"Environmental Justice" for Indigenous Peoples: A Case Study of the Louden Tribal Council


Eng "Environmental Justice" for Indigenous Peoples: A Case Study of the Louden Tribal Council
Eng Holly, Carole Anne
Eng Environmental Studies
extracted text

Carole Anne Holley

A Thesis
Submitted in partial fulfillment
of the requirements for the degree
Master of Environmental Studies
The Evergreen State College
August 2013

©2013 by Carole Anne Holley. All rights reserved.

This Thesis for the Master of Environmental Studies Degree
Carole Anne Holley

has been approved for
The Evergreen State College
Edward Whitesell
Member of the Faculty


“Environmental Justice” for Indigenous Peoples:
A Case Study of the Louden Tribal Council
Carole Anne Holley
This thesis is a critical study of how “environmental justice” has been used as a
framework for federal relations with tribal governments in the United States. The
thesis specifically compares (a) the federal government’s trust and treaty
obligations along with concomitant laws and regulations; (b) tribal perspectives
and expectations regarding such practices; and (c) a wider set of literature about
the impacts of federal environmental regulation on tribes, especially in Alaska.
This thesis argues that environmental justice is a faulty tool for tribes that can
have adverse environmental, social, and political impacts, because environmental
justice laws and policies frame Native Americans as racial minorities, instead of
approaching environmental issues through the unique relationship that has been
historically established between the federal and tribal governments.
The Louden Tribe (federally-recognized as the Louden Tribal Council) of Alaska
was used as a case study. The tribe has faced contamination of subsistence
resources and loss of land rights. Louden Tribal Council members perceive that
the Department of Defense (DoD) is responsible for much of the contamination.
Although federal agencies, such as the DoD, are mandated to work on a
government-to-government basis with tribes, this thesis shows that this has not
always been the case in practice. This case study shows that reliance on an
environmental justice policy framework instead of a government-to-government
relationship has resulted in negative environmental and socio-cultural impacts.
An interdisciplinary approach was taken in this research, incorporating legal and
policy analysis, cultural anthropology, political science, geography, and biological
sciences. The findings of this research show that, while there is a place for the
environmental justice framework in relation to Native Americans, reliance on this
policy framework as a substitute for government-to-government relations could
create a precedent for Alaska Natives and all Native Americans to be defined by
race and not by their sovereign political status.

Lists of Figures and Tables




Chapter 1

An Introduction

Chapter 2

Chapter 3

Chapter 4

Chapter 5


SOVEREIGNTY: A Literature Review



Environmental Justice



Global Indigenous Environmental Struggles



Federal Responsibility to Tribes



Alaska Native-Specific Laws





The Middle Yukon Valley in Perspective



Galena: A Historical View





Addressing Contamination: First Steps



LTC: Facing the Harder Questions



Sampling a Traditional Food Source





Lessons Learned on Environmental Justice



Pursuing Environmental Self-Determination 105



Map of Existing or Proposed Threats to Indian Lands
in the Western United States.



Map Showing Location of Galena, Alaska



Map of Indigenous Peoples & Languages



Large-scale Topographic Map of Campion and Galena



Map Overview of Toxic Waste Sites in Alaska



Aerial View of Galena



MOA Signing Ceremony



Yukaana Development Corp. and USAF Barrel Removal



Map of Contaminated Sites of Galena AFS



Galena Flood 2013


Results of LTC Burbot Sampling




First, I would like to express my sincerest gratitude to the Louden Tribal
Council and the community of Galena. My position as the Environmental
Director at Louden permitted me to know the human community in a way that I
could never have imagined – whether by sorting through trash in the dump as part
of a waste stream analysis, cutting and jarring fish with Mary Stickman, ice
fishing and dissecting burbot for contaminant testing, learning how to make a
bets’eghe hoolaane from Erica Cleaver and Allison Esmailka, or attending a
potlatch and dancing the night away at a fiddle dance. I was inspired and moved
by so many. Special thanks must go to some extraordinary people that I am ever
so grateful to have called colleagues and friends: Peter Captain, Sr.; Ragine Attla;
Cindy Pilot; Phil Koontz; Dorothy Yatlin; Eleanor Yatlin; Joe Wright; and Eileen
Jackson. Thank you to Jean Gamache and Lisa Gover for simply being
themselves – smart, strong, Native American women with heart who provided me
with guidance in times of need and with the motivation to make my own journey
through the murky halls of the legal profession. And, my deepest love and
appreciation to Darcie Warden who was with me in Galena from the day I started
to the day I left – her passion, patience, intelligence and simple sense of joy in life
is unmatched.
Thank you to Ted Whitesell and The Evergreen State College for never
giving up on me. While there were occasions where I was lost in thesis-land –
writing, re-writing, quitting and going to law school, writing and re-writing some
more – Ted and Evergreen gave me the opportunity to finish my thesis and
produce a work of which I can be proud. Additionally, Evergeen was the impetus
for my move to Alaska. Without MES and its awesome faculty – Gerardo ChinLeo, Ralph Murphy, Cherie Lucas-Jennings, Martha Henderson, and John Perkins
– I may not have found my home. I, also, would not have found my soul sisters –
Theresa Nation, Jennifer Guimaraes, and Debora Holmes. They too never gave
up on me and for 12 years with every conversation they would ask, “So, have you
finished your thesis yet?” I now happily can say, “Yes!”
Finally, thanks to my Mom who thought I was crazy for moving to Alaska
but visited me in Galena anyway. Her unflagging support through too many
degrees and too few (in my opinion) travels has given me the ability to be
nurtured and inspired by life and to find the place where I belong: Alaska.


