The Decline of the Administrative State and its Potential Effects on Tribal Sovereignty
Manuel Lewis*
I. Abstract
The federal government of the United States, including federal agencies, owes a trust responsibility to Tribes. The contemporary federal administrative state has given greater authority over agency decisions to the federal judiciary while simultaneously reducing government funding for various agencies’ operations. As a result, it is unclear that the federal government will continue to adhere to its trust responsibility in agency actions. Failure to account for Tribal governments in the current administrative state is a violation of the United States’ duty to Tribes and calls for greater advocacy to ensure the protection of Tribal interests—both in federal agencies and in federal courts.
II. The Tribal-Federal Relationship
Federal Indian law is the doctrine that defines the relationship between the governments of the 574 federally recognized Tribes[1] and the federal government of the United States.[2] The start of this relationship began with treaties enacted between Tribal governments and the federal government.[3] Many of these early treaties centered around the United States’ need for military assistance during the Revolutionary War.[4] The treaty making from this era continued during the formation of the United States government; Native American Tribes were a necessary consideration during the Constitutional Convention, ultimately being acknowledged as governments[5] (and their citizens separately as individuals)[6] in the newly formed nation’s founding charter.
The nature of signing treaties with Tribes to acquire their land and resources[7] was a recognition of their statuses as independent sovereigns qualified to self-govern.[8] Indeed, the federal judiciary has acknowledged that the power of Tribes to self-govern is inherent to them as political bodies: “That Congress has in certain ways regulated the manner and extent of the [T]ribal power of self-government does not mean that Congress is the source of that power.”[9] The evolution of the doctrine of federal Indian law has consisted of repeated attempts by Tribes to fully actualize that sovereignty, and to enforce the federal government’s trust responsibility under treaties.
However, within the federal judiciary, federal Indian law decisions have often consisted of efforts to limit Tribes’ sovereignty and the federal government’s responsibility. This is evidenced early in the doctrine’s development limiting Native people’s ability to own land[10] and defining Tribal governments as inferior to Western counterparts[11] with no reasoning beyond relegating the “savagery” of Indians to a subhuman capacity beyond what the civilized law of the United States would recognize. As recently as 2022, a pattern of baseless encroachment into the long-recognized sovereign power of Tribes by the Supreme Court has continued.[12]
Nevertheless, in what is now the United States, the government-to-government relationship between Tribes and the federal government has evolved and spans far beyond the executive branch’s role in treaty making utilized at the nation’s founding. The intergovernmental relationship implicates other executive authorities, such as federal agencies, as well as the other branches of the federal government.[13]
Some agencies, such as the Environmental Protection Agency (EPA), interact with Tribes more often than others, and better understand their obligations to Tribes better because of this exposure. The EPA has formally recognized its trust responsibility as an actor in the federal government for almost its entire existence.[14] This acknowledgement followed the federal courts’ own recognition of the same responsibility in a similar context (approving increasingly stringent Tribal air quality standards): “[i]t is fairly clear that any Federal government action is subject to the United States’ fiduciary responsibilities toward the Indian [T]ribes.”[15]
In 1984, the same year that the EPA published its acknowledgment of its trust obligation to Tribes, Tribal reliance on the EPA’s acknowledgment gained security following the Supreme Court’s decision in Chevron.[16] The security in agencies’ fiduciary responsibilities to Tribes became a cornerstone of the Tribal-federal relationship because Chevron was applicable to all federal agencies that were charged with enforcing and interpreting federal statutes;[17] that is, until last year.[18]
III. The Clean Water Act & Albuquerque v. Browner: A Case Study
The Clean Water Act (CWA) affords specific regulatory powers, equivalent to states’, to certain Tribes who meet relevant statutory standards.[19] In 1992, the EPA, the administrator of the Act, approved the Pueblo of Isleta for treatment as a state.[20] Isleta created stringent water quality standards for the middle Rio Grande that runs through their reservation; their water standards were stricter than the existing standards currently implemented by the state of New Mexico.[21] The city of Albuquerque had a waste treatment facility that discharged into the Rio Grande, upstream from the portion of the river that ran through Isleta, in accordance with the existing regulations from New Mexico.[22] When the EPA approved Isleta’s water regulations, Isleta enforced the stricter standards on Albuquerque as an upstream polluter.[23] Albuquerque filed suit on the basis that the EPA’s approval of Isleta’s standard was at odds with the CWA, and argued that the more stringent standards in place by Isleta should not have been enforceable beyond the reservation.[24]
The court deferred to the EPA’s approval of Isleta’s regulations and its enforcement of those regulations as aligned with the statutory text as required by Chevron,[25] ruling against Albuquerque. The CWA provided that states had inherent sovereign authority to enact stricter standards than the federal government, but did not incorporate the section that provided such sovereignty in its grants to Tribes.[26]
Despite the controversy being one centered around delegated authority in the CWA, the inherent sovereignty of Isleta and its interests in protection of its water resources informed the reasoning of the Tenth Circuit. The court refused to infer that this omission implied that Isleta lacked the same sovereign authority as states because Tribal sovereignty had been long recognized, even absent an express conferral in the CWA: “Congress’ failure. . .does not prevent Indian [T]ribes from exercising their inherent sovereign power to impose standards or limits that are more stringent than those imposed by the federal government.”[27] The decision in Albuquerque v. Browner is one of the isolated instances that the court has endorsed the enforcement of Tribal law or regulations outside of Indian Country, albeit by the power delegated to them from a federal statute (and the agency tasked with that statute’s enforcement) rather than a Tribe’s own inherent sovereignty.[28]
IV. The Full Scope
While the Albuquerque case is illustrative of federal agencies acknowledging Tribal sovereignty and delegating authority to Tribal regulations, the continuing, current decline of the federal administrative state has broad implications for Tribes beyond the EPA’s administration of the CWA.
