1. Developing and Implementing Solid Waste Codes ITEP - TSWEAP Wyndham San Diego Bayside, San Diego, CA September 23-25, 2014 Gussie A. Lord Jill Grant & Associates, LLC 1319 F Street, NW, Suite 300 Washington, DC 20004 Ph. 202-821-1950 Email: glord@jillgrantlaw.com

2. Sources of Tribal Jurisdiction Federal Indian Law Principles Treaties Tribal Authorizing Statutes/Ordinances and Regulations Federal Authorizing Statutes and Regulations “Treatment as a State” provisions as example (but not for solid waste management)

3. Tribal Jurisdiction Over Land The land at issue must be “Indian country” 18 U.S.C. § 1151 Reservation/tribal trust land Allotted land Dependent Indian community 3

4. 18 U.S.C. § 1151 (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 4

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6. Tribal Jurisdiction Over Persons – Civil Jurisdiction Tribal jurisdiction over non-Indians may depend on “Montana test” Montana v. U.S., 450 U.S. 544, 565-66 (1981) Nevada v. Hicks, 533 U.S. 353, 358 n.2 (2001) 6

7. The Montana test: A tribe retains inherent sovereignty to regulate : 1. “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements,” and 2. nonmember “conduct... that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 565-66. 7

8. Application of Montana Test in Environmental Context Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001) EPA TAS approvals EPA TAS guidance CWA §§ 303, 401 TAS regulations: 56 Fed. Reg. 64,876, 64,878 (Dec. 12, 1991) 8

9. Tribal Jurisdiction Over Persons – Criminal Jurisdiction No tribal criminal jurisdiction over non-Indians Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) Tribal criminal jurisdiction over Indians is limited by the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, as amended by the Tribal Law & Order Act of 2010, P.L. 111-211, Title II, § 234. $5,000 fine, up to $15,000, and/or 1 year in jail, up to 3 years (9 years for multiple offenses) 9

10. Exceptions to General Principles of Jurisdiction Public Law 280 Settlement Acts Oklahoma 10

11. Public Law 280 Enacted in 1953, amended in 1968 A federal law that delegates federal criminal jurisdiction and certain civil jurisdiction over Indian country to certain states in the west and Midwest Means tribe has concurrent jurisdiction with state However, it does not allow state regulatory jurisdiction over tribes, so in general does not affect implementation of environmental laws 11

12. Settlement Acts Alaska virtually no Indian country New England states, Texas conferring jurisdiction on state for certain purposes in exchange for settlement of land claims or tribal recognition 12

13. Oklahoma Rider to SAFETEA-LU omnibus transportation legislation regarding environmental regulation § 10211(a) - Oklahoma can administer environmental programs in Indian country without demonstrating jurisdiction § 10211(b) - Tribe must enter into cooperative agreement with state before it can obtain TAS from EPA 13

14. Tribal Authorities Tribal Constitution Tribal Environmental Laws Tribal Regulations 14

15. Tribal Constitution CONSTITUTION AND BYLAWS FOR THE SHOSHONE-BANNOCK TRIBES OF THE FORT HALL RESERVATION OF IDAHO Article I. – Territory The jurisdiction of the Shoshone-Bannock Tribes shall extend to the territory within the present confines of the Fort Hall Reservation and to such other lands without such boundaries as may hereafter be added thereto under any law of the United States except as otherwise provided by law. 15

16. Tribal Environmental Laws Red Lake Nation Hazardous Substances Control Act 2000.02 (18)Definition of Red Lake Nation “Red Lake Nation” means the Red Lake Band of Chippewa Indians. When used in terms of territorial jurisdiction, the term means all land within the exterior boundaries of the formal Red Lake Indian Reservation, all tribal trust lands even if outside the formal Reservation boundaries, and all restored parcels of land as defined in the Treaties creating the Reservation and the documents restoring land to the Red Lake Nation, whether or not they have been taken into trust. 16

17. Tribal Environmental Regulations Navajo Nation Surface Water Quality Standards § 103.B. These standards apply to all Waters of the Navajo Nation. § 104.XX. “Waters of the Navajo Nation” means all surface waters... which are within or border the Navajo Nation. 17

18. Tribal Right to Exclude Right under treaties Right under case law Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) Based on right as property owner, distinct from right to regulate Water Wheel Camp Rec. Area, Inc. v. Larance, 642 F.3d 802 (9th Cir. 2011) Can exclude from reservation, prevent access or limit access, subject to case law 18

19. Concurrent Federal and Tribal Jurisdiction In general, tribe enforces tribal law and EPA enforces federal law Changes somewhat when a tribe has TAS: tribal enforcement of approved provisions of tribal law is equivalent to enforcement of federal law TAS not an option for solid waste 19

20. Delegated Federal Authority In the environmental context, by EPA rulemaking Clean Air Act federal operating permits, 40 C.F.R Part 71 Clean Air Act new source review in Indian country, 40 C.F.R. Part 49, Subpart C By cooperative agreement As federal agent, e.g. federal credentials for UST program, 401 certification for NPDES Direct Implementation Tribal Cooperative Agreement with EPA 20