Chapter 1
An Introduction
Environmental degradation is occurring on a global scale. Global climate
change is real. The increased toxicity of our foods is real. Suicide is real.
Oppression of indigenous peoples is real. These are not separate and disparate
issues. The philosophy that drives people to be discriminated against drives
reckless disregard for the land, air and water. One way to stop environmental
destruction is to halt subjugation of indigenous people.
On many levels indigenous peoples worldwide are struggling for
environmental preservation. They struggle locally, nationally and internationally
for clean water, air, land and the recognition of their sovereignty to protect these
valuable resources. They face hazards to their health and welfare from outside
sources through such operations as natural resource extraction and the siting of
toxic waste incinerators. They are not, however, the only subaltern group to
suffer from disproportionate exposures to environmental hazards. Communities
of color and economic hardship have historically born the brunt of toxic materials.
This disproportionate shouldering of exposure to environmental hazards (such as
DDT and mercury) has become part of our structural reality through zoning and
Environmental racism by definition is a state of powerlessness with
respect to exposures to environmental hazards for marginalized people. Many
subaltern groups, however, have been able to use this apparent state or condition

of impotency as a catalyst for change. Their shared, impoverished condition has
become, ironically, a place of power. Growing momentum in the environmental
justice movement exacts the power to organize the masses and make incremental
steps towards a restructuring of the dominant society’s institutional mechanisms.
Is it, however, the movement for indigenous peoples? Are they just another
marginalized group of people dealing with the impacts of structural racism, which
allows for toxic waste incinerators and military bases to be placed in
economically depressed or rural locations? I argue that while the location and
continued contamination of indigenous lands may be based on racism, using
environmental justice as a tool disempowers tribes, which are sovereign
domestically-dependent nations with a right to environmental self-determination.
In coming to this conclusion, I addressed one key question: Is federal
environmental regulation in the United States always in compliance with federal
treaty obligations and federal trust responsibility to sovereign tribes and, if not,
are there observable consequences, as a direct result of such violations? In this
work, I will be reporting on a historical set of practices, and analyzing them in
comparison with (a) the federal trust responsibility and associated federal
mandates and court decisions; (b) tribal perspectives and expectations regarding
such practices; and (c) a wider set of literature about the impacts of federal
environmental regulation on tribes.
The Louden Tribe will serve as a case study. Although federal agencies
are mandated to work on a government-to-government basis with tribes, the data
will show that, in practice, this does not always occur, and that there can be

environmental and sociocultural impacts of using the wrong process. Although,
this thesis focuses on a single indigenous group in Alaska, aspects of its politics
and analysis are applicable to indigenous peoples across the United States.
This paper is laid out in five chapters. The second chapter will review the
literature available on the topics of indigenous environmental struggles, federal
responsibility to tribes, and Alaska Native-specific laws. The third chapter will
attempt to put the Louden Tribe’s experience in perspective. It will be an
examination of the tribe and its struggles, briefly delving into the history of the
area, the stories and the landscape. In chapter four, I include examples of some of
the work that is being done by the Louden Tribe to analyze the health of its local
environment. On behalf of the tribe, I conducted a round of sampling of burbot
(Lota lota), a resident fish species. The methodology, findings and analysis are
presented. And finally, in chapter five, I will present a discussion of the results of
Louden’s work, analyzing contributions and shortcomings in the context of the
larger indigenous struggle and then provide recommendations that may aid the
tribe’s battle in the future.
First-hand field experience was integral to my research.

