By Alan Tauber

Since the founding of the United States, federal Indian law, applicable equally to all native Americans residing within the boundaries of the United States, has been a jumbled patchwork of contradictory decisions and pieces of legislation, oscillating between one of two contradictory policies: termination and self-determination. The United States Constitution acknowledges that Native American nations are sovereign states that are to be treated like foreign nations in Article I Section 8. This clause gives Congress the sole power to "regulate commerce with foreign Nations and among the several States and with the Indian Tribes." Additionally, President George Washington promised lands to such tribes as the Mohawk for as long as the rivers run, as long as the mountains stand. These promises have since been broken.

Based on a series of Supreme Court decisions, Congress has been granted sole and absolute plenary power over Native Americans and their affairs. Furthermore, these same decisions have granted control over Native American land to Congress or its delegates, such as the BIA, under the Trust Doctrine. Under this doctrine, the US government has sole command of Indian lands, seen for legal purposes as federal land. The only restrictions on this control is the Fifth Amendment’s "Takings clause" which requires just compensation for lands taken by the federal government for federal use, and the fiduciary responsibility that the Supreme Court has placed on the federal government. In reality, the federal government has no obligation to consult Indians about the use of their land, provided they are justly compensated or that the land is used for a purpose that benefits the tribe. With the only check on federal power being the United States Supreme Court, there is little hope that the situation will change in any significant way.

While some state laws do apply to Indian nations, federal laws supercede these and any tribal laws in place. The states and the Native Americans are constantly battling over the exact distribution of power. In recent years, the courts and federal government agencies have been leaning towards self-determination, granting more control to individual tribes, while restricting state power over Native American lands.

Federal Indian law could be described as "at a crossroads." While the federal government has allowed tribes more control over their affairs, government control is still supreme. The Bureau of Indian Affairs, which reports to the Department of the Interior and the Congress, must approve all land use decisions made by any tribe. Recently though, the courts have begun leaning towards limited tribal sovereignty as evidenced in the Brendale decision. This sovereignty that has been eroded since the establishment of the US government. In short, after 200 years of federal rule, tribes in the United States are relegated to the role of domestic dependant nations.

There is a long and ongoing battle in the federal courts over who has control of tribal lands. Through a complicated chain of federal legislation and Supreme Court decisions, the issue of sovereignty has received attention. A full explanation of the sovereignty issue is critical to understand the aforementioned dependant relation.

The key factor to resolve when dealing with the sovereignty issue is the federal government’s plenary power and trust responsibility versus a Native American nation’s inherent sovereignty. Plenary power is "full; complete; absolute" power that Congress exercises over Indian affairs. Felix Cohen who wrote the Handbook of Federal Indian Law, an overview of national Indian law discusses trust responsibility that that lies with the federal government:

The Supreme Court upheld this interpretation in the 1978 case of US v. Wheeler reaffirming that tribal sovereignty is not based on any delegation of power from the Congress, but rather is retained from the tribe’s original power. Another Supreme Court case, Worcester v. Georgia concluded "a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection." This has been the position of the US Government since the 1830s.

The U.S. executive branch has reaffirmed the policy of tribal self-government as well in recent years. President Reagan issued an Indian Policy on January 23, 1983 reaffirming this belief and ordering that Indian tribes be dealt with on a "government-to-government" level. The EPA followed suit on November 8, 1984, becoming the first federal agency to do so. Since that time, other federal agencies, such as the BIA, have taken steps to voluntarily restrain their power and to promote autonomy within tribes.

The basis for Congress’s plenary power and trust responsibility which counters this inherent sovereignty, is to be found in three Supreme Court cases as well as the US Constitution. The foundation for Congress’s plenary power is the 1823 decision in Johnson v. McIntosh, in which the court adopted a "doctrine of discovery." The belief was that the United States inherited the European legal principle that the discovery of a land made that land the property of the discovering nation. Indian peoples were allowed the right of occupancy under the McIntosh ruling, but "their rights to complete sovereignty, as independent nations, was necessarily diminished…" Thus Congress had the ultimate authority over all lands in federal possession. This plenary power is further enshrined in Article I, Section 8 of the United States Constitution, giving Congress the sole right to control commerce with the Indians. This is why the BIA and other federal agencies must approve all action taken on federal lands.

