New Opportunities for Native American Tribes to Pursue Environmental and Natural Resource Claims

ABSTRACT Native American tribes should take advantage of recent trends in environmental law to pursue claims for damages to their natural resources and their well-being. This article considers civil actions in tribal courts, citizen suits, toxic torts, and claims under parens patriae. While tribal regulatory jurisdiction in the environmental arena' has increased, tribal jurisdiction has declined. This has led to an increase in environmental citizen suits, which have enjoyed varying degrees of success. Toxic torts have emerged as an alternative to the traditional route of pursuing claims under federal statutes. Parens patriae is another unexplored method by which tribes may assume the same natural resource defense authority that is allocated to states. I. INTRODUCTION Today's Native American reservations are some of the most polluted areas of the country. Reservations do not share in the wealth of America's powerful industries, yet bear a disproportionate amount of its pollution. (1) Many tribes have sought legal recourse to clean up their reservations. This paper examines different legal methods that can be used to clean up pollution on reservations, specifically through tribal courts, citizen suits, toxic torts, and parens patriae claims. While the federal judiciary has shown an increasing willingness to allow states to sue polluters for damages to natural resources, Native Americans have yet to follow this course. Using the model of parens patriae authority allocated to states, Native American tribes should take advantage of their unique autonomy to pursue toxic tort and natural resource damage claims. II. THE ENVIRONMENTAL STATE OF NATIVE AMERICAN RESERVATIONS In recent years, Indian Country (2) has increasingly become home to hazardous waste sites, including those for nuclear waste. (3) Multiple factors have precipitated this condition. First, the financial situation and political disenfranchisement of Native Americans make them particularly vulnerable candidates for exploitation. Second, the environment is a relatively new concern for Native American activists. Finally, the confusion surrounding the applicability of environmental regulations to Indian reservations creates a fog in which some polluters can escape notice. A. Exploitation Polluters are attracted to Indian reservations for the same reason they are attracted to minority communities in the southeast-poverty, political disenfranchisement, and the resulting potential for exploitation. (4) Because of the dire economic situation on many reservations, (5) tribal members are not in a strong position to refuse a polluter's financial offer, no matter what the long-term health consequences may be. Tribes who do protect their environmental rights often find themselves in a weak position to politically challenge the polluter. (6) Further, they experience cognitive dissonance between their desires to maintain traditional environmental values and to pursue a path of self-determination with regard to economic development. (7) Because the issue of a clean environment is often framed as being in conflict with economic success, many tribes have viewed environmental action as something beyond their reach. (8) A tribe with high unemployment cannot afford to turn down economic opportunities, regardless of their consequences. Polluters understand this fact and seize upon it. Tribal governments welcome what they see as an opportunity for economic self-sufficiency, including full employment of tribal members and investment capital for future projects. (9) For the tribes who seek redress against a polluter, a lack of resources adversely affects political mobilization against the offender. As one scholar noted, "The companies and even the agencies which regulate their operation have allowed such siting because communities of color are lacking in resources such as financial or political organizations to defeat them. …