Equal Standing with States: Tribal Sovereignty and Standing after Massachusetts v. EPA

Abstract

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to “special solicitude” in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes — which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure — entitled to “special solicitude” as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. EPA; and reaching conclusions about the case’s driving principles. We conclude that one of the main reasons states get special solicitude is because they have, through federal preemption, lost much of their regulatory power. We then discuss the nature and scope of Indian sovereignty, canvassing the historical and legal narrative and where things stand today. We also note some of the key similarities and points of distinction between tribal and state sovereignty. From there, we put it all together, arguing that tribes (as sovereign entities) should enjoy the same special solicitude given to states in the standing context. We conclude that tribes are on the whole better positioned to advocate for environmental causes, making the case all the stronger for enhanced tribal standing.

Keywords: environmental law, Indian law, native american law, sovereignty, standing, Massachusetts v. EPA, climate change, global warming