The trust responsibility finds its roots in the landmark case of Cherokee Nation v. Georgia. It was in this decision that Chief Justice Marshall first described the responsibility as that of "a ward to his guardian." The federal government was seen to hold all Native lands in trust, to take care of them for the Indians. In that sense, there is a fiduciary relationship between the federal government and the tribes. Ironically, the trust relationship, along with the Fifth Amendment’s "Takings Clause," is the only check that tribes have on federal power. Finally, a District Court case, Griffin v. US, granted Congress exclusive power over Native lands.

Despite all this, the EPA has acknowledged a Native American nation’s rights to establish environmental regulations within the reservation. This determination has been supported by the Supreme Court in Montana v. US, in which the Court decided that tribes had the right to regulate fee lands within the reservation. This was later challenged by another Supreme Court case, Brendale v. Confederated Tribes & Bands of Yakima. In this case the Court held that if the tribe did not control a majority of the land in an area, then they did not have the right to impose environmental regulations on non-Indians. This decision failed to garner a majority vote, instead splitting the Court three ways. The EPA has viewed this as meaning that Brendale is not binding and they have instead relied on Montana.

This is the legal backdrop that all parties must deal with when determining whether or not to locate a waste facility on Native American lands. It is a confusing patchwork of contradictory policies that stretch out over a century and a half.

Two influential case studies look at how two different Native American nations, the Mescalero Apache and the Campo Indian Band, came to the decision to build waste facilities on their land. While each nation was considering housing different kinds of waste facilities on their land, the Mescalero wanted a Monitored Retrievable Storage (MRS) facility for storing nuclear waste and the Campo Band built a solid waste facility; the two methods used to make this decision are very different and provide important lessons about the need for full tribal support. They also provide important lessons about the power of public opposition, lessons that should be examined by any other tribe considering such a move.

Without much success the Mescalero Apache have been working for several years to house a MRS on their lands in New Mexico. Wendell Chino, the President of the Mescalero Apache, has been President of the tribe for thirty years. During his term of office he had been a driving force behind the Native American Sovereignty movement. Chino’s driving goal has been economic independence for the tribe, and despite hosting a casino and other industry on reservation lands, over one third of the tribal members were unemployed, with half living below the poverty line.

It is for these reasons that Wendell Chino and the Mescalero Tribal Council first approached the Office of the United States Nuclear Waste Negotiator (NWN) about hosting a MRS facility. The tribal council was quite excited to receive a two pound package from the NWN in early October 1991. On October 11, 1991 the Mescalero Apache Tribal Council, without verifying the wishes of the majority of the tribe, officially applied for a Phase I grant to study the feasibility of hosting the MRS. The council received $100,000 six days later. To facilitate the project, the Mescalero set up an experienced task force within the tribe whose responsibility it was to oversee the project. Several contracted scientists and other individuals from the nuclear industry acted as consultants.

With the help of these consultants the tribal council applied for a Phase II-A grant in March of 1992; they received the additional $200,000 a month later. On August 4, 1993, the Mescalero leadership applied for the final stage of funding. At this point, however, local resistance to the project had grown, and due to the political attention, this grant was denied. New Mexico Senator Jeff Binghaman had used a "rider" to cut the funding for NWN and managed to put the project on indefinite hold. In the meantime, opposition to the project had time to grow, ensuring that funding would not be renewed.

In response, and citing native sovereignty, Chino and the tribal council went to Northern States Power (NSP), a nuclear power company from Minnesota, to talk about the possibility of building a private MRS facility. An official agreement was reached on February 3, 1994 and for the next few months the partners went around the nation courting other utilities companies who needed a place to store spent nuclear fuel rods. On March 10, 1994, an agreement between the leaders of the Mescalero Apache Tribe and thirty-five private utilities was signed. In it, the utilities agreed to provide funds for "initial studies of cost and feasibility."