As recently as 2024, the EPA has stated expressly that its acknowledgement of the trust responsibility is a “cornerstone” of its Indian program.[29] Part of its trust responsibility includes the enforcement of Tribal environmental regulations when they affect environmental resources in Indian Country.[30] The same treatment-as-a-state statutory provision exists in other key environmental statutes, such as the Clean Air Act[31] and the Safe Drinking Water Act that the EPA also enforces on behalf of Tribes.[32] The EPA has interpreted the treatment-as-a-state provision to extend to the Toxic Substances Control Act and Emergency Planning Community Right to Know Act, as well.[33]
The devastation of the administrative state by the Court’s decision in Loper Bright is, at best, a negative implication for Tribal sovereignty and, at worst, a direct violation of the acknowledged trust responsibility that the United States government owes to Tribes. Tribal governments’ understanding and reliance on federal actors will falter if long-standing legislative provisions that delegate authority to them (such as § 1377(e) in the CWA) are undermined, along with the judiciary’s deference to agencies’ interpretations of those provisions that give due credence to Tribal sovereignty.
Beyond solely enforcing environmental legislation, Tribal governments frequently collaborate with other federal agencies. There are numerous other federal agencies who provide services to either individual Native Americans or Tribal governments.[34] During previous White House administrations, more than 30 agencies had direct resources for Tribes.[35] The scope of the potential for harm is more fraught given the current presidential administration’s continued attacks on federal agencies[36]— many of which are directly relied upon by Tribes[37]— under the guise of increasing government efficiency.[38]
These attacks on the availability of funding for Tribal programs, combined with the historically anti-Tribal[39] federal judiciary’s newfound power to review agency determinations, means that there is a greater need than ever for Tribal advocates to be a part of the judicial decision-making process of the rulings. This is especially true for rulings about complex regulatory schemes like the CWA that still demand a respect for Tribal sovereignty and the government-to-government relationship between Tribes and the United States. Tribal leaders are already at work in their involvement in protecting Tribal interests.[40] Under the current regime, though, there are countless other opportunities for other Tribal advocates in the judicial process of reviewing agency determinations. Counsel for Tribal parties and law clerks are situated well to ensure that decisions impacting Tribal interests are properly reflective of both a respect for Tribal sovereignty and an understanding of the government-to-government relationship that are foundational to federal Indian law, even amidst a changing judicial landscape.
* Manuel Lewis is a Junior Editor for the Michigan Journal of Environmental and Administrative Law. He is akimel otham, a first descendant of the Gila River Indian Community. Manuel’s family comes from uhs kehk (Blackwater Village, District 1) in Gila River. He can be reached via email at manlew@umich.edu.
[1] Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944, 946 (Jan. 8, 2024).
[2] Cohen’s Handbook of Federal Indian Law 1 (Nell Jessup Newton ed., 2012) [hereinafter Cohen’s Handbook].
[3] See, e.g., Treaty of Fort Pitt, U.S.- Del. Nation, Sept. 17, 1778, 7 Stat. 13.
[4] Id.
[5] U.S. Const. art. I, § 8, cl. 3.
[6] U.S. Const. art. I, § 2, cl. 3.
[7] See, e.g., Treaty with the Osage, U.S.-Great and Little Osage Tribes of Indians, art. 1, Dec. 30, 1825, 7 Stat. 240 (“The Great and Little Osage Tribes or Nations do, hereby, cede and relinquish to the United States, all their right, title, interest, and claim, to lands. . .for such considerations, and upon such terms as are hereinafter specified, expressed, and provided for.”).