Carl Sauer

believed that the best way to learn was through active apprenticeship, fieldwork and
observation.1 Working as the environmental director for the Louden Tribal Council
allowed the opportunity to do all three. It also leant a level of access that would
otherwise not have been attained. I examined documents pertaining to the Louden
Tribal Council and the Department of Defense (DoD) at the United States Fish and

Peter Jackson, Maps of Meaning (London: Unwin Hyman, 1989).


Wildlife Service (USFWS) Koyukuk Refuge District office and the Galena City
School Library. Alaska Interlibrary Loan and online databases were also helpful in
providing needed documentation from such sources as the Rasmusson Library in
Fairbanks. Besides archival work, I interviewed Louden Tribal members, U.S. Air
Force (USAF) employees, and attended various meetings and conferences to gain
insight into indigenous struggles.


Chapter 2
A Literature Review
Indigenous environmental struggles occur across the globe as well as
within the borders of the United States. While legal standing and recognized
sovereign rights differ from country to country and state to state amongst
indigenous populations, there are some common lessons that can be learned and
shared across borders. This literature review will first examine the body of
knowledge that exists about environmental justice. It will then review indigenous
environmental struggles across the globe. It will next focus on the United States
and the federal government’s responsibility to tribes. And, finally, it will review
the laws and policies that are specific to Alaska Native tribes.


Environmental justice is defined by Robert D. Bullard in Unequal
Protection: Environmental Justice and Communities of Color as a condition that
exists when:
Some individuals, groups, and communities receive less protection
than others because of their geographic location, race, and
economic status…pollution presents potential threats to public
health that individuals with affluence or political clout are
unwilling to accept. Risk burdens are localized, yet the benefits
are generalized across all segments of society…Over the years,
disparities have been created, tolerated, and institutionalized by
local, state, and federal action.2


Robert D. Bullard, Unequal Protection: Environmental Justice & Communities of Color (San
Francisco, CA: Sierra Club Books, 1994).


Low-income and minority populations often face “disproportionately high
environmental risks.”3 According to proponents of the environmental justice
framework, the only way to have justice restored is for the rights of these
marginalized peoples to be returned.4
Further discussion of what constitutes “marginalized peoples” is required.
Marginalized peoples are groups that can be described as less powerful
assemblages who are “excluded from resources over which dominant groups exert
control and to which they have privileged access.”5

According to Jackson,

“racism refers to the assumption, consciously or unconsciously held, that people
can be divided into a distinct number of discrete ‘races’ according to physical,
biological criteria and that systematic social differences automatically and
inevitably follow the same lines of physical differentiation.”6

It implies a

collection of thoughts and attitudes that carry the influence of power. These
beliefs are encapsulated in regulations and the application of those regulations.7
This often means that the groups who are most in need of technological, scientific
and legal resources to solve the problem of contamination at home have the least
access.8 Marginalized groups face adversity from all angles. This is evident in
environmental policies, zoning regulations and in the attitudes of governmental

One place that groups would hope for support is their local


Environmental Justice Office, Reviewing for Environmental Justice: E.I.S. And Permitting
Resource Guide (US Environmental Protection Agency Region 10, 1998).
Stella M. Capek, "The Environmental Justice Frame: A Conceptual Discussion and an
Application," Social Problems 40, no. 1 (1993).
Jackson, 54.
Ibid., 132-33.
Ibid., 54.
Capek, "The Environmental Justice Frame: A Conceptual Discussion and an Application."



Often this is also lacking. Local governments are not always

supportive of grassroots efforts to expose contamination and spur remediation. It
is frequently cited that such activities could harm the areas’ image.10

It is

perceived that property values could be lowered and tourist opportunities might
be lost.11
The above discussion is the very reason for the existence of an
environmental justice (EJ) framework. In the U.S., various studies have found a
disparity in the pace, cleanup methods and penalties between white communities
and communities of color. It has been found that the EPA has been 22% more
likely to order cleanup over containment in white communities as compared to
their actions in communities of marginalized groups.12 In order to restore some
sort of equilibrium, the EJ framework details the rights of marginalized peoples.
Many of these rights are common to all and, in the United States, are bound in
law. These rights include the right to factual information. The Freedom of
Information Act (FOIA) is one tool that disadvantaged communities can use to
achieve the first right.

