Treating Tribes as States Under Federal Statutes in the Environmental Arena: Where Laws of Nature and Natural Law Collide

America’s relationship with its natural environment implores the fullest understanding of American constitutionalism and law. Private property rights may be affected, individual liberties may be denied, subtle nuances of due process may be determinative, and the resulting intersovereign conflicts raise every inherent tension of federal republican democracy. When environmental issues arise in Indian Country, they assume an almost unimaginable complexity. For example: private property may be an anomaly; individual liberties may be subordinate to the tribe’s interests; governance may be exercised over those who may not participate; the tribe, surrounding states, and the Union of those states may hold entirely different views. Today, such disputes in Indian Country often arise under a set of federal environmental statutes, particularly those in which Congress has authorized the Environmental Protection Agency (EPA) to treat “Tribes as States” (TAS). Equally important, these statutes evoke questions about tribes’ inherent powers to govern their natural environments in Indian Country, irrespective of or at least beyond the federal statutory scheme. States and their citizens challenge the tribes’ inherent authority, especially to govern nonmembers and their property within Indian Country. Consequently, in the TAS context, states and their citizens also challenge the EPA’s authority to recognize tribal governance over them and their property. These disputes have given rise to renewed conflicts between states and tribes, and between states and the Union, in the federalism context. The disputes raise fundamental concerns about the most basic principles of American constitutionalism, as well as environmental concerns. This article focuses on one set of issues of singular difficulty in the TAS arena: those issues arising when Indian tribes would govern persons and their property within Indian Country who are not members of the tribe. First, in recent years, federal courts have seriously undermined the territorial nature of tribes, especially when it comes to governing non- Indians in other contexts. Second, federal courts seem to hold tribes to the highest standards of due process concerns, in criminal and civil matters, adjudicatory and regulatory, even when the infringed substantive right would not invoke the same level of protection if the Union or the states were doing the infringement. Third, relevant Supreme Court precedent, seemingly against the tribes’ interests, leave more room for pro-tribe, fact-based arguments than the Court itself and commentators seem to suggest. This article makes three contentions. First, an accurate reading of early legal precedent supports a greater vision of tribes’ territorial sovereignty than courts and some commentators have espoused. Second, Indian Law precedent, particularly Montana v. United States, provides greater protection of both tribes’ sovereignty and non-Indians’ individual rights than recent developments suggest. Third, “due process” is not a constant under American law. Some rights are more substantive than others. As a result, the requisite level of “process” is commensurate with the level of substantive right being infringed. Therefore, tribes should be allowed to provide “process” commensurate with the substantive right involved, without being held to the highest standard of “process” in every instance. This article concludes that if tribes are to govern Indian Country on a territorial basis, including property owned by non-Indians, they must meaningfully address the basic due process concerns of the United States, the several states, and their citizens. Finally, this article is not intended to provide a survey or summary of all relevant statutory and case law. Others have ably navigated the rather complex federal statutory framework and administrative processes, leaving in their wake practical roadmaps for interested parties to follow. Rather, this article will endeavor to measure these statutes and cases, in terms of both policy and law, against political and legal theory of American constitutionalism. The final effort is to interject into the discussion how tribes might meaningfully address non- Indians’ basic due process concerns while maintaining the tribes’ basic cultural values.