Kimberly TallBear
Council of Energy Resource Tribes
1999 Broadway, Suite 2600
Denver, CO 80202
303-297-2378, fax:
303-296-5680
ABSTRACT
The paper examines the differing participation of two tribal governments (the Chemehuevi Indian Tribe in California and the Skull Valley Goshute Tribe in Utah) in radioactive waste management. The paper shows that tribes act within tribal-specific notions of environmental justice when making decisions to participate in the development of radioactive waste policies and programs.
Whether a government or industry would coerce siting of a radioactive waste facility on tribal lands or whether a state or environmental interest group would paternalistically suggest that tribes be excluded from nuclear energy and radioactive waste management, both constitute attacks on tribal sovereignty and preclude environmental justice for tribes. The paper argues that the achievement of environmental justice on reservations depends upon the ability of tribes to make policy and upon non-tribal governments, citizens, companies, and organizations to respect the legitimacy of tribal governments that retain the right to make policy decisions, even if those decisions include participation in radioactive waste storage and disposal research, debates and activities.
THE EXISTING ENVIRONMENTAL JUSTICE DIALOGUE AND TRIBES
Environmental justice combines the social justice and environmental protection movements. Environmental justice has been defined as the equitable distribution of environmental risks and benefits (and/or equal protection from environmental and health hazards) across racial, class and cultural groups. Environmental justice encompasses the concept of environmental equity, which holds that all populations should bear a fair proportion of environmental contamination and health risks. Environmental racism, as a term, is not interchangeable with environmental justice. Rather, environmental racism describes policies and practices, intentional or not, that place adisproportionate burden of pollution and health risks on a community based on their race (Bullard, 1993; Chavis, 1994).
Tribes are Portrayed as Corrupt or the Exploited Poor
The mainstream media such as Sierra Magazine and Race, Poverty, and the Environment and scholars such as Bullard report that tribes are the victims of environmental racism. Tribes, they report, are victims because they are blatantly targeted by the U.S. government, the nuclear power industry and commercial waste management companies for the development of radioactive waste storage and disposal facilities. Reservations are described as overwhelmingly poor and without adequate governmental infrastructure and political know-how to protect themselves. Tribes are described as exempt from local environmental regulations, thereby misleading the reader by inferring an absence of environmental regulation (Bullard, 1993; Kerr and Lee, 1993). Others have gone beyond portraying tribes as unsophisticated and exploited. Some of the literature focuses on criticizing tribal governments of widespread corruption, collaboration in inflicting environmental degradation upon their own people, and questions the legitimacy of tribal government decisions when those decisions do not adhere, line by line, to the priorities of environmentalists (Bullard, 1993; Hall, 1993; LaDuke, 1994).
Attacking Tribal Sovereignty
Whether tribes are portrayed as impoverished victims or as venally corrupt and opportunistic, the end result has been to attack the rights of tribes to exercise sovereignty as other nations and states do. Tribal governments are criticized for daring to determine how they will develop their lands and how they will regulate pollution within reservation boundaries. While tribal members--like citizens of other nations and states--debate the policies and actions of their governments, it is only tribal governments whose legitimacy is called into question if those decisions are unpopular. Tribal sovereignty is the lever that tribes have for achieving greater environmental justice. Insofar as some environmentalists undermine tribal sovereignty, they may perpetuate the victimization they deplore.
While some scholars and anti-tribal interests attack the sovereignty of tribal governments, well-meaning but often misinformed environmental justice and anti-nuclear activists ascribe to tribes the same language with which they describe the struggles of other "communities of color." Unfortunately, the issue of race is usually focused upon at the expense of discussions about protecting tribal sovereignty and the self-determination that results from exercising that sovereignty. Scholars, activists and local citizens often do not understand the significance of the unique sovereignty that tribal nations retained when they entered into treaties with the United States, Sometimes, they do not support the rights of tribes to exercise this inherent power although such opposition is not always openly stated.