Second, when citizens lodge a complaint regarding

contamination, the claimants should have a quick, unbiased hearing. The EJ
framework also specifies that claimants should have equal participation in
deciding the fate of the polluted area. Finally, it states that those who have
suffered due to contamination should receive compensation for their injuries.13


Celene Kraus, "Community Struggles and the Shaping of Democratic Consciousness,"
Sociological Forum 4, no. 2 (1989).
Michael F. Gearheard (Director, Environmental Cleanup Office, EPA) in discussion with the
author, 2002.
Capek, "The Environmental Justice Frame: A Conceptual Discussion and an Application."


This framework provides invaluable information to marginalized groups needing
direction and also allows for organized grassroots groups to show a pattern to
their complaints.14
Groups become more than just a lone voice; they join hundreds of other
communities striving for a clean place to live, work and play. A nationwide sense
of community exists among disenfranchised groups that are looking for a solution
to contamination and restitution for those who have suffered.15 Furthermore, the
labeling of a problem as an environmental justice issue lends credence and power
to a group’s claim of chemical contamination. This extends to varying levels of
government, including the local community government, and allows for more
effective community mobilization.16 This power is described by Peter Jackson in
reference to race relations: “It is racism that sets the limits on their social actions,
simultaneously comprising the structural determinant of their subordination and
the medium through which they can most readily challenge the subordination.”17
On February 11, 1994, President Clinton issued Executive Order 12898,
“Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations.”18 The Executive Order (EO) instructs federal agencies
to address programs, policies, and activities that have a disproportionate,
significant impact on the health and/or environment of minority and low-income
communities. Federal agencies are directed to apply environmental laws equally.


Jackson, 52.
Exec. Order No. 12,898, 59 C.F.R. 7629 (Feb. 16, 1994).


The discussion about environmental justice in relation to indigenous peoples will
be developed further in Chapter 5.

“The cultural is political.”19

There are many ways to characterize a people’s fight for their way of life.
One could describe it as a struggle for cultural preservation. In some cases it may
be labeled as a civil rights case. For indigenous peoples, this struggle often comes
down to sovereignty issues, and the environment is tied into it all.20 Many authors
agree that a common element among indigenous groups globally is their natural
world-based ethos.21

For example, the Sami of Scandinavia use one word,

Duovda, to describe land as a provider of physical and spiritual sustenance.22
This ethos has been described by activists and academics as demonstrating the
profound respect indigenous peoples have for all aspects of nature.23 Each aspect
of nature, whether it be flora or fauna, has its own spiritual standing.24 As
LaDuke states, “Native rituals are frequently based on the reaffirmation of the
relationship of humans to the Creation.”25

Unfortunately, too often this

relationship is disturbed by outside influences.


Jackson., 2.
Brian Myers, "Indigenous Peoples, the Environment and the Law," Georgetown International
Environmental Law Review 17, no. 3 (2005).
Mary Christina Wood and Zachary Welker, "Tribes as Trustees Again (Part I): The Emerging
Tribal Role in the Conservation Trust Movement," Harvard Environmental Law Review 32, no. 2
(2008): 374.
Brian Myers, "Indigenous Peoples, the Environment and the Law," Georgetown International
Environmental Law Review 17, no. 3 (2005): 6.
Wood and Welker, "Tribes as Trustees Again," 374.
Ibid., 379-80.
Ibid. (quoting Winona Laduke, Recovering The Sacred: The Power of Naming and Claiming,
(Cambridge: South End Press, 2005), 4.)


Indigenous environmental struggles are not new.

The early days of

struggle were heralded by vast numbers of animals being killed for their fur or for
sport by European immigrants, and thus removing valuable resources from the
indigenous resource base.26 These European immigrants then moved into the
taking of land for mining and military exploitation.27 Now, indigenous peoples
deal with the reality of limited resources (e.g., terrestrial and marine species,
land), years of hazardous waste disposal in their traditional use areas, along with
confronting often-unforgiving political challenges. Figure 2.1 illustrates just a
few of the threats – from oil and gas development to mining – confronting
indigenous peoples in the Western United States. This leads to the question
“What is the best way for indigenous peoples to confront these challenges?”


Tim Flannery, The Eternal Frontier: An Ecological History of North America and Its People
(New York.: Grove Press, 2001).
Donald Fixico, The Invasion of Indian Country in the Twentieth Century: American Capitalism
and Tribal Natural Resources (Boulder, CO: University Press of Colorado, 1998).


Figure 2.1: Map of existing or proposed threats to Indian lands in the Western U.S.28

In order to fully explore that question, it seems appropriate to provide
some context for the discussion.