[8] Cohen’s Handbook, supra note 2, § 4.01[1][a].
[9] United States v. Wheeler, 435 U.S. 313, 328 (1978).
[10] Johnson v. M’Intosh, 21 U.S. 543, 590 (1823) (“But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war. . .To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people, was impossible. . .”).
[11] Cherokee Nation v. Georgia, 30 U.S. 1, 94 (1831) (“The Indians were considered as tribes of fierce savages. . .They are not named or referred to in any part of the opinion of the court as nations or states, and no where declared to have any national capacity or attributes of sovereignty in their relations to the general or state governments.”).
[12] See Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) (holding, without any citation to precedent, for the first time in history that a state has criminal jurisdictions for crimes against Indians by non-Indians in Indian Country, reacting to and infringing on Tribes’ newly expanded jurisdiction following the Court’s reestablishment of reservation lands in McGirt v. Oklahoma, 591 U.S. 894 (2020)).
[13] United States v. Kagama, 118 U.S. 375 (1886) (establishing Congress’ plenary power over Indians).
[14] U.S. Environmental Protection Agency, EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984), https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf (“EPA recognizes that a trust responsibility derives from the historical relationship between the Federal Government and Indian Tribes as expressed in certain treaties and Federal Indian Law. In keeping with that trust responsibility, the Agency will endeavor to protect the environmental interests of Indian Tribes when carrying out its responsibilities that may affect the reservations.”)
[15] Nance v. EPA, 645 F.2d 701, 711 (9th Cir. 1981).
[16] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (holding that the judiciary should defer to federal agency interpretations of a law if the law is ambiguous or otherwise unclear).
[17] Id.
[18] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) (expressly overruling Chevron, 467 U.S. 837).
[19] 33 U.S.C. § 1377(e).
[20] Albuquerque v. Browner, 97 F.3d 415, 419 (10th Cir. 1996).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Chevron, 467 U.S. 837.
[26] Albuquerque, at 422.
[27] Id.
[28] Id. at 423 (“. . .tribes are not applying or enforcing their water quality standards beyond reservation boundaries. Instead, it is the EPA which is exercising its own authority in issuing…permits in compliance with the downstream state and tribal water quality standards”).
[29] U.S. Environmental Protection Agency, EPA Policy for the Administration of the Environmental Program on Indian Reservations (EPA Indian Policy) (July 18, 2024), https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-epa-indian-policy.
[30] U.S. Environmental Protection Agency, supra note 14.
[31] 42 U.S.C. § 7601(d).
[32] 42 U.S.C. § 300j-11(a).
[33] U.S. Environmental Protection Agency, Tribal Assumption of Federal Laws – Treatment as a State (TAS) (Jan. 14, 2025), https://www.epa.gov/tribal/tribal-assumption-federal-laws-treatment-state-tas.
[34] Northwestern University Libraries, U.S. Federal Documents, https://libguides.northwestern.edu/usdocs/nativeamericans (Last visited Mar. 30, 2025).
[35] The President Obama White House, Additional Federal Agency Resources, https://obamawhitehouse.archives.gov/nativeamericans/resources (Last visited Mar. 30, 2025).
[36] Exec. Order No. 14210, § 3(b), 90 F.R. 9669 (Feb. 26, 2025).
[37] See supra notes 34–35; see also United States Department of Government Efficiency, Savings Wall of Receipts (2025), https://doge.gov/savings (announcing plans to terminate leases for 41 total offices across the Bureau of Indian Affairs, Indian Health Services, National Indian Gaming Commission, and Department of the Interior; not to mention numerous other funding cuts directly to contracts between various federal Indian departments or agencies and the EPA).
[38] Exec. Order No. 14158, § 1, 90 F.R. 8441 (Jan. 20, 2025).
[39] Philip P. Frickey, Address at University of Kansas Conference on Tribal Law and Institutions, Feb. 2, 2008: Tribal Law, Tribal Context, and the Federal Courts, 18 KAN. J.L. & PUB. POL’Y 24, 29 (2008) (summarizing federal Indian law: “The federal judiciary has perhaps already cut most of the legs out from under tribal institutions with respect to all but the regulation of the tribe’s own members.”).
[40] Jourdan Bennett-Begaye, Federal budget cuts ‘cause real harm to tribal communities,’ ICT News (Feb. 26, 2025) https://ictnews.org/news/-federal-budget-cuts-cause-real-harm-to-tribal-communities (nearly 100 Tribal leaders appearing before the House Appropriations Subcommittee on Interior, the Environment, and Related agencies to define the needs and protections for Tribal nations).