Sovereignty is defined as the supreme power from which all specific political powers are derived. Sovereignty is inherent--meaning it comes from within a people or culture. Sovereignty was not given by the U.S. government to tribes. Tribes retained it. This principle was enunciated by Chief Justice Marshall in the 1830's in the case of Worcester v. Georgia. Indian tribes, he declared, "had always been considered as distinct, independent, political communities, retaining their original natural rights." (Kickingbird, 1977). Understanding tribal sovereignty is the key to understanding the power of tribal nations. Sovereignty--and the land title, jurisdictional authorities, and rights to determine citizenship--that come with such status, are significant factors in explaining why tribes have persisted as cohesive and culturally distinct communities. Upon the foundation of sovereignty, tribes have preserved their cultures against great odds and predictions that they would not survive as distinct peoples, but would assimilate entirely.
Consequently, the environmental struggles of tribes should also be examined in light of the principle of tribal sovereignty and with understanding that states and localities do not possess jurisdiction over tribal lands despite their many attempts to assert such jurisdiction. As tribal cultures have survived largely because tribes have been afforded the protection of sovereignty, tribal environmental jurisdiction is key to preserving and/or reclaiming the environmental integrity of reservation lands.
While some of the leading thinkers and actors in the environmental justice and broader environmental movements do not fully comprehend or support the sovereign rights of tribes to make development and environmental policy decisions on reservation lands, it is ultimately the responsibility of elected tribal leaders and tribal members to determine how tribes are affected by environmental racism.
The current dialogue portrays tribes as vulnerable and disorganized "communities of color" and emphasizes their exploitation by federal and private waste management and energy interests. This portrayal does not reflect the complexity or range of environmental problems which tribes confront. The current environmental justice dialogue does not focus sufficient attention on the overwhelming problem of state and local governments and individual citizens that continually challenge and ignore tribal jurisdiction. Consequently, the existing principles of environmental justice determined by those same scholars and activists--largely without tribal government participation--do not reveal the primary underlying causes of environmental injustice in Indian Country. They also do not point to practical resolution of the crucial environmental protection needs of tribes.
EMERGING TRIBAL REQUIREMENTS FOR ENVIRONMENTAL JUSTICE
In the absence of comprehensive examinations of environmental injustice on tribal lands and in an effort to elevate the tribal voice within the environmental justice movement, the Council of Energy Resource Tribes used a facilitated process to bring together tribal leaders, environmental professionals, and tribal community members. In 1996 and early 1997 several workshops were held to elicit tribal identification of issues and projects, obstacles to communication and information sharing, and institutional and governmental processes, that have environmental justice implications for tribes. The workshops resulted in four Tribal Requirements for Environmental Justice which will help provide tribal direction to the national environmental justice dialogue. The CERT-facilitated workshops constitute the first broad-based attempt by tribal governments to define for themselves what environmental justice means in Indian Country (Council of Energy Resource Tribes, 1996).
CERT's environmental justice work with tribes in 1995 and 1996 has simply confirmed and documented what tribal environmental protection professionals and tribal leaders have already known: The primary threats to environmental justice in Indian Country are consistent attacks on tribal government sovereignty and challenges to tribal regulatory authority by polluters that include the federal, state and local governments, individual citizens, and companies. Explicit recognition of this phenomena is missing from the 17 environmental justice principles which were crafted at the First People of Color Summit and which are central to the existing environmental justice debate (Hofrichter, 1993).
During the CERT-facilitated discussions, tribal participants actively discussed current environmental protection challenges for their respective tribes and recommended ways for tribes, other governments, companies, institutions, organizations and individuals to promote environmental justice in Indian Country. Out of these recommendations a pattern was clearly present; four main requirements for environmental justice emerged. These requirements reflect the perceptions by tribes of the most common assaults on reservation environments and tribal authorities. They also point to overwhelming resource needs--as prioritized by tribal professionals, government leaders and community members--that tribal environmental programs require to adequately protect tribal lands and resources.