It was with this agreement that controversy started. In December, 1994 NSP along with thirty other utilities signed a "non-binding letter of intent" to store waste on Mescalero lands. The controversy started when Chino decided to put the agreement up to a tribal vote. Although Chino did not believe that tribal approval was necessary, he felt confident that a positive outcome would bolster his bargaining position. This ultimately did not occur. The powerful leader "suffered his most significant defeat" when the tribe voted 490 to 362 to reject the project.

Tribal leaders, while shocked, claimed that they would abide by the vote, because it was the "will of the people." It was at this point that Fred Kaydahzinne, the Housing Director appointed by Chino, a "self described, grass roots tribal activist," circulated a petition asking for another referendum. Many members of the tribe, specifically traditional female leaders, claimed that they were threatened and coerced during the campaign for a re-vote, in order to quiet their opposition. As a result, 700 signatures were collected and the new vote was scheduled. In that vote, the project was approved overwhelmingly by a vote of 593 to 372.

Since the re-vote, the tribe has lost the support of many of the original thirty-five utilities who signed the "non-binding letter of intent." Some reports indicate that only seventeen utilities are still on board. Additionally, Wendell Chino faced a challenge from his former Vice-President, Fred Peso, in the last tribal election. While Peso once supported the project, his backers were a traditional group called the "Apache Stronghold" that opposes the MRS facility. While this opposition had been vocal since the time of the vote, the election cycle for President was when they had the opportunity to wield the most power, by attempting to oust Chino. The key obstacle now was applying for a license from the Nuclear Regulatory Commission (NRC) which they were scheduled to apply for in early 1996.

Another blow befell the MRS facility on April 16, 1996, when talks between the Mescalero Apache Tribal Council and the NSP-led coalition of utilities were "indefinitely suspended." Disagreements over location, compensation and legal liability doomed the agreement. Yet, President Chino was not dissuaded. Two days after the "indefinite suspension" Chino released a statement that the tribe will "continue with plans for the development and construction of a temporary facility." As of this day, no further advances have been made.

In this case, money and jobs were the motivating factors that led the Mescalero Apache to consider hosting a nuclear waste facility on their land. Wendell Chino might argue that sovereignty was involved, but it was just a way to keep the state and federal government from interfering. In this case, it appears that the IRA-created tribal council was acting in its own best interest rather than that of the tribe’s. The re-vote on the referendum has at least the appearance of impropriety, and if the reports of coercion and threats are true, then the whole issue is in doubt. The key lessons to be drawn here are clear. Any tribe attempting to host a controversial facility, such as a MRS facility, needs to garner tribal support before going ahead with any serious moves to construct it. Tribal support is the key to success because there will undoubtedly be opposition from residents of the state that contains the reservation as well as local and national environmental groups. A united tribe is necessary to overcome this opposition and make the facility a reality.

Different lessons can be learned by examining another case study, one in which the tribal council acted in a much different way. For the Campo Band the decision to host a solid waste facility on their land was much more widely supported and well thought out. They provide an example of when the environmental community can overstep its bounds and why they might come to understand that not all waste facilities on Native lands are unwanted, and that when a whole tribe does decide to host such a facility that decision is theirs to make.

The Campo Band’s reservation is located in southeastern San Diego County, California. The Band is economically troubled, with seventy nine percent unemployment, low education and a poor housing situation. The Band has looked for economic prospects, but the outlook was bleak. The remote location made manufacturing an unattractive prospect. There are three major gaming centers between the reservation and major population centers. Thus, eliminating the prospect of capital investment to support such an endeavor.

