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A Broken Tribal/Federal Partnership on Pesticides

The partnership between the U.S. and Indian nations to control pesticide pollution is not functioning, according to a new research paper that suggests tribes be given broad control “to craft unique protections for their environment, land and tribal sovereignty.”

The paper, "Hold On to Tribal Sovereignty: Establishing Tribal Pesticide Programs that Recognize Inherent Tribal Authority and Promote Federal/Tribal Partnerships," has been posted on the Social Science Research Network by Jane Kloeckner, adjunct professor of law, University of Missouri, Kansas City School of Law.

According to the author, the current federal/tribal pesticide partnership is “dysfunctional,” because “the tribal/federal partnership under FIFRA (the Federal Insecticide, Fungicide and Rodenticide Act) is overwhelmingly federal, while the role for tribal governments is limited.”

In addition to “weak” provisions in FIFRA, the problem also comes from “pesticide regulations and guidance from the United States Environmental Protection Agency (EPA).”

According to the abstract of the article posted on SSRN, “longstanding EPA policy choices have resulted in inadequate environmental protection against potential misuse of pesticides in Indian country.”

In particular, “EPA has not interpreted FIFRA as authorizing tribal governments to be the primary enforcement authority.”

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Kloeckner writes “Tribal governments should be eligible to implement pesticide control programs as co-regulators in partnership with EPA.” The abstract says that except for eight reservations," pesticide applicators cannot be certified in Indian country to apply restricted use pesticides.”

The co-regulator partnerships would be a good way for the United States to demonstrate “leadership in collaborative partnering with indigenous peoples for the broader international community.”

Environmental governance “is one of the best places for tribes to exercise inherent authority,” says Kloeckner, “because in general, but not always, tribal lifeways, cultural values and traditions are compatible with federal environmental laws.”

The paper suggests reforms to FIFRA such as:

  • EPA should allow tribes to be eligible for primary enforcement.
  • EPA “should provide continuing federal assistance, technical, administrative and financial to tribal governments for building and maintaining tribal pesticide programs as tribal institutions.”
  • The co-regulator partnership must be flexible.

“Inside or outside Indian country, FIFRA and its regulations must support minimum federal standards that protect human health and the environment and a level playing field for pesticide users,” the paper concludes.