Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction under the Clean Water Act after United States v. Lara
Environmental Law, Vol. 35, p. 471, 2005
20 Pages Posted: 8 Oct 2011 Last revised: 28 Oct 2013
Date Written: March 5, 2005
This essay examines the implications of the Supreme Court’s decision in United States v. Lara for tribes seeking Treatment-as-State (TAS) status under the Clean Water Act (CWA). It concludes that, because the CWA recognizes and affirms tribal sovereignty over water quality, the CWA should be read, under Lara, to legislatively restore tribal sovereignty over water quality. First, this article delineates the pre-Lara requirements, for TAS status and examines the interpretation adopted by the Environmental Protection Agency (EPA) of the CWA’s TAS provisions. Second, the article explains (1) Lara, (2) its implications, and (3) the context of prior Supreme Court cases on tribal sovereignty. Finally, this essay argues that the CWA’s plain language, its legislative history, and its other provisions support a reading of the Act as restoring tribal sovereignty in the context of water quality.
Keywords: Treatment-as-State, Clean Water Act, tribal sovereignty, water quality, Environmental Protection Agency, Lara
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