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What Environmental Justice Means in Indian Country

Native activists demonstrate for Oak Flat at the U.S. Capitol. | Photo: Wendy Kanin, some rights reserved
Native activists demonstrate at the U.S. Capitol for protection of sacred sites at Oak Flat, Arizona from a proposed copper mine. | Photo: Wendy Kenin, some rights reserved

On Feb. 23, militarized police evicted at gunpoint the last remaining water protectors in the nearly year-long standoff at Standing Rock in North Dakota. In many ways, the culmination of the movement to protect tribal lands and resources was a replay of centuries of history in which Native peoples succumb to United States’ brutal military hegemony, and a long line of broken treaties.

The conflict began when the Army Corps of Engineers denied a permit for the Dakota Access Pipeline, originally designed to pass near the city of Bismarck, for the reason that it posed too great a threat to the city’s water supply. Its subsequent rerouting to within a half mile of the Standing Rock Sioux reservation—posing a danger to their own water and cultural resources—constituted what appeared to many people a textbook case of environmental racism. For the Standing Rock Sioux, Indian country more broadly, and their allies in the environmental movement, things had gone too far.

The Standing Rock conflict coalesced a number of different issues, bringing together the history of treaty violations and Native rights, sovereignty, civil and human rights, and environmental justice into one movement, known by its social media monikers #NoDAPL, #Mniwiconi, #Waterislife, and #StandwithStandingRock. It followed a pattern that has emerged in the past few years, where the climate justice movement is increasingly led by Indigenous peoples in North America and beyond, and highlights the inseparability of environmental and climate justice. But there are distinctions to be made with regard to environmental justice (EJ) battles when it comes to Indigenous peoples.

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EJ is defined by the United States Environmental Protection Agency as: “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EJ movement started, unsurprisingly, not as an academic discipline, but as activism in communities where toxic industries and other discriminatory practices were disproportionately occurring in low-income areas (which tended to be communities of color), resulting in increased health problems. This gave rise to the term “environmental racism.”  

In communities like these, residents rely on laws and statutory frameworks that are available to them as average American citizens, as described by the EPA’s definition above. The definition focuses on a framework of equality. Equality in a democracy means that all people, regardless of ethnicity or race, have equal opportunity to enjoy the potential advantages available to them; a comfortable life based on financial security, fair wages, a clean environment, education, etc. In other words, equality is based on material or economically-based values. We would call this a distributive model of justice.

Such a framework, however, doesn’t take into consideration the very different circumstances of Native American tribes. Native Americans as individuals are U.S. citizens, but they are also citizens of Indigenous nations, not ethnic minorities. As individuals, they are subject to normal American laws. As nations, however, they are subject to a completely separate legal regime, constructed on the basis of the pre-existing sovereignty acknowledged by treaties and the U.S. Constitution, which exist in perpetuity (forever), in addition to the laws of their particular nations. That extremely complex legal regime, among other things, delineates and affirms the sovereignty of Indian lands and the treaty rights they still retain on lands that were ceded to the United States (such as the lands at Standing Rock where the DAPL pipeline was designed to go, just outside reservation borders and under Lake Oahe).

Frameworks for EJ in non-Native communities that rely on distributive justice are built on capitalistic American values of land as commodity — i.e. private property — on lands that were expropriated from Native peoples. Even abstract ideas like the right to a clean environment reflect this commodification when seen in light of property values (for example, property values go down in polluted neighborhoods, or neighborhoods near noxious facilities).

Part of a protest flash mob in Times Square, Manhattan | Photo: A Jones, some rights reserved
Part of an Oak Flat protest flash mob in Times Square, Manhattan | Photo: A Jones, some rights reserved

Native peoples have very different world views when it comes to land, though. Those views are not based on monetary value, but are invariably characterized as relationships. In Indigenous value systems humans are seen as part of interrelated networks in much the same way human families are interrelated networks. The natural world is imbued with life in non-hierarchical ways; humans are no more important than any other aspect of the world. Relationships mean obligations to responsibility for the quality of those relationships, a sense of reciprocity, in the context of continuity with place.     

Further, because Indigenous peoples' relationships to the state (i.e. the United States) are different than those of ethnic minorities, environmental justice must exceed equality and be able to live up to the concepts of tribal sovereignty, treaty rights, and government-to-government relationships.