First, I will provide a definition for

“indigenous.” Then I will define “culture” for purposes of this thesis. Finally, I

Created by the Indigenous Environmental Network (IEN). The map is now about ten years outof-date and no longer available on the Internet. Unfortunately, the existing and proposed threats
have quadrupled in that time due to increased oil and gas activities.


will examine what the international community is doing to address indigenous
struggles. Several declarations have been signed and working groups have been

What have they accomplished and how does their work apply to

individual tribal groups?

Term “indigenous” in an international context

According to the Webster’s Ninth New Collegiate Dictionary, “indigenous”
means “having originated in and being produced, growing, living, or occurring
naturally in a particular region or environment.”29 UN Special Rapporteur Jose
Martinez Cobo produced the “Study of the Problem of Discrimination against
Indigenous Populations” for the Subcommission on Prevention of Discrimination
and Protection of Minorities. His report defined indigenous peoples, communities
and nations as:
[T]hose which have a historical continuity with pre-invasion and precolonial societies that developed on their territories, consider themselves
distinct from other sectors of societies now prevailing in those territories,
or parts of them. They form at present non-dominant sectors of society
and are determined to preserve, develop, and transmit to future
generations their ancestral territories, and their ethnic identity, as the
basis of their continued existence as peoples, in accordance with their
own cultural patterns, social institutions and legal systems.30
The only legally binding definition of indigenous peoples is found in the
International Labour Organization’s (ILO) Convention 169, adopted in 1989.31


Merriam-Webster’s Collegiate Dictionary, Ninth ed. (Cambridge, MA: Merriam-Webster,
Report of the Special Rapporteur, Mr. José Martínez Cobo, on the problem of discrimination
against indigenous populations (E/CN.4/Sub.2/1986/7/Add.4).
Renee Sylvain, "Land, Water and Truth: San Identity and Global Indigenism," American
Anthropologist 104, no. 4 (2002): 1075.


This definition, which is binding only upon the convention’s signatories, states
that indigenous peoples are:
1(a) Tribal peoples in independent countries whose social, cultural and
economic conditions distinguish them from other sections of the national
community, and whose status is regulated wholly or partially by their
own customs or traditions or by special laws or regulations;
(b) Peoples in independent countries who are regarded as indigenous on
account of their descent from populations which inhabited the country,
or a geographical region to which the country belongs, at the time of
conquest or colonization or the establishment of present state boundaries
and who, irrespective of their legal status, retain some or all of their own
social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a
fundamental criterion.32
Thus, a discussion of indigenous includes “non-dominant elements,” within
“ancestral territories,” or “populations, which inhabited a geographic region… at
the time of conquest.”
Rebecca Tsosie, professor and executive director of the Indian Legal
Program at Arizona State University College of Law, argues that there is an
increasing recognition at various levels (i.e., political and cultural) that indigenous
peoples are unique and that their rights must be recognized as distinct from other
groups.33 She bases her assertion on several criteria that are similar to the ILO
definition: (1) that indigenous peoples are native to the lands that they inhabit; (2)


International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27
June 1989, C169, http://www.refworld.org/docid/3ddb6d514.html.
Rebecca Tsosie, "Indigenous People and Environmental Justice: The Impact of Climate
Change," University of Colorada Law Review 78, no. Fall (2007): 1653.


they continue to engage in traditional practices; and (3) they maintain a separate
political and cultural character.34
Benjamin J. Richardson, the Canada Research Chair in Environmental
Law and Policy at the University of British Columbia, also contends “the
international system is increasingly recognizing non-state entities such as
indigenous peoples.”35 One symbolic example of this recognition is the two
United Nations Decades for Indigenous Peoples (1995-2004 and 2005-2015).36

Culture Does the Environment Good

“Culture” is not something that is easily defined.37 As this work is not
meant to be a critique under the rubric of cultural anthropology, for discussion
purposes, I will use a common dictionary definition.

The Oxford English

Dictionary defines “culture” as “the customs, arts, social institutions, and
achievements of a particular nation, people, or other social group.”38 Cultural
harm occurs when indigenous peoples are prevented from participating in their
traditional practices (i.e., hunting, gathering, beading, spiritual practices). As
Professor Wood from the University of Oregon Department of Law, explains,
tribal culture is inextricably linked to the land.
Specific landscapes reaffirm an interconnected worldview. Tribal
communities continue to have a deep relationship with ancestral
homelands for sustenance, religious communion and comfort, and
to maintain the strength of personal and interfamilial identities.