In 1987, the County of San Diego was facing a dilemma. The capacity at the county’s landfills was rapidly being filled. Studies showed that landfill capacity would be depleted by 2004. In order to solve the coming solid waste crisis, the County of San Diego started searching for sites to build a new landfill. The Campo Band reservation was one of the preliminary sites identified by the search.

At first, the majority of the Band was against the idea of a siting a landfill on reservation land, but, needing economic support, the tribal leaders decided to look more carefully at the matter and authorized a consultant to "conduct a feasibility study for a tribal solid waste project." The study produced favorable results, confirming the County’s projections indicating an increased demand for landfill capacity. Concurrently, the Band, researching viable options for economic development, learned that the solid waste industry was a "good match for a tribal community with high unemployment, low educational levels, and no investment capital." While concerned about possible negative effects on the environment, the tribal leadership became convinced that the landfill could be operated with the same level of environmental impact as another industrial project, thanks to current technology and with proper regulatory controls.

The tribal leadership decided very early on that the project would not succeed "without the enthusiastic support of the tribal community," due to the highly controversial nature of these types of projects. To this end, the tribal leaders have been very open with members of the Campo Band. The Campo Band has set up a General Council composed of all adult members of the Band, and all legislative and proprietary powers are vested in this council. This has been very beneficial for the members of the tribe, who have learned a great deal about the process of tribal government, and who all have a good understanding of the project, its status, and its pros and cons. Over a four-year period during the construction of the facility, the General Council voted on dozens of matters concerning the project, such as development of tribal environmental regulations, plausible locations for the site and setting up a tribal corporation. The project always received the overwhelming support of the community.

With a thorough understanding of all the issues -- both environmental and economic -- garnered from studying the information needed to make the previously mentioned decisions, the Band decided to proceed with the project, which consisted of a landfill for municipal solid waste, a recycling facility, and a composting facility. The Band also decided by a majority vote of the General Council that it would not accept any hazardous waste for any reason or under any circumstances, due to the nature of that waste. Next, the Band turned to developing the necessary infrastructure for the project, particularly the environmental regulations.

The Band used several strategies in developing its environmental codes, in order to deal with non-Indian public and state opposition to the project. The primary local opposition came from a group called Backcountry Against Dumps (BAD). Organized by Donna Tilsdale, a rancher with land adjacent to the proposed site of the landfill, BAD has worked to prevent the project from being approved. She and her neighbors feared that the landfill will hurt their land and water sources. The main opposition in the California legislature is Steve Peace, a young Democrat from San Diego County. He attempted to pass a law that would require the tribe to obtain a state permit before waste companies could dump on reservation land. By arguing from a position of tribal sovereignty the Campo Band forced a compromise between Peace and themselves, centered on a voluntary agreement between the Campos and the State of California. Two years later, only BAD showed any kind of disappointment at the compromise.

The Band wished to ensure that their environmental regulations would preempt state and local environmental laws from applying to any part of the project. This required the Band to create its own "comprehensive regulatory system around the federal Indian leasing laws and the federal environmental laws." By preempting the state laws, the tribe could streamline the permitting process, creating a "competitive advantage" to siting a facility on reservation land.

In developing its environmental program, the Band also created a regulatory agency to enforce tribal environmental regulations. The Campo Environmental Protection Agency (CEPA) is charged with creating a "solid waste management plan for the reservation, including codes and detailed regulations." CEPA is also in charge of enforcing and administering tribal environmental codes. To ward off attacks from elected officials of the state, like Peace, who were opposed to the project, the codes CEPA suggested complied with all applicable federal laws, and were also in line with the solid waste laws of the state.

By 1988, the Band had a development team composed of legal council, a financial advisor and consultants from the solid waste industry. The development teams role was to provide the Band with proper information on which to base important decisions. It also helped to structure the project to benefit the tribe environmentally, socially, and economically. The Band’s budget jumped from $15,000 to $700,000 over a six-year period. Individual members of the Band have also benefited as tribal unemployment rates have dropped to just 30 percent. The Band decided that the developer would pay for the cost of the development team. This acted as the first screening for potential developers. Anyone who refused to pay the costs "was shown the door."

