Late March 1994
The Search For Environmental Justice In Indian Country
by Gail Small
Lame Deer, Montana
Tribes are major players in the environmental justice
movement in the United States. AS the original landlords of this
country, they identify themselves as the first environmentalists.
Today, Tribes find their Reservation homelands being
aggressively sought after for their vast energy resources and as the
dumping grounds for America's waste. Instability and depletion of
world energy supplies have served to focus attention on America's
"stable" domestic energy reserves and the most vulnerable reserves
appear to be on Reservations.
Regulatory loopholes in federal environmental statutes have
made Reservations very enticing to potential polluters, including
the federal government itself.
The environmental battles being waged across Indian Country
are much the same. The players and the resources vary, but the
manipulative dynamics of oppression are the same. The federal
agencies, energy corporations and private speculators all want to
either dump nuclear waste or get rich off Indian land.
Promises of overnight wealth to communities of
economically impoverished Tribes serve to divide and conquer the
people. The tragic irony is that the real loser is the American
public; for what is at stake is the last remaining knowledge
possessed by the indigenous people of the natural curative powers
of the spiritual environment of the United States.
Americans are so ignorant of their own history that they
would rather fight for the rainforest than the battle being waged
in their own backyards.
Tribes own over one-third of the low sulfur coal west of
the Mississippi, as much as one half of the privately-owned uranium
in the country, sizeable reserves of oil, natural gas, and oil
shale. The tribes also have first call on much of the valuable
water resources in the west and the right to at least 50% of the
harvestable number of fish in the pacific northwest.
Aside from these quantifiable natural resources, tribes
possess indigenous cultures and religions that are premised upon
the natural environment of this country. The recent amendments to
the American Indian Religious Freedom Act codify the tribal belief
of the spiritual interrelatedness of the environment.
It is not possible to quantify or mitigate the spiritual
nature of the environment. As an elder of my Tribe emphatically
states, "There is no word in our language for mitigation. We cannot
even understand the concept."
Opposing world views of life separate our understanding of
the environment. Let us begin with a brief look back into history
to see where we are heading today.
Reservations are the homelands of the indigenous people of
the United States. It is difficult for most Americans to grasp the
simple fact that indigenous peoples lived in the United States
prior to European arrival.
Beautiful cultures, languages, and sustainable economies
flourished under the Indian Tribes. The Tribes had highly
sophisticated systems of government and religion. An international
system of trade and barter among the Tribes served to diversify
their economies. Inter-Tribal alliances for war, peace, and
religious ceremonials were established and nurtured among the
Tribes.
Tribes fiercely resisted attempts to destroy their culture
and take their lands. An example is the Three Allied nations
(representing the Cheyenne, Sioux, and Arapaho Tribes) who came
together for war and religious ceremonials. It was these three
Tribes who were celebrating summer ceremonials along the Bighorn
River in southeastern Montana when George Armstrong Custer and his
Seventh Calvary attacked them in 1876.
The Three Allied Nations defeated Custer on that hot
summer afternoon and the story goes that when the American flag
went down on the Battlefield, the Tribes picked it up and counted
coup (victory) on the US.
I remember hearing the old people tell this story often
when I was growing up in Lame Deer and it always ended with the
moral that war does not bring peace. The war stories of the Indian
people's fight for their survival are re-told on the Reservations
across the country as if they occurred yesterday.
Today, Reservations represent the American legal quid pro
quo. In return for having relinquished claim to thousands of acres
of their aboriginal lands, the Tribes reserved for themselves a
homeland and various other rights in the treaties they negotiated
with the US.
The premise of the Reserved Rights Doctrine is that the
treaties were not a grant of rights to the Indians, but rather a
reservation of rights already possessed by them and not granted
away. Many judicial decisions have complicated what is now known as
tribal sovereignty, but the fact remains that Reservations were
negotiated for the purpose of establishing permanent homelands for
the Tribes.
Of paramount importance to understanding environmental
issues in Indian Country is knowing who the players are and their
respective roles. Here again, the historical relationship Tribes
have to the lands comprising what is now the United States dictate
certain fundamental principles.
There exists a unique trust relationship between the
federal government, specifically Congress, and the Indian Tribes.
The trust relationship requires that any action by the federal
government, or its agencies, affecting Indian property or rights
must be consistent with the most exacting fiduciary standards.