Ibid., 1653-54.
Benjamin J. Richardson, "Environmental Law in Postcolonial Societies: Straddling the LocalGlobal Institutional Spectrum," The Colorado Journal of International Law and Policy 11, no. 1
Dorothy L. Hodgson, "Introduction: Comparative Perspectives on the Indigenous Rights
Movement in Africa and the Americas " American Anthropologist 104, no. 4 (2002).
Dictionary of Anthropology, s.v. "Culture."
Oxford Dictionaries, s.v. "Culture."


Through language, songs, and ceremonies, tribal people continue
to honor sacred springs, ancestral burial places, and other places
where ancestral communities remain alive. Particular landscapes
and sacred sites are the “holy lands” of Native communities.39
This is important when discussing environmental conservation in relation to
tribes, because the spiritual base of a Native American land ethos inspires
moderation in resource utilization.40 It also includes a responsibility to practice
conservation in the present so that resources are available for future generations.41
One example of cultural harm that demonstrates the interrelatedness of
elements, such as language and land, was the federal government’s practice of
forcing Native children to attend boarding schools far from their reservations.
The children were prohibited from speaking their language and practicing their
religion.42 This practice of “assimilation” occurred from the 1880s through the
1920s in the contiguous United States.43 This practice, however, was continued in
Alaska long after the demise of the federal government’s assimilation policy, well
into the 1970s. Not only were Alaska Native children sent to boarding schools
within Alaska far from their families; they were also sent to BIA-run schools in
the lower 48 states.44 This forced removal deprived generations of practicing
their religion, learning and speaking their language, and nurturing a relationship


Wood and Welker, "Tribes as Trustees Again," 381.
Ibid., 377.
Ibid., 385-86.(See also the oft-quoted Iroquois Maxim “In our every deliberation, we must
consider the impact of our decisions on the next seven generations.” (circa 1700-1800))
Tsosie, "Indigenous People and Environmental Justice," 1650.
Carolyn J. Marr, "Assimilation through Education: Indian Boarding Schools in the Pacific
Northwest", University of Washington Digital Collections
http://content.lib.washington.edu/aipnw/marr.html (accessed August 26 2013).
Jim LaBelle and Stacy L. Smith, "Boarding School: Historical Trauma among AlaskaíS Native
People," Voices of Our Elders (2006). http://elders.uaa.alaska.edu/reports/yr2_2boardingschool.pdf (accessed August 26, 2013).


with the land. Although such blatant cultural harm has ceased in the United
States, a more subversive harm continues with the exclusion of indigenous
peoples from lands that were formally part of tribal lands but now lie outside
reservation boundaries or when a sacred site is destroyed or contaminated.45
There have been cases litigated as claims for “religious freedom.”46 In
Lyng v. NW Cemetery Protective Ass'n, mentioned below, the Supreme Court
presumed that the government’s development of a road through a Native
American sacred site would “virtually destroy” the religious traditions of the
affected indigenous peoples, but the Court explained that road construction on
public lands was not the sort of forcible government action that prompts First
Amendment scrutiny.47 The indigenous peoples’ beliefs were unfettered, and that
was of primary concern, according to the Court.48 The Court found no trust
responsibility on the part of the U.S. government that would dictate protection of
sacred sites.
This disconnect also occurs in cases where indigenous peoples bring
claims for environmental damage that have also caused cultural harm. The Exxon
Valdez oil spill in Alaska serves as a good example. In 1989, the oil tanker,
“Exxon Valdez,” ran aground off the coast of Alaska spilling an estimated 11


Tsosie, "Indigenous People and Environmental Justice," 1650.
See, e.g., Lyng v. NW. Cemetery Protective Ass'n, 485 U.S. 439 (1988) (refusing to apply Free
Exercise clause of U.S. Constitution or the American Indian Religious Freedom Act to protect
Native sacred site from development by U.S. Forest Service on federal land); Badoni v.
Higginson, 638 F.2d 172 (10th Cir. 1980) (similar result with attempt to protect Navajo sacred
sites within the Rainbow Bridge National Monument).
Tsosie, "Indigenous People and Environmental Justice," 1650 (citing Lyng, 485 U.S. at 451, 457
(internal citations omitted)).


million gallons of oil and affecting over 1,000 miles of coastline.49


Natives attempted to recoup damages for the injury to their lands and natural
resources and also for the cultural harm that they experienced from the failure to
be able to engage in their traditional customs.50 Ultimately, the Ninth Circuit
Court of Appeals affirmed the district court’s holding that cultural harm is an
insufficient ground for compensation.51 The Court determined that the impacts
from the oil spill on the subsistence lifestyles of the affected Alaska Natives were
not markedly divergent from the effects on other rural Alaskans.52 According to
the district court, “one’s culture—a person’s way of life—is deeply embedded in
the mind and heart. Even catastrophic cultural impacts cannot change what is in
the mind or in the heart unless we lose the will to pursue a given way of life.”53
In sum, the court found that the sacred site itself wasn’t important.

