Returning to the Tribal Environmental "Laboratory": An Examination of Environmental Enforcement Techniques in Indian Country

Abstract

Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description of environmental enforcement techniques being utilized by tribes. It builds on past articles examining tribal environmental law and also the idea of tribes, who are uniquely situated to engage in meaningful experimentation, as valuable governmental laboratories of innovation. Such consideration is constructive given that the federal government’s innovation has stagnated, and other levels of government may learn valuable lessons by reviewing the work of tribes. Further, effective enforcement of tribal environmental law may be particularly important to tribes because of the strong connection to specific areas of land that exists for many tribes and individual tribal members. To accomplish this examination of tribal environmental enforcement mechanisms, this Article provides a descriptive survey on the environmental enforcement provisions found in the tribal code provisions of tribes located within the boundaries of four states. This Article reviews the survey results from respondents for nine tribes to determine how effective the tribes’ environmental enforcement mechanisms have been. This Article concludes that tribes are actively incorporating environmental enforcement mechanisms into their tribal codes, but that they are modifying and adapting such mechanisms to best accomplish enforcement within Indian country.