The principles of federal preemption and the trust
relationship have resulted in a "love-hate" relationship between
Tribes and the federal government. The federal trustee assets
plenary power over Indian Tribes under the legal rhetoric that we
need protecting. It is difficult however, for the Tribes to sue the
trustee for a breach of trust.
What really rankles the Tribes today is that only a dime of
every dollar appropriated by Congress for Indians ever reaches the
Reservations. Most of the monies are eaten by the massive
bureaucracy of the BIA.
In fairness however, the federal trust relationship has
served to effectively limit state jurisdiction over Indian affairs,
which results in the protection of Indian rights and resources.
Furthermore when Tribes assert their right of self-government the
states are prohibited from interfering with that right.
With this background in mind, it becomes clear that Tribes
are much more than a racial minority. Indeed, they do not share the
general assimilation goal of most minorities. Cultural ties to the
land and the Tribe often preclude the option of permanently leaving
the Reservation for many individuals. The uniqueness of Tribes can
perhaps best be understood when one realizes that they have
survived one of the sorriest chapters in mankind's history and that
they have survived with their culture and their sovereign right of
self-government intact.
The right of self-government is critical to understanding
the role Tribes have in protecting their environment. as
governments, Tribes have the legal authority to regulate their
environment. As landowners, they have the right to protect their
property. Full proprietary and police powers vest in the Tribes the
clear authority to protect their environments. And tribal courts
have the legal authority to enforce tribal environmental laws
within the jurisdiction of the Reservation.
With such strong legal authority, why is it so difficult
for Tribes to protect their environments? No significant federal
assistance has ever been provided to develop tribal government
infrastructure to protect Reservation environments. Shouldn't the
federal trust responsibility to Indian Tribes mandate protection of
Reservation environments? Such is the nature of this "love-hate"
relationship between the Tribes and the federal government.
Rarely is there money in the federal bureaucracy for
cultural and environmental needs. I find it ironic, however, that
federal monies always miraculously appear to study and develop coal
stripmines, uranium mines, and nuclear waste dumps on Reservations.
Let's begin our assessment of environmental justice in
Indian Country from a practical Reservation perspective. To bring
it closer to home, let's take a look at my Reservation.
My Tribe, the Northern Cheyenne, lives on 500,000 acres of
beautiful ponderosa pine country in southeastern Montana. Our
Reservation has tremendous cultural significance to the Tribe.
After the Cheyenne defeated Custer at the Battle of the
Little Bighorn they were marched as prisoners of war to Oklahoma
Indian Territory. Tribal oral traditions are clear that in
Oklahoma, the Cheyenne were quickly dying of malaria and other
diseases.
The people agreed that they would rather die fighting to
get back to their beloved northland than die from the white man's
diseases and as his prisoners. The people told the US government
agent that they were leaving for their homeland and asked him to
please, let them get a short distance from the fort before they
made the ground bloody.
A few hundred Cheyenne eventually survived to reach our
beloved northland, the Reservation we live on today. Our
reservation thus represents the blood and tears of our grandparents
who so willingly gave their lives so that we might live.
In just a couple of generations the Cheyenne now find their
Reservation being surrounded by this country's largest coal
stripmines. Coal-fired power plants, railroads and electric
transmission lines supply the energy needs of Minneapolis and the
cities of the west coast, including Los Angeles.
The recent Clean Air Act Amendments favor the quality of
coal found in our area and as a result, the coal boom will
continue.
Plans are to open up the Powder River Country (the
Cheyenne's best hunting grounds) by building the Tongue River
Railroad directly along my Tribe's major water source, the Tongue
River. Our most traditional village, the Birney community, is
located directly across the River from the proposed railroad and
the five new coal mines.
Since I was in high school, I have been involved in my
Tribe's fight to protect our Reservation and the environment of
southeastern Montana. It was during this time, the early 1970's,
that the Cheyenne people learned the horrifying news that our federal
trustee, the BIA, had leased over one-half of our Reservation to the
coal companies for stripmining. Cheyenne coal was sold for 11 cents
a ton and no environmental safeguards were in the coal leases. The
fight was on and every resource our small Tribe had was committed to
this battle.
I was with a group of young Cheyenne whom the Tribe sent to the
Navajo coal mines and then on to the coalfields of Wyoming. The
enormity of our situation frightened and angered us.
