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Indian tribes retain their sovereign rights of self-government and self-determination unless it is specifically waived by the tribe or abrogated by the U. S. Congress, through treaty or statute. The Clean Water Act does not specifically abrogate tribal sovereignty. This raises the issue of what would occur if an on-scene coordinator decides that cleanup of tribal lands is necessary to protect the public health and welfare, but the tribe does not want the cleanup activities to proceed? May a tribe impede cleanup efforts? During the cleanup of the barge Nestucca oil spill, this occurred when the Quinault Tribe did not allow the OSC to clean lands that the tribe holds sacred. This issue with the Clean Water Act has not been decided by Congress, nor by the courts. Recently, courts have applied at least three different approaches to determine if a statute of general application, such as the Clean Water Act, applies to Indian tribes. The different tests do not always yield the same result. An on-scene coordinator, when confronted with this scenario, might handle the situation in several different ways, or perhaps move to prevent such an occurrence. The different approaches used by the courts can be taken together to gain a sense of whether the Clean Water Act may preempt tribal sovereignty.

APPLICABILITY OF THE CLEAN WATER ACT TO INDIAN TRIBES—MAY TRIBES STOP OR CONSTRAIN A CLEANUP?1