Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory

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Elizabeth Ann Kronk Warner

Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the first article to examine how tribes are already innovating in areas of environmental law outside of tribal codes. The article begins with an examination of federalism and its benefits, such as states as laboratories, typically attributed to the system of federalism. Having provided an introduction, the article then explains how federalism itself is not required to achieve the benefits associated with it, arguing that tribal regulatory experimentation can yield similar results. Next, the article establishes the modern-day need for environmental regulatory experimentation given the lack of innovation occurring at the federal level. And, finally, the article takes a deep look into forms of tribal environmental law related to the regulation of environmental pollution and climate change other than code provisions. Such an examination is particularly helpful given the potential for governments to use such legal tools to fill existing regulatory gaps and the ease with which innovations in this field can be diffused amongst other governments. Having considered these other forms of tribal environmental laws, the article then develops some initial thoughts of how tribes, the states and the federal government may benefit from innovations occurring within the tribal environmental laboratory. Tribal environmental law is particularly exciting given its ability to transcend federal and state environmental law. This section of the article then ends with a call for additional tribal environmental innovation within this area. Ultimately, the article concludes that, by enacting environmental laws to meet their unique tribal needs, many tribes are creating and innovating in the field under their unique powers as separate sovereigns within the United States.

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