In 1976, Congress passed the Resource Conservation and Recovery Act (“RCRA”) to curtail the growing problem of disposing of hazardous waste and toxic substances generally. Decades prior, Congress established the Federal Tort Claims Act (“FTCA”) to hold the federal Government liable for tortious conduct the same way a private citizen would be. The federal government assumed the responsibility to ensure the wellbeing of Native Nations (“NN”). This is commonly referred to the “Trust Doctrine.” This duty stems from the settlement of Native American lands, and a recognition of the treaties entered into by the United States with a “moral [obligation] of the highest responsibility and trust” towards NNs. Although often necessary to encourage government action, the Discretionary Function Exception (“DFE”) to the FTCA, has substantially prevented private citizens from gaining redress for harms from toxic torts caused by the federal government. Like the DFE, the Snyder Act, 25 U.S.C. § 13 allows the discretion of the Secretary of the Interior for dealing with Indian Affairs. This note looks at strategies for the use of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), The Resource Conservation and Recovery Act (“RCRA”), The Snyder Act, and the Trust Doctrine to overcome the DFE for NN’s looking for ways to successfully bring FTCA claims against the government for Agency actions that are unacceptable for the environment and public health and safety.
"NOTHING IS OVER: FTCA CLAIMS FOR TOXIC TORTS ON NATIVE LANDS,"
American Indian Law Journal: Vol. 8:
1, Article 5.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol8/iss1/5