Tribes’ Right To Set Water Rules Upheld Ruling Affirms Jurisdiction Over Non-Indians On Reservation
The Supreme Court on Monday refused to disturb a ruling that the Confederated Salish and Kootenai tribes in Montana have the authority to set water quality standards for reservation lands owned by non-Indians.
The court, without comment, rejected an appeal in which the state and several local governments argued that the tribe cannot regulate water quality on such land.
The decision has important implications for the Coeur d’Alene Tribe, which recently won a federal court battle that returns their title to the southern third of Lake Coeur d’Alene.
“The Coeur d’Alene Tribe has been waiting to see what would be the final decision in the Flathead case before it took a similar step - to make formal application to the Environmental Protection Agency to have its water quality standards federally approved and enforceable under the Clean Water Act,” said Ray Givens, tribal attorney. “We now know what the law is, and the Tribal Council will decide how to proceed.”
Meanwhile, the decision “is good news for all Indian tribes because it’s a reaffirmation of tribal sovereignty and that the tribes can set environmental standards,” he said.
The federal Clean Water Act gives states the main responsibility to regulate water pollution. Congress amended the law in 1987 to let the government give Indian tribes similar authority to regulate water quality on their reservations.
The EPA said tribes that wanted their rules to cover reservation areas owned by non-Indians must demonstrate that water pollution from those areas would have a “serious and substantial” impact on the tribe.
The tribes on the Flathead Reservation in western Montana sought federal authorization in 1992 to regulate water quality on the reservation. EPA officials gave such approval, including authority to regulate areas owned by non-Indians.
The approval was challenged in court by the state, Lake County, the city of Ronan and town of Hot Springs. The state operates a research facility and the localities operate wastewater treatment facilities, all of which discharge water into lakes or streams on the reservation.
They said the EPA misinterpreted a 1981 Supreme Court ruling that generally barred tribes from regulating nonmembers but made an exception for activities that affect a tribe’s health or welfare.
A federal judge ruled for the EPA and the tribe, and the 9th U.S. Circuit Court of Appeals upheld that ruling.
“Threats to water rights may invoke inherent tribal authority over non-Indians,” the appeals court said in March.
In the appeal acted on Monday, the state and local governments’ lawyers said another high court ruling indicated that tribes could exercise authority over non-Indians only if state regulation proved inadequate.
Justice Department lawyers said tribal authority does not depend on whether a state has its own regulations.