Environmental justice, American Indians and the cultural dilemma: Developing environmental management for tribal health and well-being

Environmental Justice

Volumn 4, Issue 4, 2011, Pages 221-230

  Ranco, Darren J ^a   O'Neill, Catherine A ^b   Donatuto, Jamie ^c   Harper, Barbara L ^d  

^a University of Maine   (United States)

^b SEATTLE UNIVERSITY   (United States)

^c Swinomish Indian Tribal Community   (United States)

^d Confederated Tribes of the Umatilla Indian Reservation ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURAL TRADITION; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL MANAGEMENT; ETHNIC GROUP; INDIGENOUS POPULATION; SELF GOVERNMENT; SOVEREIGNTY; TERRITORY;

UNITED STATES;

EID: 84855184624     PISSN: 19394071     EISSN: None     Source Type: Journal    
DOI: 10.1089/env.2010.0036     Document Type: Article

References (61)

1. While some attributes of sovereignty have been curtailed, tribes remain vested of their inherent sovereign powers except where these have been expressly qualified by treaty or congressional legislation. Felix Cohen, Handbook of Federal Indian Law (1982), 235.
2. Dean B. Suagee, Dimensions of Environmental Justice in Indian Country and Native Alaska, (Second National People of Color Environmental Leadership Summit Resource Paper Series, 2002).
3. For a discussion of the sources of tribal environmental regulatory authority, see Felix Cohen, Handbook of Federal Indian Law (1982);
4. See, generally, Judith A. Royster and Michael C. Blumm, Native American Natural Resources Law: Cases and Materials (2d ed. 2008), 193-297.
5. See U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).
6. See, e.g., James M. Grijalva, Closing the Circle: Environmental Justice in Indian Country (Carolina Academic Press, 2008), 4 (observing that "tribes' status as sovereign governments under federal law and their strong cultural and spiritual connections with the natural environment uniquely distinguishes them" among groups affected by environmental injustice and arguing that the harms experienced by tribes and their members "may derive more from jurisdictional uncertainties hampering effective regulatory control" and that the "solution may lie in tribes' inherent powers over their territories.").
7. For example, the five federally recognized tribes in Maine, the Aroostook Band of Micmacs, the Penobscot Indian Nation, the Passamaquoddy Tribe at Indian Township, the Passamaquoddy Tribe at Pleasant Point, and the Houlton Band of Maliseet Indians, through a cooperative agreement with the U.S. Environmental Protection Agency (EPA), produced the Wabanaki Traditional Cultural Lifeways Exposure Scenario, which documents these tribes' traditional cultural lifeways and uses of natural resources, presenting the data in a form that can be used by EPA and other government entities when setting or approving water quality and other environmental standards.
8. Darren J. Ranco and Barbara Harper, "Wabanaki Traditional Cultural Lifeways Exposure Scenario," Environmental Protection Agency, (accessed Sept. 29, 2010).
9. See discussion in Part III, infra.
10. See, e.g., Clean Water Act, 33 U.S.C. § 1377(e) (1987);
11. see also Jill Elise Grant, "The Navajo Nation EPA's Experience with 'Treatment as a State' and Primacy," Natural Resources & Environment 21 (2007): 9-15.
12. For example, Oregon's Environmental Quality Commission recently adopted a fish consumption rate of 175 grams/day for use in the state's water quality standards, a figure that represents a tenfold increase over the current standard of 17.5 grams/day (the default value suggested by EPA for the general U.S. population).
13. Oregon Department of Environmental Quality, Oregon Fish Consumption Rate Project (2008);
14. See also, Catherine A. O'Neill, "Protecting the Tribal Harvest: The Right to Catch and Consume Fish," Journal of Environmental Law & Litigation 22 (2007): 131-151. (Pubitemid 47421494)
15. The new, 175 gram/day figure, however, falls short of historical or heritage rates consonant with the Columbia River Basin tribes' practices at treaty time; these rates have been documented to be as high as 1,000 grams/day. Jamie Donatuto and Barbara Harper, "Issues in Evaluating Fish Consumption Rates for Native American Tribes," Risk Analysis 28 (2008): 1497-1506.
16. U.S. Environmental Protection Agency: Office of Environmental Cleanup, Region 10, "Midnite Mine Superfund Site Spokane Indian Reservation: Record of Decision," (accessed Sept. 29, 2010).
17. These standards were approved by the U.S. Environmental Protection Agency under the rubric of the TAS provisions in the Clean Water Act. Pueblo of Isleta, "Surface Water Quality Standards (adopted 1992, amended 2002)," (accessed September 29, 2010).
