Comment, The Developing Test for State Regulatory Jurisdiction in Indian Country: Application in the Context of Environmental LawOregon Law Review (1982)
AbstractThe extent of state jurisdiction over Indians and Indians lands has created conflicts between the federal, state, and tribal governments since the nation's inception. Congressional responses to this inveterate problem have fluctuated significantly. At times, Congress has favored the assimilation of Indians into the majority society and the destruction of tribal identities, with consequent increases in state jurisdiction. At other times, Congress has favored separatism for Indians and the preservation of tribal cultures and governments. In 1832, the Supreme Court, in the case of Worcester v. Georgia, held that state laws had no effect within Indian reservations. Since Worcester, the Court has allowed increasingly significant state incursions into tribal sovereignty in response to state pressures. In two landmark cases, Williams v. Lee in 1959 and McClanahan v. Arizona State Tax Commission in 1973, the Court attempted to resolve a morass of decisions into a coherent doctrine of state jurisdiction in Indian country. Each case not only upheld greater state incursions into tribal sovereignty than permissible under previous decisions but also heralded even further incursions. States are likely to seek these unprecedented incursions in the context of environmental law with an eye toward the Indian lands that are rich in mineral resources. Part I of this Comment will trace the development of state jurisdictional doctrine from the Worcester tribal sovereignty doctrine through the Willams infringement test to the McClanahan preemption analysis. Part II will then explore the recent cases involving state regulatory jurisdiction. Based on those cases, this Comment will project what test the Court is developing for state regulatory jurisdiction. Part III will then apply the projected test to four hypothetical situations within an environmental regulation context. The Comment finally will examine the implications of the test in the environmental context and will suggest how tribes may avoid increased state incursions.
- Indian law,
- state incursions,
- environmental law
Citation InformationStephen M. Feldman. "Comment, The Developing Test for State Regulatory Jurisdiction in Indian Country: Application in the Context of Environmental Law" Oregon Law Review Vol. 61 (1982)
Available at: http://works.bepress.com/stephen_m_feldman/37/