LS06CH18-DarianSmith ARI 11 October 2010 10:24 Environmental Law and Native American Law Eve Darian-Smith Global and International Studies, University of California, Santa Barbara, California 93106; email: [email protected] Annu. Rev. Law Soc. Sci. 2010. 6:359–86 Key Words First published online as a Review in Advance on indigenous sovereignty, environmental racism, Indian gaming, August 10, 2010 Environmental Protection Agency The Annual Review of Law and Social Science is online at lawsocsci.annualreviews.org Abstract This article’s doi: This review seeks to engage two bodies of scholarship that have typ- 10.1146/annurev-lawsocsci-102209-152820 ically been analyzed as discrete areas of enquiry—environmental law Copyright c 2010 by Annual Reviews. and American Indian law. In the twenty-first century, native peoples’ All rights reserved involvement in environmental politics is becoming more assertive. In by University of California - Santa Barbara on 03/24/11. For personal use only. 1550-3585/10/1201-0359$20.00 this context it is necessary to think about the impact indigenous in- Annu. Rev. Law. Soc. Sci. 2010.6:359-386. Downloaded from www.annualreviews.org volvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental move- ments and environmental law in the United States, I turn to the histor- ical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understand- ing tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environ- mental law and global indigenous politics. 359 LS06CH18-DarianSmith ARI 11 October 2010 10:24 INTRODUCTION impact in terms of influencing some tribes’ sovereign status and capacity to be involved in This review seeks to engage two bodies of mainstream environmental policy. I conclude scholarship that have typically been analyzed by reflecting on the future of U.S. environ- as discrete areas of enquiry—environmental mental law in the context of increasing pressure law and American Indian law.1 It is no longer being exerted by international environmental tenable to cordon off American Indians and law and global indigenous politics. American Indian law as marginal to main- stream environmental law and policy. Native peoples’ involvement in environmental politics INTERSECTIONS AND is becoming more assertive in the twenty-first CONNECTIONS century, and in this context it is necessary to A vast body of literature exists on U.S. envi- think about the impact indigenous engagement ronmental law, politics, and policy with respect may have in shaping future U.S. environmental to both natural and built environments (e.g., agendas and regulations. Moreover, this review Rosenbaum 2008, Stell et al. 2003, Salzman & discusses how indigenous communities may Thompson 2003, Sussman et al. 2001, Vaughn present alternative ways of thinking about 2006). This literature deals almost exclusively sustaining natural resources that differ from with intergovernmental relations, whether dominant Western paradigms. These alterna- between federal, state, county or local gov- tive ways may—or may not—prove insightful in ernments within the U.S. domestic arena, or meeting the challenges of global environmental between nation-states in international environ- degradation. For these reasons, both realpoli- mental treaties and standards. Anglo-American tik and potentially self-serving, this review legal norms pervade these discussions and anal- explores some of the main issues at the inter- yses of environmental law-making, implemen- section of environmental law and American tation, and enforcement. The literature also Indian law. After briefly discussing the rise of focuses almost exclusively on regulation, or environmental movements and environmental a top-down, state-centered approach that has law in the United States, I turn to the historical people and companies responding to/resisting treatment of native peoples and in particular regulatory dictates. This focus tends to ignore the treatment of their natural resources. This the multiple perspectives that inform negotia- historical backdrop is essential to understand- tions over environmental management, and the ing tribal status today under the Environmental active roles various state and nonstate parties Protection Agency (EPA) and the challenges play in the performance of environmental some tribal governments now present to policy. environmental exploitation and degradation A glaring omission within most of the liter- by University of California - Santa Barbara on 03/24/11. For personal use only. by states and corporations. Notably, the EPA ature on environmental law is an acknowledg- Annu. Rev. Law. Soc. Sci. 2010.6:359-386. Downloaded from www.annualreviews.org is not the only governmental agency engaged ment of the increasing role of Native American in tribal-U.S. relations over the environment. governments in shaping environmental stan- For instance, the Fish and Wildlife Service dards and regulations on and off reservation within the Department of the Interior, not the lands. This omission reflects dominant attitudes EPA, administers the Endangered Species Act. toward native peoples that assume that tribes However, the EPA is the focus of this review are peripheral, if not irrelevant, to mainstream because it is by far the largest governmental society. In the vast body of writing on envi- agency charged with protecting human health ronmental law and policy, native peoples typ- and environment, and it has made the greatest ically warrant, at best, a brief mention (e.g., Layzer 2006, p. 2). In contrast to most en- 1Native American law is the more politically correct term; vironmental legal scholars, scholars of Indian American Indian law is the term used in legal practice. law as well as anthropologists, sociologists, and 360 Darian-Smith LS06CH18-DarianSmith ARI 11 October 2010 10:24 historians who study Native Americans have to approach the environment as something to long been involved in discussions of native peo- be conquered and controlled (White & Cronon ples’ relationship to the environment, particu- 1989, Cronon 2003). larly with respect to natural resources. These Different worldviews held by native and scholars have documented the role the envi- non-native peoples with respect to the envi- ronment plays in tribal jurisdictional authority, ronment have long created conflict over land social organization, cultural property, religion, and resource management. Who owns what, health, and economic and cultural stability (for who controls what, and how control is exer- example see Grijalva 2008, 2006; Brown 1999; cised have become questions involving friction Abramson & Theodossopoulus 2001). In addi- between Indians and non-Indians, and within tion, these scholars underscore the differences Indian tribes as well, particularly when eco- between native and non-native understandings nomic value is attached to natural resources. of nature, highlighting the variety of possible Tribal governments, with their own systems human-environmental relationships that exist of law and governance (Goldberg et al. 2003, among native and non-native communities and Richland & Deer 2009), do not always oper- the “culturally constructed nature of environ- ate according to the same logic prescribed by mentalism itself ” (Nadasdy 2005, p. 311; Tsosie federal and state legislation and governmental 1996; Ghua & Martinez-Alier 1997; Grinde agencies (Espeland 1998, Tsosie 2003, Argyrou & Johansen 1995, p. 23). A few legal schol- 2005). Moreover, tribal governments may— ars working on Indian environmental justice is- or may not—side with environmental activists sues, such as Williams (1994), note the domi- and nongovernmental organizations (NGOs) nant Western vision in U.S. environmental law against multinational corporations, and there that excludes native perspectives and have called may be division within tribes as well (Gedicks for this legal arena’s “decolonization.” 1993; Muehlmann 2009; Dombrowski 2001; When talking about Native Americans, it Igoe 2004; Nadasdy 2005, p. 292). This has led, is important not to treat all native peoples as across particular cases, to differences of opinion one homogenous category or to consider their on how best to approach respective rights to wa- thinking about nature as consistent across all ter, land, forests, rivers, fish, seeds, animals, and tribes and individuals. However, in broad ways, human remains (Coombe 1998, Oguamanam across the diversity of tribal associations, native 2006, Mihesuah 2000, Fine-Dare 2002, Brown peoples have historically thought of and inter- 2004, Soderland). Analyzing these conflicts, acted with nature very differently from Western scholars of indigenous peoples point out that societies. “Written and oral histories of many multiple systems of knowledge and legal con- Native American peoples indicate that their cul- sciousness are in play in these often tense nego- tures evolved over thousands of years largely in tiations over what constitutes natural and man- by University of California - Santa Barbara on 03/24/11. For personal use only. symbiosis with the earth that sustained them.” made environments and the