18. The enforcement of these tribal standards was challenged by the city of Albuquerque, which operated a wastewater treatment plant five miles upstream and complained that the tribe's water quality standards were more stringent than those adopted by the state of New Mexico. Albuquerque's challenge, lodged against then EPA Administrator Carol Browner, was unsuccessful in court. City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).
19. Dispute Resolution with the State of Michigan," 73 Fed. Reg. 23107 (Apr. 29, 2008);
20. State of Michigan v. Environmental Protection Agency and Forest County Potawatomi Community, 581 F.3d 524 (7th Cir. 2009).
21. See, e.g., Rebecca Tsosie, "Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge," Vermont Law Review 21 (1996): 225-333.
22. Vine Deloria, Jr., interview in documentary film, In the Light of Reverence: Protecting America's Sacred Lands, (Christopher McLeod, producer and director, 2001).
23. See Ann Giribaldi and Nancy Turner, "Cultural Keystone Species: Implications for Ecological Conservation and Restoration," Ecology and Society 9(3) (2004): 1. Available at (last accessed Oct. 2007).
24. See, e.g., Ronald L. Trosper, Resilience, Reciprocity and Ecological Economics: Northwest Coast sustainability (2009).
25. Erma Gunther, "An Analysis of the First Salmon Ceremony," American Anthropologist (1926): 605-617.
26. For a contemporary recognition of this sense of obligation, see, e.g., Columbia River Inter-Tribal Fish Commission, Wy-Kan- Ush-Mi Wa-Kish-Wit (Spirit of the Salmon), available at < http://www.critfc.org/text/trp.html> ("The salmon.are a gift from the Creator that we must preserve, protect and enhance, passing them down as we found them from generation to generation. To do otherwise.would be a disgrace to ourselves and an insult to our children.").
27. Ed Goodman, "Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right," Environmental Law 30 (2000): 308.
28. The term "usufruct" is a concept from property law of Western origin.
29. See, e.g., William H. Rodgers, Jr., "Tribal Government Roles in Environmental Federalism," Natural Resources & Environment 21 (2007): 3-8;
30. William H. Rodgers, Jr., Environmental Law in Indian Country (Thomson/West, 2005).
31. See, e.g., Darren J. Ranco, "Models of Tribal Environmental Regulation: In Pursuit of a Culturally Relevant Form of Tribal Sovereignty," Federal Lawyer 56 (2009): 46-49.
32. See, e.g., Stuart Harris and Barbara Harper, "A Native American Exposure Scenario," Risk Analysis 17 (1997): 789-795; (Pubitemid 28123861)
33. Stuart Harris and Barbara Harper, "Using Eco-Cultural Dependency Webs in Risk Assessment and Characterization of Risks to Tribal Health and Cultures," Environmental Science and Pollution Research 2 (2000): 91-100;.
34. See discussion in Part III, infra.
35. See, e.g., Darren Ranco and Dean Suagee, "Tribal Sovereignty and the Problem of Difference in Environmental Regulation: Observations on a 'Measured Separatism' in Indian Country," Antipode 39 (2007): 691-707; (Pubitemid 47433958)
36. Sam Deloria, "New Paradigm: Indian Tribes in the Land of Unintended Consequences," Natural Resources J. 46 (2006): 301-315. (Pubitemid 46189526)
37. Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life (University of California Press, 1995), 99.
38. See, e.g., Native Nations Institute, "Udall Foundation Scholars: Native Nation Building" (presentation, August 4, 2010, Tucson, Arizona).
39. See, e.g., William H. Rodgers, Jr., Environmental Law in Indian Country (Thomson/West, 2005) 24 ("The [Stevens] treaties placed a protective property shell around what the Indians called "their places" and "their fishing.").
40. On current views in U.S. courts, assertions of tribal management authority over tribally important resources raises issues of jurisdiction both within the territorial boundaries of tribes' reservations (e.g., when management affects lands held in fee simple by non-tribal members) and outside of reservation boundaries (e.g., when management implicates rights that are limited in scope, including location).
41. For recent discussions, see, e.g., Marren Sanders, "Ecosystem Co-management Agreements: A Study in Nation Building or a Lesson on Erosion of Tribal Sovereignty?," Buffalo Environmental Law Journal 15 (2007-08): 97-177;
42. Marren Sanders, "Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State," William Mitchell Law Review 36 (2009): 533-564.
43. See, James Anaya, "On Justifying Special Ethnic Group Rights," Ethnicity and Group Rights, NOMOS XXXIX (Ian Shapiro and Wil Kymlicka eds., 1997).
