Articles

The Clean Air Act (CAA or the Act) is an important cornerstone of the Federal environmental statutes that protect the quality of the nation’s air and waters. Indian tribal governments understandably wish to manage air quality within their reservations and to address air pollution that affects their lifeways. Reservations in the Pacific Northwest have common problems with particulate matter air pollution, such as from open burning and fugitive dust, which can endanger people’s health and safety, as well as cause other environmental impacts such as regional haze.

Fundamental changes are coming as we move toward a post-fossil-fuels economy. Global climate change is a compelling reason why we need to shift to an economic order that uses energy efficiently and meets most of our needs for energy services with renewable resources.

"You must first change the way people think." That was the wisdom passed to a representative of the Washoe Tribe by an indigenous Buryat monk from the Russian state Buryatia, discussing how to protect Lake Baikal and the lands and natural resources of cultural importance to the indigenous people that region in southern Siberia. Notwithstanding international norms and national laws to protect indigenous peoples’ customary use and tenure of their lands, persuading nonindigenous authorities and businesses to respect these rights demands innovative strategies that blend a variety of approaches and tools. As economic globalization introduces commerce to new regions and private actors seek to exploit new resources, indigenous peoples’ cultural identity and very survival may hinge upon their ability to design new tools and breathe fresh life into existing mechanisms to change the thinking of governments, businesses, and the public at large.

As any New Age shaman - and many grave robbers - can tell you, Indians are hot. As appreciation of traditional Native American cultures has grown over the last few decades, so too has the market in objects and experiences thought to express those cultures.¹ To the extent that it indicates respect for Native American tribes and individuals and offers them a chance to profit in the market, this development has been embraced.

In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA).1 The states, disappointed with certain aspects of the IGRA legislation, launched a war against Indian tribes to stop them from conducting the gaming which Congress had determined was a vital source of economic development for tribes and a proper exercise of tribal sovereignty.

Environmental law as it has evolved in the United States can be described as “environmental federalism.” Federal laws establish the basic framework for protecting and restoring air and water quality, managing wastes, dealing with hazardous materials, and a range of other subjects. Within the framework of these federal laws, states are required to perform certain functions, and they have the option to perform other functions pursuant to delegations of authority from the federal Environmental Protection Agency (EPA). States also have the option, through the exercise of their sovereignty, to enact and carry out laws that deal with aspects of environmental protection that are not covered by federal law.

This Article examines the nature of the right to fish that Indian tribes reserved in treaties with the United States Government, concluding that the exercise of the treaty right to fish is a compensable Fifth Amendment property right.

Once, a long time ago, Turtle organized a war party against the Human Beings. As he was paddling his canoe down the river, he chanced upon Bear, who asked him where he was going. Turtle said that he was going to make war on the Human Beings, the ones that call themselves the Haudenosaunee (who are more commonly known now as the Iroquois). In explaining his course of action to Bear, Turtle said, “Too long they have made war on animals. Now is the time for us to strike back.” When Bear offered to join in, Turtle turned him down, purportedly because Bear would be too slow but more likely because Bear was just too big for Turtle's small canoe. Turtle also passed up an offer by Wolf to join his war party. His stated reason was that Wolf was too fast and that he would run away and leave Turtle behind, but the real reason was that Turtle had gotten a good close look at Wolf's long sharp teeth.

The Indian tribe is a unique component in our federal system of government. Unlike all our other governmental institutions, the tribe is not a creature of the Constitution of the United States, nor of the federal government created by the Constitution, nor of the states which created the Constitution.