Tribal Sovereignty and Natural Resource Damages

Abstract

At the very least, tribal sovereignty entails an obligation to exercise available governmental power to protect a tribe's health, safety and natural resources to the greatest extent possible. As the Supreme Court said in Worcester v. Georgia, an Indian tribe "does not surrender its independence and right to self-government, by associating with a stronger [power]." An often overlooked and underutilized source of legal power available to tribes exists under federal law and common law to protect natural resources and to restore or receive compensation for damages caused to natural resources.

It is a fundamental concept for most tribes that natural resources and resource services provide not only the substantive basis of all life, but also determine the quality of that life, both for humans and other species. It is important to act when discharges of hazardous substances and other pollutants result in injuries to these natural resources and natural resource services, impairing the important ecological and economic functions that they provide.

Although environmental pollution has spawned a great deal of public and private litigation and related investigations, little of this work has focused on natural resources. Most of this work has dealt with site remediation efforts focusing on how to protect the public from immediate risks of harm. At the same time, we have seen relatively little contemporary litigation by governmental entities regarding the restoration of natural resource damages ("NRD"). This will likely change as greater attention turns to achieving a return to ecological baselines.

Tribal governments will likely shape, if not lead, this effort nationally. First, tribes appreciate to a greater degree the interconnection between people and their environment. Second, unlike state governments, which can often be immobilized by special interest lobbying, tribal governments generally avoid this level of counterproductive lobbying.

Below, I will discuss how tribal governments can exercise their important sovereignty rights by using federal claims for natural resource damages. In addition, most tribes may also employ rights under the common law Public Trust doctrine and other theories.

Keywords: Tribal, Sovereignty, Natural, Resource, Damages