Environmental Justice Requirements Indicated by Tribes
How tribes apply these Requirements for Environmental Justice in radioactive waste policy development and related decision-making, is demonstrated in the following two cases.
TRIBAL PARTICIPATION IN RADIOACTIVE WASTE MANAGEMENT
The Chemehuevi Indian Tribe and Ward Valley
The State of California has proposed construction of a low-level radioactive waste management facility in Ward Valley in the Mojave Desert. The Chemehuevi Indian Tribe has opposed the siting of the facility, objecting especially to the facility design. The Chemehuevi and several other California tribes have challenged the State of California on siting the facility at Ward Valley which is near the Chemehuevi reservation. The concerned tribes express fear that potential facility leaks could endanger water quality in the Colorado River. The river is a source of drinking water for five reservations along the Colorado-Arizona border, for the City of Los Angeles, and for other cities. In addition, the company which California chose to operate the facility has a not-so-stellar record in operating other low-level waste facilities. Two of U.S. Ecology's four facilities were shut down for violations of EPA regulations and a third has had employee safety violations (Schwab, 1994).
Despite opposing the site, and as consistent with the "Environmental Justice Requirements Indicated by Tribes," the Chemehuevi have asserted their rights and assumed responsibility "as the first Americans and Californians to ensure that these and other wastes are transported, stored, and
*Accordingly, do DOD, DOE and other federal departments and agencies that have caused contamination on or near tribal lands have a responsibility to provide sufficient funding, technical assistance, and technology transfer to tribes to enable tribally-directed or tribally-informed cleanup of tribal lands and resources?
disposed of in a manner that will ensure the health and safety of this and future generations and that will protect the land, water, air, and natural resources" (Leivas and Tano, 1995). While tribes played no part in the decision to build atomic weapons and did not participate in the decision to establish and subsidize the nuclear energy industry, the tribe acknowledges tribal interests in nuclear power. These include use of electricity powered in part by nuclear reactors and benefiting from medical diagnoses and treatments that generate low-level radioactive waste. The tribe also acknowledges both the financial benefits and disastrous health effects for certain tribes of uranium mining. By recognizing tribal involvement in the nuclear era, the Chemehuevi have claimed their right and responsibility to continue participating.
The Chemehuevi Low-Level Radioactive Waste Management Strategy
Chemehuevi Tribal leaders and staff have studied information on low-level radioactive waste from a myriad of sources, increased their knowledge on the subject, then the tribe's interests in low-level radioactive waste management. The tribe has articulated interests and opinions in papers and in forums. Tribal leaders have also outlined a tribal low-level radioactive waste management strategy (Leivas and Tano, 1995). The strategy consists of seven components:
The "Environmental Justice Requirements Indicated by Tribes" are evident throughout the Chemehuevi low-level radioactive waste management strategy.
Tribal Sovereignty
Protection of tribal sovereignty and tribal jurisdictional authorities, as with all tribes, are the top priorities for the Chemehuevi as they participate in radioactive waste discussions locally and nationally. The tribe has stated their intent to defend tribal authorities against those who would attempt to restrict tribal decision-making rights, particularly as related to radioactive waste.
Equity
Equity, as defined in the Chemehuevi strategy, reaffirms tribal sovereignty as it defines equity to mean "no government--Indian or non-Indian--should be forced to bear an inequitable burden in managing the nation's radioactive waste." Equity, in the Chemehuevi case, reflects Tribal Requirement IV as it emphasizes balancing the economic benefits of nuclear technology with the burdens of storing and disposing of radioactive waste. For example, waste should be packaged and inspected, stored and disposed as close as is practical to waste generators who enjoy the economic and health benefits of using the technology."
Intergenerational Responsibility
Intergenerational responsibility, as a component of the strategy, calls for living generations to protect the environment for future generations by participating in developing new and safer waste management technologies and to stop generating wastes. This component of the strategy should also result in economic and research opportunities that coincide with tribal values and environmental priorities that will prepare current and future generations to participate as technical experts and policy-makers. These tribal experts will staff tribal, state, federal, and industry programs and can ensure that the interests of tribes are protected. This component of the Chemehuevi strategy reflects Tribal Requirements II and IV which advocate building tribal expertise.
