A Single Penny, an Inch of Land, or an Ounce of Sovereignty: The Problem of Tribal Sovereignty and Water Quality Regulation under the Maine Indian Claims Settlement Act

Barnum, Cassandra
November 2010
Ecology Law Quarterly;2010, Vol. 37 Issue 4, p1159
Academic Journal
This Note has three goals: to describe the Environmental Protection Agency's 2003 delegation of National Pollutant Discharge Elimination System permitting authority to the State of Maine under the Clean Water Act, to critique the Agency's decision based on principles of federal Indian law, and to propose solutions to the resultant problems faced by Maine's Indian tribes - namely, an inability to safely pursue their cultural tradition of subsistence fishing due to insufficiently protective state water quality standards. The Note describes the history of the Maine Indian Claims Settlement Act and the Maine Implementing Act, and the problems those Acts pose with regard to State authority in tribal lands for purposes of National Pollutant Discharge Elimination System permitting. It then details the Environmental Protection Agency's decision in favor of the State's authority to regulate water quality in tribal waters, and the First Circuit's affirmation of that decision. Those decisions, the Note argues, were not made with the proper appreciation for the basic interpretive canons of federal Indian law. Finally, the Note offers and provides normative justifications for three potential solutions to the basic problems posed by the delegation and the Settlement Acts: first, the Environmental Protection Agency could reject state water quality standards as inadequately protective, based on the federal trust responsibility to Indian tribes; second, the tribes could assert their own regulatory authority over the waters at issue; and, third, the Settlement Acts could be amended to explicitly allow for concurrent state and tribal authority over water pollution regulation within tribal territories.


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