Tribal Sovereignty and the Problem of Difference in Environmental Regulation: Observations on “Measured Separatism” in Indian Country

Abstract

Abstract: The legal and juridical sovereignty of American Indian nations is supposed to help Native peoples maintain their own distinct political and cultural communities. In the context of environmental issues, this means that tribal governments have both the inherent and statutory right to set their own environmental standards, which have the potential to protect tribal peoples and their natural resources in culturally relevant ways. In the past, the US Supreme Court has sought to curtail this kind of sovereignty when the due process of non‐Indians might be hindered. In this article, we look at why tribal environmental sovereignty can and should address the issues of due process in the context of environmental regulation in tribal borders, and make a call for this to be done in a way that supports American Indian tribal sovereignty. Moreover, we connect these issues to the current legal and juridical struggles of other environmental justice groups and the need for more meaningful participation in environmental regulation within the nation‐state for all cultural minorities.

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