It was

people’s beliefs that were important rather than any connection to the land that
might support those beliefs.54 Within Indian Country (e.g., reservations), tribal
sovereignty has real value in the management of the environment.55


demonstrated with the above two examples, outside of Indian Country tribal
concerns are often mutated into the same as those of other “citizens.”


Alaska Oil Spill Commission, "Spill: The Wreck of the Exxon Valdez"
http://www.evostc.state.ak.us/facts/details.cfm (accessed August 23 2013).
Alaska Native Class v. Exxon Corp., 104 F.3d 1196 (9th Cir. 1997).
Ibid., at 1198.
In re Exxon Valdez, No. A89-0095-CV, 1994 WL 182856, at *4 (D. Alaska Mar. 23, 1994),
aff'd sub nom Alaska Native Class, 104 F.3d 1196 (Alaska Ct. App. 1997).
The court attempted to explain its decision in many ways: (1) Alaska Natives have already been
impacted by the incursion of Western cultural and this is no different; (2) rural users won’t
understand if we recognize Alaska Natives over them; (3) the court had already awarded over a
billion dollars in criminal sanctions; (4) this was basically a loss of enjoyment of life claim, which
would require that bodily harm be shown. Ibid.


Unfortunately, most of Alaska is defined as “outside of Indian Country,” thus
cultural harm is too often the norm.

International Indigenous Rights

During the first United Nations Decade for Indigenous Peoples, strides were
made towards asserting indigenous rights. This is demonstrated in various forums
and documents.

Additionally, according to Svein Jentoft, professor at the

Norwegian College of Fishery Science, University of Tromso, a significant
achievement of the Decade occurred during the United Nations (UN) World
Summit on Sustainable Development.56 For the first time in UN history, the
phrase “indigenous peoples” was used unqualifiedly in an official document.57
The United Nations Conference on Environment and Development (UNCED)
initiatives clearly recognized the role of indigenous peoples.

Five major

documents were signed at UNCED: Agenda 21, a set of forest principles, a
Biodiversity Convention, the Rio Declaration, and a convention on climate
The Agenda 21 text on Indigenous People and Their Communities, paragraph
26.1, recognizes the “holistic tradition of scientific knowledge of their lands,
natural resources and environment” of indigenous groups who represent a


Svein Jentoft, Indigenous Peoples: Resource Management and Global Rights (The Netherlands:
Eburon Academic Publishers, 2004).
“We reaffirm the vital role of indigenous peoples in sustainable development.” World Summit
on Sustainable Development. Johannesburg Declaration on Sustainable Development and Plan of
Implementation of the World Summit on Sustainable Development: The Final Text of Agreements
Negotiated by Governments at the World Summit on Sustainable Development, 26 August-4
September 2002, Johannesburg, South Africa. (New York: United Nations Department of Public
Information), Sept. 4, 2002, http://www.un-documents.net/jburgdec.htm.
See more at: http://www.culturalsurvival.org/publications/cultural-survivalquarterly/brazil/indigenous-peoples-after-unced#sthash.WewkQF8b.dpuf.


significant percentage of the global population. The text also refers to economic,
social and historical factors that have hindered indigenous peoples’ “ability to
participate fully in sustainable development practices on their lands” and
advocates that they “shall enjoy the full measure of human rights and fundamental
freedoms without hindrance of discrimination.”59
Principle 22 of the Rio Declaration on Environment and Development
recognizes that:
Indigenous Peoples and their communities… have a vital role in
environmental management and development because of their
knowledge and traditional practices. States should recognize and duly
support their identity, culture and interests and enable their effective
participation in achieving their sustainable development.60
These documents mention traditional knowledge and ways of knowing
and sense of place inherent to all indigenous peoples. Principle 22 goes beyond
acknowledgement and suggests that individual countries should not only
recognize indigenous peoples and the value of their ways of knowing, but also
support their inherent sovereignty.

