The Evolving Path Toward Achieving Environmental Justice for Native America

Date01 September 2010
9-2010 NEWS & ANALYSIS 40 ELR 10905
The Evolving Path
Toward Achieving
Justice for Native
by James M. Grijalva and
Daniel E. Gogal
James M. Grijalva is Swenson Professor of Law and Director,
Tribal Environmental Law Project, University of North Dakota.
Daniel E. Gogal is Tribal Coordinator, Oce of Environmental
Justice (OEJ), U.S. Environmental Protection Agency.
Editors’ Summary
A lack of fully functioning regulatory programs has long
been the primary obstacle to achieving environmental
justice in Native A merica. EPA recognized that chal-
lenge some t wo decades before the environmental jus-
tice movement took hold, and has since built an Indian
program based on initial federal implementation where
feasible, with aspirations for later program assumption
by Indian tribal governments. Much work on the lat-
ter goal remains, but for tribes that have assumed pro-
gram roles, a new environmental justice issue has arisen:
ensuring the parties aected—tribal citizens, tribal
grassroots environmental organizations and others
within the jurisdiction of tribal programs—receive fair
treatment and have meaningful opportunities for inu-
encing tribes’ environmental decisionmaking processes.
Collaborative approaches for resolving tensions that
arise at times between tribal government decisionmak-
ing and community desires for greater environmental
protection may be the best means for preserving both
the environment and the legitimacy—political and cul-
tural—of tribal governments.
Like indigenous peoples throughout the world, Ameri-
can Indian tribes and Alaska Native communities
have suered, and continue to suer, serious negative
impacts caused by the dispossession of their la nds and the
lack of resources to develop in accordance with their own
aspirations, as well as pressures on their cultural, politi-
cal, spiritual, economic, and other societal considerations.
Of particular note, impacts from the imposition of energy
development and the consumptive natural resource exploi-
tation of their traditional territories have been signicant.
e extensive environmental and human health risks that
these impacts cause give rise to the call for environmental
justice for indigenous communities. In addition, and equally
important, the degradation of environmental quality directly
aects not only the public health of indigenous communities
but, quite often, their very identity and survival as distinct
peoples and cultures. e long legal and political relations
between tribes and the United States, which recognize that
tribes possess inherent governmental sovereignty, require
considerate solutions to these concerns. is Article analyzes
the evolution of the U.S. Environmental Protection Agency’s
(EPA’s) Indian Program and Environmental Justice Program
eorts to achieve environmental justice for Native America.
Section I of this Article briey reviews the development
of environmental justice as an organizing principle, and its
application to Indian country. Section II focuses on EPA’s
early identication of Indian country’s primary environ-
mental justice challenge—the lack of functioning, eec-
tive regulatory programs—and its commitment to lling
that gap through government-to-government relations w ith
Indian tribes. Section III explores a second, emergi ng envi-
ronmental justice issue, which is the call for greater citizen
involvement in tribal environmental decisionmaking pro-
cesses, and the use of collaborative approaches in resolvi ng
environmental disputes. Section IV concludes that futu re
progress on t hese two f ronts, and thus securing environ-
mental justice for Native America, rests on support for both
cultural and political self-determination for the nation’s
  
tribal workshops on Alternative Dispute Resolution, Environmental
   
  
   
(IWG) on Environmental Justice and co-chairs the IWG’s Native
    
 
      
tribal workshops on Alternative Dispute Resolution, Environmental
       
    
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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