Ahistorical Indians and reservation resources.

• Author: Rosser, Ezra

1. INTRODUCTION II. OPPRESSION AND EXPLOITATION A. Black Mesa Coal B. Oil and the Formation of the Navajo Nation Council C. Hopi Resistance D. Navajo Experience III. ROMANTICISM AND TRIBAL CHOICE A. Environmental Justice B. Contracts of Adhesion and Tribal Lands 1. San Francisco Peaks 2. Livestock Reduction IV. ACCEPTANCE AND DEVELOPMENT A. Desert Rock B. Possible Limits on Tribes 1. Federal (Administrative) Primacy 2. Indian Trust Doctrine 3. Cooperative Regulation 4. Tribal Determination and international Sovereignty V. ENVIRONMENTALISTS AND TRIBES A. Role of Environmental Organizations 1. A "Rights" Approach to Indigenous Sovereignty 2. Tribal Acceptance and Responsibility B. The Big Picture and Desert Rock VI. CONCLUSION I. INTRODUCTION

   Environmental degradation occurring on Indian reservations cannot be simply written off as yet another example of Indians getting screwed. (1) Instead, some tribes have begun, through their sovereign governments, deliberately seeking out the exploitation of their land and natural resources. (2) By choosing to prioritize economic development over the environment, Indian nations are challenging the instinctive "love" that progressives have for all things Indian. (3) Forced to choose between attacking the decisions of Indian nations on the one hand and turning a blind eye to harmful environmental policies on the other, progressives are faced with a classic apples-and-oranges dilemma. For their part, Indian governments pursuing economic development through environmental destruction have to grapple not only with non-Indian opponents--a familiar role for tribal governments--but also with tribal members less willing to make such a trade-off or adversely impacted by particular proposed projects.

   Things were a lot simpler when Indians could easily and rightly be identified as the good guys and whites as the bad guys on environmental issues. (4) It is still the case, I believe, that such a mental shortcut is largely justified on most issues, from poverty to land rights to recognition of sovereignty, but it is becoming more complicated with regard to the environment. To explain why that is so, it is worth thinking about the broad trends that have defined the relationship between environmental destruction and Indian nations. For much of American history, the relationship was an oppressive one. Whites--whether in the form of the U.S. government, companies, or as individuals--simply took natural resources from Indian tribes or, by subordinating Indian agency, simultaneously exploited both Indian land and tribal members. (5) Later, recognition that tribes should at least formally play a role in approving natural resource use and extraction changed the relationship from oppressive to inequitable. Tribes were compensated for their environmental goods, but Indians received less and lost more than they should have. (6) Bad faith in the form of the failure of the United States to live up to its trust obligations, or a mere pro forma role for tribal leaders in decisions with an environmental impact, led to inequitable compensation for Indian tribes. (7) The relationship between tribes and environmental destruction is now entering the modern period, one in which the terms of such destruction are tribally accepted even if the relationship is not entirely tribally defined. Besides challenging romantic notions of Indians as the first environmentalists, tribal activities that harm the environment undermine the position of some Indian advocates that Indian policies should not be subject to critique or limitation because of the inherent sovereignty of Indian nations.

   This Article makes two principal contributions. First, it establishes that the Navajo Nation freely chose to pursue an environmentally destructive form of economic development. Prior mineral resource-based development may have been formally approved by the Navajo Nation Council, but the agreements did not truly belong to the tribal government. Extensive research into the nature and royalty rates of the extraction agreements made up until the Navajo Nation's coal-fired power plant proposal shows the heavy influence of the federal government and mining interests. Prior scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the Article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

   With environmental awareness on the rise and non-Indian governments increasingly voicing concern about various forms of pollution, (8) resolving the apples-and-oranges, incomparable goods problem is becoming an imperative for tribes and environmentalists alike. Instead of disagreement with regard to prioritizing sovereignty or the environment giving way to confrontation and litigation, it is imperative that Indian advocates and environmentalists accept two core principles. First, Indian nations have the right to deviate from non-Indian organizations and governments when it comes to environmental decisions. Simply identifying a group of people, tribal members or not, harmed by a tribe's choices should not be enough to halt projects opposed by environmentalists. Second, the relational aspects of sovereignty limit what Indian nations can and should be able to do as-far as environmental destruction that impacts non-Indians. Thinking about tribes as nations under international human rights law arguably provides the best way of recognizing the appropriate bounds on sovereignty when it comes to environmental destruction. While strong environmentalists will reject the first principle and Indian law advocates will be troubled by the second, the two ate needed in order to prevent paralysis or backsliding on both fronts. Importantly, a human rights approach is an appropriate guide for environmental organizations and for tribes, regardless of whether the legal structure of environmental permitting remains federally defined.

   Inspired by a reporter's question of whether it was good that the Navajo Nation is now developing its own coal-fired power plant, this Article explores the evolving relationship between environmental destruction and Indian nations. The Navajo tribe's experiences with this relationship provide the primary window on this relationship, but other tribes' histories and decisions are also included. (9) In Part II, the often oppressive, and imposed, forms of environmental destruction of Indian land are presented, with a focus on coal leasing. Part III focuses on the stereotype of Indians as environmentalists and explores how, even after tribes formally regained some measure of decision-making power, inequities in bargaining and outcomes continued to exact forms of environmental injustice upon Native peoples. The Article shifts in Part IV to the current interplay between reservation poverty and environmental harms, focusing on the Desert Rock power plant proposal as an example of tribal acceptance of certain environmental costs in return for needed government revenue and reservation job creation. Three alternatives regarding tribal power--federal primacy, cooperative agreements, and nation-state treatment--are then explored. In Part V, I argue that the participation of environmental organizations in federally defined environmental oversight processes of reservation development reflects a denial of tribal sovereignty by such organizations. The Article concludes that treating Indian nations as subject to international human rights law provides the best way of respecting Indian sovereignty while also putting an outer limit on sovereignty when it comes to the environment.

2. OPPRESSION AND EXPLOITATION

   The Manhattan Project and America's nuclear weapons program left its mark on the Navajo Nation. While shocking in its lasting impact on Dine workers and families, the effects of unprotected uranium mining are but reflections of a larger pattern of oppressive natural resource extraction. (10) As one former worker noted, Navajo miners were treated as "expendable," were not informed of the dangers involved, and suffered grave health consequences. (11) Another ex-miner wondered why they were never warned of known health risks and asked, "Are we disposable to the government?" (12) Apparently so. As the New York Times reported, "Of all the chapters of the cold war and its aftermath in the United States, there are none, perhaps, quite as chilling as what happened to a generation of Navajo men and their families." (13) Even long after the more than one thousand mines closed or were abandoned, (14) Navajos inhaled radioactive dust blown off of open-air uranium piles, drank contaminated water, and even slept on floors constructed of waste material. (15)

   On April 19, 2005, the Navajo Nation Council passed the Dine Natural Resources Protection Act, (16) forbidding uranium mining "within Navajo Indian Country." (17) Signed into law ten days later by Navajo President Joe Shirley, Jr., the Act declared that uranium mining was antithetical to Navajo Fundamental Law regarding protection of the Nation's natural resources and to the teachings of medicine peoples regarding "harmony and balance in life and a healthy environment." (18) The Act was also a condemnation of the "social, cultural, natural resource, and economic damage...