wants tribal water ruling reconsidered
NOVEMBER 6, 2001
Having lost the latest round in a long battle against tribal
sovereignty, the state of Wisconsin is asking a federal
appeals court for a second chance to prove the Sokaogon
Band of Ojibwe shouldn't control the quality of water on
the Mole Lake Reservation.
In September, the 7th Circuit Court of Appeals upheld the
tribe's right to enact tough water standards, even if they
affect non-Indians elsewhere. By unanimous decision, a three-judge
panel of the court said the tribe "demonstrated that its
water resources are essential to its survival" and should
be allowed to develop its own programs.
But the state on Friday asked the full panel of the court
to hear the case all over again. If the court agrees, Wisconsin
will get another chance to convince 11 judges it is sole
The dispute centers on a still controversial set of regulations
implemented during the Clinton administration. Under the
Clean Air Act and the Clean Water Act, the Environmental
Protection Agency is allowed to treat tribes as states.
The designation recognizes a tribe's authority to enact
environmental standards that have an impact beyond reservation
borders. For this reason, a number of states and industry
-- whom EPA officials call "the usual suspects" -- have
challenged the treatment as states, or TAS, program.
in the case at hand, a mining company's plans for a 55 million-ton
zinc-copper sulfide mine would be limited by the TAS designation
for the Sokaogon Band of Lake Superior Ojibwe. The mine
would be located about a mile upstream from the reservation
and the tribe's water standards could be so high as to make
the project unfeasible for both the company and the state,
which stands to benefit financially.
The mine has drawn the opposition of tribal officials, members
and environmentalists. In particular, tribal members who
depend on Rice Lake for food, water, medicine and other
subsistence purposes say the project would devastate their
The tribe's reliance on the lake helped convince the 7th
Circuit of the necessity of the TAS designation. Additionally,
the court considered that all 1,850 acres of the reservation
Since the ruling was unanimous, there isn't any indication
that the state would succeed the second time around. But
that hasn't stopped states throughout the country from continuing
to challenge tribal authority.
Earlier this year, New Mexico, South Dakota, Michigan and
Nevada asked the Supreme Court to invalidate clean air regulations
affecting Indian Country. The Supreme Court declined to
hear the case in March.
New Mexico previously took its water dispute with Isleta
Pueblo to the Supreme Court and lost. Wisconsin has been
more successful -- the threat of litigation forced the withdrawal
of TAS designations for three tribes.
If the full panel of the 7th Circuit agrees to rehear the
case, it take up to another year for a decision to be handed
down. Barring a reconsideration, the state could also seek
Supreme Court review.
Get the Case:
OF WISCONSIN v. ENVTL. PROT. AGENCY, No 99-2618 (7th
Cir. September 21, 2001)
Ban Cyanide at Crandon Mine - http://www.alphacdc.com/treaty/cyanide.html
American Indian Environmental Office, EPA - http://www.epa.gov/indian
Related Stories: Wis.
might appeal Ojibwe decision (9/25) Challenge
to tribal authority rejected (9/24) Court
rejects challenge to tribal authority (4/17) EPA
Budget: No new tribal grants (4/13) Pueblo
battles arsenic in water standard (4/16) EPA
attorney pleads guilty (06/28)
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