In the past 400 years both indigenous and immigrant peoples have been ambivalent about the relationship between tribes and European-style governments. That ambivalence has led to dramatic policy shifts between assimilation and separateness. Sharply inconsistent views about the role of tribes are reflected in court opinions. This ambivalence appears in the complex legacy of landholdings, federal law and the issues faced by native peoples. If the election of Barack Obama represents an endorsement of assimilation what does that mean for tribes as separate governments?
The course begins with an overview of Indian law and policy. We then look at the layers of government involved in federal environmental regulation. Indian lands are subject to more federal controls than any other lands in the United States. Environmental impact analysis and federal decision making are considered. We look at administrative, judicial and legislative institutions for solid waste disposal siting decisions that affect tribal interests.
Many questions arise without easy answers. Should tribes have regulatory and land use authority over nonmembers of the tribe who live within reservation boundaries? Should governments encourage or discourage commercial development in reservation border areas? Which government makes the judgment call about a project that affects the environment of both reservation and neighboring lands? Should courts, agencies or legislatures answer these questions? What role should history and the passage of time play in interpreting agreements of the past? How are environmental justice concerns resolved in reservation boundary areas?
We will use a coursebook with edited judicial opinions and a few other materials. The court opinions will be briefed in class to illustrate the historic threads of national environmental and Indian policies. We also use a basic legal reference, PEVAR, THE RIGHTS OF INDIANS AND TRIBES. An environmental justice dispute set forth in McGOVERN. THE CAMPO INDIAN LANDFILL WAR is used to explore solid waste regulation on a reservation ("the 'rez") and its adjacent communities ("the 'hood"). A visit to a Maine reservation is a focal point of the course, to allow conversation with tribal leadership involved with current environmental and Indian issues. For the final project, students apply principles from the court opinions and other assignments to a hypothetical land transfer in a reservation border area.
Students will first research the factual setting of a contemporary reservation and its neighbors. The final paper will apply cases and policy materials to advise President Obama on a legislative position answering the following question: Should adjacent land be taken into trust for the ____ Tribe for the purpose of regulating a proposed solid waste landfill?