big Daddy Obama or any other president, senator or congressman to take care of them or to “improve their lives.” If Government wants to do anything let it 1) cede all lands and property out of BIA trusts and back into the respective tribal incorporations, and 2)HONOR THE TREATIES as they were originally intended. Quit trying to seduce the tribes with ever more pig tits of public entitlements that sap away the will to be free and to exercise liberty. Tell the president to protect the borders, defend against enemy attack, execute constitutional laws, honor treaties, and then to leave the Tribes and their proud peoples to pursue happiness as they see fit, according to the dictate of their own hearts if they still have them.

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