Waste Reduction
Waste reduction, the third component of the Chemehuevi strategy, emphasizes that nuclear power should be phased out, thus reducing volumes of radioactive waste. The strategy then calls for tribal colleges, students, and engineers to undertake research in waste reduction technologies. Such research reflects Tribal Requirement IV which advocates expanding economic and intellectual opportunities for tribes.
Federal Trust Responsibility to Tribes
Finally, the strategy calls for the federal government (particularly Nuclear Regulatory Commission) to uphold its responsibility to consult with tribes on all waste management activities on a government-to-government basis. This relationship calls for tribal governments and the federal government to relate as two governments rather than by the arcane "ward-trustee" relationship. This component of the Chemehuevi strategy again reaffirms Tribal Requirement I that calls for respect of tribal jurisdictional authorities.
According to the components of the Chemehuevi strategy, tribal leadership have recommended a specific tribal-industry-government waste management agenda which includes activities that directly reflect the tribal environmental justice requirements. The strategy recommends:
Unfortunately, despite the tribe's participation in an informed and productive manner, environmental activists have sharply criticized the Chemehuevi Tribe for conducting a workshop to inform tribal and community decision-makers on the crucial low-level radioactive waste issues. Such criticism is consistent with the resistance common within environmental justice circles, to tribal assertion of sovereignty, especially when it includes actively seeking solutions to the radioactive waste crisis.
Skull Valley Goshute Tribe and the MRS
The Skull Valley Goshutes are a small tribe of just over 100 members who occupy an 18,000 acre reservation in Tooele County, Utah. In the aftermath of defense budget cutbacks, the tribe--which derived most of its employment from the defense industry--is faced with economic uncertainty. Among other employment possibilities, the tribe has undertaken a study of DOE's Monitored Retrievable Storage (MRS) program. The tribe began the study in the early 1990s by accepting a $100,000 DOE grant to study the feasibility of hosting a MRS facility. The facility would temporarily store spent nuclear fuel rods until a permanent facility such as Yucca Mountain is ready to accept waste. The tribe completed the first phase of the study then entered subsequent phases. The tribe estimates that the MRS will create 2,500 construction jobs, many fewer permanent jobs, and will provide between $14 million and $22 million a year in revenue for the tribe (Skull Valley Goshute Tribe Executive Office).
With several years time and the money to do so, the tribe has learned about nuclear power, spent nuclear fuel, and current options and methods for storing and "disposing" of spent nuclear fuel--both domestically and abroad. Tribal representatives have vehemently voiced their belief that it is their responsibility and right to make informed decisions about nuclear power and nuclear waste and that the tribe should choose for themselves whether or not to host a MRS facility:
A temporary storage facility is not a "nuclear waste dump. . ." These casks which cost over $500,000 per cask are built to last hundreds of years and safely contain all of the radiation. The decision to go into Phase IIB [of the DOE study] is not a decision to build an unsafe facility. . .From the interim spent-fuel storage facilities we toured in Japan, France, Britain, Sweden and on-site storage facilities in this country, we are clearly convinced that the MRS can be a safe industrial project. However, like all decisions, this is a choice. . .we will further study the site specific environmental effects and best designs for this project. Under the 1982 Nuclear Waste Policy Act and the 1987 Amendments, we reserve the right to cancel this project at any time if we deem it in the best interest of the tribe.
Skull Valley Goshute Tribe Executive Office (1995)
The Skull Valley Goshute, according to Tribal Environmental Justice Requirement I, rely on the foundation of tribal sovereignty to declare their right to participate in studying the risks and benefits of hosting a MRS facility on their reservation.