44. See, e.g., Jackie Johnson and Darren J. Ranco, "Risk Assessment and Native Americans at the Cultural Crossroads: Making Better Science or Redefining Health?," in Technoscience and Environmental Justice: Transforming Expert Cultures through Grassroots Engagement, (Gwen Ottinger and Benjamin Cohen, eds, MIT Press, forthcoming, 2011) (recounting EPA's demand that tribal programs describe selves as "holistic" in order to be included in study of tribally determined approaches).
45. Stuart Harris and Barbara L. Harper, "Lifestyles, Diets, and Native American Exposure Factors to Possible Lead Exposures and Toxicity," Environmental Research 86 (2001): 140-148; (Pubitemid 32656307)
46. Mary Arquette, et al., "Holistic Risk-Based Environmental Decision Making: A Native Perspective," Environmental Health Perspectives 110 (2000): 259-262;
47. Jeanette Wolfley, "Ecological Risk Assessment and Management: Their Failure to Value Indigenous Traditional Ecological Knowledge and Protect Tribal Homelands," American Indian Culture and Research Journal 22 (1998): 152-169.
48. Barbara L. Harper, et al., "Traditional Tribal Subsistence Exposure Scenario and Risk Assessment Guidance Manual," U.S. Environmental Protection Agency, Grant Number EPA-STAR-J1-R831046 (Oregon State University Printing andMailing, 2007) .
49. see also, Catherine A. O'Neill, "Risk Avoidance, Cultural Discrimination, and Environmental Justice for Indigenous Peoples," Ecology Law Quarterly 30 (2003): 1-57. (Pubitemid 36598600)
50. Swinomish Indian Tribal Community, "Bioaccumulative Toxics in Native American Shellfish," U.S. Environmental Protection Agency, STAR grant #R-82946701, 2002-2006.
51. The four original health indicators developed by the Swinomish Tribe are described in: Jamie Donatuto, Terre Satterfield, and Robin Gregory, "Poisoning the body to nourish the soul: Prioritizing health risks and impacts in a Native American community," Health, Risk, and Society 13 (2011): 103-127.
52. Paul C. Stern and Harvey Fineberg, eds., Understanding Risk: Informing Decisions in a Democratic Society (Washington D.C.: National Academy Press, 1996).
53. Critiques of the conventional risk assessment framework are neither new nor isolated. Numerous critics cite uncertainty and human inter-individual variability as prime faults (e.g., see Adam M. Finkel, "Is Risk Assessment Really too Conservative?: Revising the Revisionists," Columbia Journal of Environmental Law, 14 (1989): 427-467;
54. M. Russell and M. Gruber, "Risk assessment in environmental policy-making," Science, 236 (1987): 286-290; (Pubitemid 17061044)
55. A.C. Upton, "Science and judgment in risk assessment: Needs and opportunities," Environmental Health Perspectives 102 (1994): 908).
56. Social scientists have critiqued the framework for its failure to address social and psychological determinants of risk, as well as locally experienced social consequences of harm (e.g., see James Flynn, Paul Slovic, and C.K. Mertz, "Race, gender, and perception of environmental health risks," Risk Analysis, 14 (1994): 1101-1108;
57. Terre Satterfield, "Risk, remediation, and the stigma of a technological accident in an African-American community," Human Ecology Review, 7 (2000): 1-11; (Pubitemid 30610884)
58. Paul Slovic, "Perception of risk: Reflections on the psychometric paradigm," in Social Theories of Risk: 117-152 (1992), New York: Praeger, (S. Krimsky and D. Golding, eds.)). Environmental justice advocates have long voiced objections to agencies' reliance on QRA, given its numerous shortcomings.
59. See, e.g., National Environmental Justice Advisory Council, Ensuring Risk Reduction in Communities with Multiple Stressors: Environmental Justice and Cumulative Risk/ Impacts (2004).
60. For background on QRA and environmental justice, see chapter 6, "Risk and Health," in Clifford Rechtschaffen, et al., Environmental Justice: Law, Policy & Regulation (2d ed. 2009).
61. See, e.g., U.S. Environmental Protection Agency, Region X, "Framework for Selecting and Using Tribal Fish and Shellfish Consumption Rates for Risk-Based Decision Making at CERCLA and RCRA Cleanup Sites in Puget Sound and the Strait of Georgia" (August 2007) at 5 (recognizing that "the quantitative nature of the risk assessment process inadequately addresses the impacts" of chemical contamination on tribal culture and lifeways; inviting tribes "to provide a qualitative discussion of their perceptions as to how fish and shellfish chemical contamination has affected them;" and indicating that "[t]his information would be forwarded to EPA risk managers along with the quantitative risk assessment.").