After college, I served on the tribal negotiating committee
charged with voiding these coal leases. I was twenty one years old,
the youngest on my committee and the only one with a college
degree. We were fortunate to find a very capable young attorney
with a passion for Indians and for justice because we were suing
our federal trustee and the coal companies, both formidable
opponents.
It took almost fifteen years before the Cheyenne Tribe convinced
Congress to void the coal leases. Fifteen years of anxiety and
sacrifices by the people.
I wish there was a happy ending to tell you. Unfortunately, the
battle is still waging because Cheyenne coal is now even more
valuable and sought after. Personally, I feel that I have lived a
lifetime fighting the coal stripmining and I long for a better
life for my Tribe.
The sacrifices continue as more battles appear on the horizon.
The Cheyenne people have sacrificed in-door plumbing, roads, and
schools for the environmental integrity of this region. It is no
small matter. The elderly man who lives next door to my office has
to use an outdoor toilet and right now it is twenty degrees below
zero.
We are currently fighting for a high school for our 400 high
school age students, and the coal boom towns, with all their money,
are determined to stop us. The Cheyenne people, like most Tribes,
are waging many battles on many fronts and with few allies.
When I was a young native tribal sociologist, before I went to
Law School, I told the Tribe to request help from the big white
environmental organizations. The coal stripmining is occurring
primarily on federal public lands, on lands that are pristine
wilderness areas, so I thought it would be easy to enlist their
support. Only a few Indians and some white ranchers lived in this
isolated area of Montana. Apparently, we were not considered a
"sexy" funding issue because no one responded to our calls for
help, except the few white ranchers living in the impacted area.
Seeing the coal stripmines growing larger and coming closer to
the Reservation, the Cheyenne tribal leaders decided we must
protect our air quality. In 1977, the Tribe redesignated its entire
reservation air quality to Class 1 pursuant to the Federal Clean
Air Act Significant Deterioration Amendments.
Federal environmental statutes were an option we chose to
protect our Reservation's environment. Implementation and
enforcement of our Class 1 air Quality proved to be a bureaucratic
nightmare, however.
The Cheyenne Tribe had to lead the US Environmental Protection
Agency (EPA) by the hand for over ten years before they
acknowledged that we were a government, with a right to establish a
Tribal Air Quality Implementation Plan that riggered funding and
enforcement authority. Almost twenty years later, we are still
fighting to enforce our Air Quality.
With few dollars of our own, the Tribe was eventually forced to
go to the coal companies for a settlement agreement that would
provide the funds needed to establish air monitoring stations on
our Reservation.
The young Cheyennes call this institutional racism from the
agency responsible for protecting America's environment, the EPA.
The wise Tribal President, who has since passed on, told me I was
young and naive and I must learn to strategize according to the
premise that we have few allies.
Yes, there are federal environmental laws and many are now
being amended to acknowledge tribal primacy. They are paper laws
and paper tigers without the concomitant funding to enforce them.
We have learned this the hard way on the Cheyenne Reservation and
the same lesson is being learned across Indian Country today.
Some Tribes are now drafting and enacting their own tribal
environmental laws. This is a very necessary assertion of tribal
self-government. Tribal government infrastructure is desperately
needed on Reservations. Few tribal governments have established
environmental departments.
My Tribe is probably a good example - one professionally
trained staffperson and two support personnel to manage a
Reservation environment which is being surrounded by this country's
largest coal stripmine. These three people are also responsible for
managing the tribal buffalo herd, as if they had nothing else to
do.
On the Fort Belknap Reservation in central Montana my good
friend, Rose Main, heads up a two person tribal water quality
office. Her Reservation is being surrounded by this country's
largest cyanide-leach gold mine on lands that are sacred to her
Tribe. She cried as she told me of the health problems being
experienced by the children in her Tribe, who live directly
downstream from this gold mine.
Rose called me recently to see if I had any ideas for locating
scientists to gather data and help her. The national Indian
organization providing "technical assistance" to energy impacted
tribes had promised her the study over six months ago and she was
still waiting. The question she posed to me was, "Where do we find
the money to protect the people?" And she added sarcastically,
"Don't tell me to ask the gold mine."