The next step the Band took was to set up a tribal development corporation. Called Muht-Hei, Inc. (MHI) it is "wholly owned by the Band, and its board of directors consists entirely of tribal members." Once the Band had determined that the project was feasible and had the necessary infrastructure in place, it set out to find the best developer for the project. MHI, with the help of the development team, prepared a proposal that explained the economic terms for the operation of the facility to potential developers. The proposal outlined specific terms that the developer would have to meet, including compliance with tribal environmental regulations, preferential hiring and training of Band members, and further provisions regarding rent, royalties, bonuses, insurance and indemnification. This is what allowed the Band to proceed despite its miniscule budget, and it is also responsible for the phenomenal increase in employment levels. After an eighteen-month search, MHI closed a deal with Mid-American Waste Systems, Inc., a company that operates twenty landfills in a dozen states, and Campo Projects Corp., a company that has successfully operated recycling facilities for twenty years.

In order to facilitate the process, the Band decided to lease reservation land set aside for industrial development to MHI, the tribal corporation, who would then sublease the land, part to Mid American and part to Campo Projects Corp. Mid-American would build and maintain the solid waste facility while Campo Projects Corp. would develop the recycling facility.

The development team’s financial consultant looked at the value of land used for landfills across the country and came up with a comparable asking price for its land. The end result was a "lease with the developers [that] will require annual payments of seven figures to the Band and MHI." Another key point was a "strict Indian preference requirement in hiring and training decisions" because employment was a primary goal for the Band. The eventual goal is for tribal members to not only do manual labor, but also the management, engineering and marketing for the project.

The benefits to the tribe from this project will be many and varied. The Band is fully expecting that the project will mean total employment for members and economic self-sufficiency for itself. The project will also provide the Band with investment capital for future projects. The Band plans to reinvest half of all revenues into MHI for future development projects while the other half will be used to "provide badly needed services on the reservation." Plans include supplemental income for tribal members, new housing for members living in sub-standard housing, a Tribal Housing Authority and scholarships for tribal members. While these dreams have not been entirely realized, economic self-sufficiency is now a reality and unemployment is at an all time low.

An irony that is involved in this case is that Not-In-My-Back-Yard (NIMBY) groups and CAVE (Citizens Against Virtually Everything) groups have united with two waste management and disposal firms to oppose siting of waste facilities on Indian lands in California. These are just a few of the groups who rallied behind Steve Peace’s bill and helped to ramrod it through, forcing the compromise. One thing to consider: whenever one sees the environmental groups aligned with waste disposal companies one is forced to wonder whose concern is pushing these protests, the environmental groups or the waste companies who see their profits disappearing.

While NIMBY, CAVE and other environmental groups have been very helpful in combating cases of environmental racism in minority communities, all these groups should consider the situation before charging in. While there are genuine instances of environmental racism where these groups have been instrumental in protecting the rights of oppressed minorities, there are other cases where their involvement has hurt, not helped, the very groups they are trying to protect.

When it comes to the siting of waste facilities on tribal lands, one cannot jump to conclusions. While it may be true that IRA Tribal Councils are tools of the BIA and may be acting in their own interests, rather than those of the tribal members they claim to support, that is not always the case. When a tribe decides to go ahead with a development project with the full support of the tribe, it is not up to outside environmental groups to step in and try to "protect" them from the waste disposal companies. Such an attitude can not only hurt a tribe’s prospects for better employment and economic standing, but it also implies that Native Americans do not have the ability to take care of themselves; that somehow they are too gullible to watch out for their own interests, or that they were "bamboozled" by a waste company, tricked into accepting waste against their will. That is often not the case. Until NIMBY and CAVE groups, along with other environmentalists understand that the decision to host a waste facility on Native lands is often a deliberate, well informed, and fully supported one, they will be guilty of "environmentalist" racism, a racism that is just as damaging and dangerous as that which is written about by Robert Bullard.