Interestingly, while the State of Utah recognizes its limited authority to "restrict activities on a sovereign tribe's reservation" (Salt Lake Tribune, December 1996), environmental organizations such as the National Environmental Coalition of Native Americans (NECONA) describe tribes as "using [their] sovereignty to bypass state environmental laws" (Thorpe, March 1995). NECONA obviously either does not grasp or does not support the tenet of tribal sovereignty. Tribal sovereignty cannot be used to "bypass" state environmental laws as state environmental laws do not govern tribal lands. Rather, if tribes choose to set environmental laws, those tribal laws apply on tribal lands and tribes are then responsible for enforcing those laws. In the absence of tribal law, federal law applies. Incidentally, despite insinuations that tribal environmental regulations are lax, they must be at least as stringent as federal regulations--and like state regulations--are often more so. NECONA's argument is akin to berating the U.S. government for asserting its own jurisdiction rather than applying Canadian law within U.S. boundaries.
The Skull Valley Goshute--in seeking DOE funding to research the risks, benefits, and options associated with the MRS facility--have acted according to Tribal Environmental Justice Requirement II. This requirement suggests that federal agencies responsible for causing contamination are also responsible for providing tribes the financial resources and intellectual capacity-building to participate as informed and technically competent partners in finding solutions to problems, even those as difficult as managing radioactive waste.
The Skull Valley Goshute have consistently stated their intent to explore the MRS as an economic development option. This intent falls within Tribal Environmental Justice Requirement IV. While many will understandably not agree with the MRS as an appropriate economic development endeavor, the tribe has the right to evaluate this option and to decide if the option conflicts with or falls within the tribe's value system that dictates how and if it should participate in storing radioactive waste.
CONCLUSION
It is the realm of tribal governments and their members to determine which actions and decisions (that have been perpetuated by non-tribal people, governments, citizens and corporate entities) represent environmental racism. It is not the place of non-tribal politicians, activists and scholars, who do not clearly understand tribal sovereignty and jurisdiction, to tell tribes how they are exploited, then also question the right of tribal governments to play a part in radioactive waste management. The existence of radioactive waste is a difficult reality that we, as a nation and a species, have created. Tribal governments did not make the decision to build the first atomic bomb and to pursue the development of nuclear power. However, tribes have been integrally involved throughout the nuclear era, primarily in the mining and milling of uranium which has been both profitable and devastating to tribal lands and to the health of Indian people.
The Council of Energy Resource Tribes, under the guidance of our member tribes, has promulgated a policy calling for the phase-out of nuclear power in the U.S. However, our tribal membership has also asserted their right to be involved in the development of radioactive waste management policies and programs at the tribal, state, national and international levels. Tribal governments reject the patronizing implication that tribes should blindly accept the positions, policies and decisions of industry, of state and federal governments, and of environmental organizations--however well-intentioned (Tano and Vandermoer, 1992). As sovereign nations, tribes have the right to define their roles in the management of radioactive waste according to their unique values, traditional lifestyles, and long-term economic and community development visions. Whether a government or industry would coerce siting of a radioactive waste facility on tribal lands or whether a state or environmental interest group would paternalistically suggest that tribes be excluded from nuclear energy and radioactive waste management, both constitute attacks on tribal sovereignty and fall within tribal notions of environmental injustice.
The ability of tribal governments to exercise their sovereign powers to determine social, economic, and scientific policy is as fundamental to being Indian nations as is the exercise of cultural and religious freedom. A definition of environmental justice which applies to tribes must go beyond the standard definition which calls for "equal protection from environmental and health hazards across racial, class and cultural groups." A definition of environmental justice, which is useful for tribes, must be written by tribes themselves and must be rooted in the foundation of tribal sovereignty and the consequent rights of tribes to determine policy on tribal lands. The achievement of environmental justice on reservations ultimately depends upon the ability of tribes to make policy and upon non-tribal governments, citizens, companies and organizations to respect the legitimacy of tribal decisions, even if those decisions include participation in radioactive waste storage and disposal activities and policy-making.
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