Gold, coal, uranium, water, nuclear waste: Indian Tribes and
their homelands are under siege and this is no exaggeration. The
bottom line is we need help. We need professionally trained
scientists to begin gathering the data to establish tribal
regulatory agencies - agencies that should have been created fifty
years ago by our federal trustee.
Tribes desperately need economic development options on the
Reservations. The people want and need jobs to build a better life
for themselves. The choices should not be simply a bag of gold or
jobs.
This is economic blackmail. The n=energy companies, the
government agencies and individual speculators have learned how to
manipulate the economic poverty of the Reservations to get tribal
natural resources.
Band-aide approaches, dealing with the crisis; this is the norm
for environmental programs on Reservations today. The consequences
are very grave when one realizes that the environmental issues
confronting Tribes are of the magnitude of this country's worst
Superfund Sites.
The people are getting worn down from the constant fighting.
The prayers of the sweat lodge, the sundance, and the peyote water
drum, the songs of the salmon: they are still strong across Indian
Country.
We need allies now; professionally trained scientists, economic
development specialists, and we need the whitemen's strongest
weapon - money.
Tribal environmental protection agencies must be adequately
funded and staffed to implement tribal environmental laws.
The tribal courts similarly must be provided the resources
necessary to enforce the environmental laws of the Reservation.
It is not enough for the Tribes' federal trustee to simply
amend environmental statutes by acknowledging Tribal governments
for "substantially the same treatment as a state." The EPA's Office
of Environmental Equity (don't you just love that name?) recently
held a Tribal Issues Work Group at eight locations nationwide.
The Tribal delegates very clearly informed the EPA that it has
never fully implemented either the spirit or the letter of the law.
Tribes are frequently an afterthought, they stated, and pointed to
the recent amendments acknowledging Tribes in the various
environmental statutes as examples. Indeed, some Tribes found the
term "treatment as states" to be offensive.
Tribes stressed the funding inequities within the EPA by
pointing out that Tribes have lost 10 years of core funding in
which to build an administrative and technical infrastructure to
address Superfund.
The need to increase or create tribal funding for core
environmental programs is clearly the message to our federal
trustee. Furthermore, the funding should go directly to the Tribes,
not to the various intermediary national organizations who say they
provide technical assistance to Tribes.
An analysis of environmental issues in Indian Country must
include the cultural and religious aspects of indigenous life on
Reservations. Environment, culture, religion and life are very much
inter-related in the tribal way of life. Indeed, they are often one
and the same.
Water, for example, is the lifeblood of the people. I recall
taking a draft tribal water code for public input to the five
villages on my Reservation when I was a tribal sociologist.
Protection of the water spirits was a major concern throughout the
Reservation. And the water spirits varied depending on the water
source being a river, lake, or spring. I reported back to the
attorneys and they laughed at my findings.
However, it was no laughing matter a few years later when a
elderly Cheyenne man held off the drilling team of the Atlantic
Richfield, ARCO, from crossing his water spring with his rifle.
"Today is a good day to die," he said as he held his own hunting
rifle before him.
I defended him in tribal court the next morning and I cried
with him when he told me how the water spirits sometimes came out
and danced at his spring. Indeed, there is a profound spiritual
dimension to our natural environment and without it, the war
would not be worth fighting.
Cut off the toe to save the body is the argument on the Northern
Cheyenne Tribal Council floor. Another coal contract is before the
Council and the coal company is promising to make each Cheyenne a
millionaire overnight. The annual tribal fight over the coal
begins, as is has for the past thirty years.
The younger Council members want a tribal referendum vote and
their argument is as follows: "The whole Reservation is underlain
with coal. Let us begin stripmining a small part of the Reservation
to get money. We need the whiteman's money to win this fight. We
are being surrounded by the stripmines and time is running out. We
will build our own high school for our children and give them a
life out of this poverty."
Today's fear, anger and urgency in Cheyenne country are very
similar to the war stories of yesterday.
For more information: Gail Small, Executive Director, Native
Action; PO Box 316; Lane Deer, MT 59043; (406) 477-6390.
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"When we walk upon Mother Earth, we always plant our feet carefully
because we know the faces of our future generations are looking
up at us from beneath the ground. We never forget them."
-Oren Lyons, Onondaga Nation
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milo@scicom.alphacdc.com Michele Lord Alpha Institute
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