But what about tribal nations who don’t enjoy the status of federal recognition, such as state- recognized tribes, or terminated tribes? Or lands that have otherwise fallen out of tribal control, which would include sacred sites on federal, state, and private lands? Sacred site protection on non-tribally controlled lands is particularly problematic because what few laws there are to protect them are weak at best, and completely ineffectual at worst.

Consider two particularly high profile cases, the San Francisco Peaks and Oak Flat controversies. In the years-long San Francisco Peaks battle in Arizona, numerous tribes failed to stop the expansion of a ski resort on National Forest Service land which would make snow with recycled wastewater, on what is considered holy ground to Navajo, Hopi, and other Pueblo peoples. Oak Flat in Arizona—sacred to the San Carlos Apache—is still under threat of a massive copper mine to be built by Resolution Copper, a division of Rio Tinto, one of the worst corporate polluters and violators of human rights in the world.

In 1979 a dam break released 93 million gallons of radioactive wastewater from a New Mexico uranium mine into the Rio Puerco, a water source for the Navajo. Cleanup and health effects continue almost four decades later. | Photo: EPA
In 1979 a dam break released 93 million gallons of radioactive wastewater from a New Mexico uranium mine into the Rio Puerco, an important water source for the Navajo people. Cleanup and health effects continue almost four decades later. | Photo: EPA

In both cases appeals to violations of religious freedom were not enough to protect those sites. The same is true in the DAPL case. After the Trump administration reversed the Obama administration’s order for an environmental impact statement which halted the Lake Oahe crossing permit, a last ditch appeal to grant an injunction based on the violation of religious freedom has yet to work.   

Nowhere has protecting sacred sites been arguably more difficult than in Southern California where development has been like a cancer upon the land for Indigenous peoples. For example, according to the California Cultural Resources Preservation Alliance, at least 90% of known archeological sites have been destroyed in Orange County by development. But a couple of recent victories demonstrate the effectiveness of creative organizing by Native peoples with few other options in protecting sites.

In 2008 the United Coalition to Protect Panhe (UCPP), aligned with numerous other organizations like the Sierra Club, the Surfrider Foundation, and the San Onofre Foundation, successfully stopped the building of a toll road that threatened the famed surf break Trestles. Panhe, the Indigenous name for the area now known as San Onofre State Park, is known to be a 9,500 year old village and burial site (known as traditional cultural properties, or cultural resources in the legal language of the state) for Acjachemen/Juaneno people. Surfers and environmentalists focused on the devastating effects the road would likely have on wave quality and wildlife habitats, while Native peoples feared the destruction of their sacred site, which is also eligible for the National Register of Historic Places. The California Coastal Commission declined to grant a permit for the road — killing the project — on the grounds of all the offensive aspects, including the threat to the Native cultural resources.

Abandoned oil field machinery on sacred land at Banning Ranch | Photo: Larrry Tenney, some rights reserved
Abandoned oil field machinery on sacred land at Banning Ranch | Photo: Larry Tenney, some rights reserved

Similarly, just last year a coalition of environmentalists and Native Americans successfully blocked the building of a mega-development in Newport Beach. The Coastal Commission denied a permit for the development on what is today known as Banning Ranch (“Genga” to local tribes), based on the location of numerous traditional cultural properties and sensitive habitats.  

Some environmental activists — Naomi Klein among them — believe that Indigenous peoples hold special hope for their ability to protect the environment based on their differentiated legal status and unique rights. However, as the example of Standing Rock painfully illustrates, those rights are far too fragile seen in the light of a political system that can change with the shifting winds of elections. So much of the work accomplished by decades of progressive vision to protect the environment appears to be unraveling in one administration run predominantly by fossil fuel crony capitalists.

Indian country is further vulnerable to political volatility due to the plenary power doctrine, which gives Congress ultimate authority over Indian affairs. It is not inconceivable that in a hostile political environment decisions can be made that disempower and sabotage Native nations’ hard won self-determination.

At the end of the day, for environmental justice to be truly meaningful and effective in Indian country, the U.S.’s history of colonialism, and Indigenous world views, must be acknowledged and built into legal frameworks. Until then, EJ will continue to be haphazard and uneven.