The agenda for sustainable development

adopted at the Rio Summit promotes complete cooperation and recognition of







management practices, resolving their land claims, and safeguarding them from


United Nations Conference on Environment and Development. Agenda 21, Rio Declaration,
Forest Principles. (New York: United Nations), June 13, 1992,
Located at


projects that would impair the environment of their lands or that would be
regarded as incongruous under indigenous cultural norms.61
The ILO Convention 169 Concerning Indigenous and Tribal Peoples in
Independent Countries provides a more significant articulation of the rights of
indigenous peoples.
The peoples concerned shall have the right to decide their own priorities
for the process of development as it affects their lives, beliefs,
institutions and spiritual well-being and the lands they occupy or
otherwise use, and to exercise control, to the extent possible, over their
own economic, social and cultural development. In addition, they shall
participate in the formulation, implementation and evaluation of
programs for national and regional development which may affect them
ILO Convention 169 stretches further than Principle 22’s suggestions and
states that indigenous peoples have “rights.”63 Those “rights” include having
control over their own development in whatever facet that may apply. A “right”
as defined by Black’s Law Dictionary is “[s]omething that is due to a person by
just claim, legal guarantee, or moral principle…a power, privilege, or immunity
secured to a person by law.”64 The Working Group on Indigenous Populations,

Report of the United Nations Conference on Env't & Dev., Rio de Janeiro, June 3-14, 1992,
U.N. Doc. A/CONF.151/26/Rev. 1 (1993): 387; Tsosie, "Indigenous People and Environmental
Justice," 1667.
International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27
June 1989, C169, http://www.refworld.org/docid/3ddb6d514.html.
Some have argued that “rights” is a word that is not culturally appropriate in the context of
indigenous peoples. According to Rebecca Tsosie, “Rights are, after all, a distinctively Western
concept and may not really reflect the interests of indigenous peoples at all. Moreover, some might
question whether forcing indigenous peoples to phrase their concerns as ‘rights’ may actually
perpetuate a form of forcible assimilation or colonization.” Tsosie, "Indigenous People and
Environmental Justice," 1652-53. She goes on to say, ”Although these points are valid, insofar as
rights are used to protect human values, including the basic needs and interests at the heart of a
group’s distinctive cultural or political identity, they are useful and allow indigenous peoples to
participate equally in the national and international discourse about human rights.” Ibid.
Black's Law Dictionary 7th ed.


established by the UN in 1982, worked for more than twenty years drafting the
Declaration on the Rights of Indigenous Peoples.65 With an overwhelming
majority of 143 votes in favor, four negative votes cast (Canada, Australia, New
Zealand, and United States) and 11 abstentions, the United Nations General
Assembly (GA) adopted the Declaration on the Rights of Indigenous Peoples on
September 13, 2007. The Declaration recognizes:
the urgent need to respect and promote the inherent rights and
characteristics of indigenous peoples, which derive from their political,
economic and social structures and their cultures, spiritual traditions,
histories and philosophies, especially their rights to their lands, territories
and resources.66
These powerful statements, though, have limited authority. They only go
as far as “the extent and in the structure and format that the international
community of States has recognized them.”67 Despite the labor and time that goes
into formulating and ratifying international conventions, the laws and
constitutions of individual nation-states, virtually whenever they come into
conflict with sovereign intranational rights, have legal precedence.68
The ILO Convention has only been ratified by twenty states69 taking over
two decades for the ratification of this non-binding Declaration on the Rights of


Hodgson, "Comparative Perspectives."
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples :
resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295,
Siegfried Wiessner, "United Nations Declaration on the Rights of Indigenous Peoples"
http://untreaty.un.org/cod/avl/ha/ga_61-295/ga_61-295.html (accessed August 23 2013).
Hodgson, "Comparative Perspectives."
Argentina (2000); the Plurinational State of Bolivia (1991); Brazil (2002); Chile (2008);
Columbia (1991); Costa Rica (1993); Denmark (1996); Dominica (2002); Ecuador (1998); Fiji
(1998); Guatemala (1996); Honduras (1995); Mexico (1990); Nepal (2007); Netherlands (1998);
Norway (1990); Paraguay (1993); Peru (1994); Spain (2007); Bolivarian Peninsula of Venezuela
(2002) (ILOLEX: Database of International Labour Standards, available at


Indigenous Peoples due to various governments’ concerns that it would motivate
indigenous groups to secede.70 While these documents may have little power
with states, they do presage the growing national and perhaps international power
of the indigenous rights movement.

They also cement into the global

consciousness the connection between indigenous peoples, their lands, and

An international indigenous movement has begun.


indigenous groups have for the most part come together recognizing each other’s
claims for certain rights and have moved from what previously was internal state
bickering71 to global assertions for representation, recognition, resources and
The Committee on the Elimination of Racial Discrimination (CERD), for
example, has largely affirmed the land rights of indigenous peoples.73 The voices
of the San in Botswana, for one – dispossessed from their aboriginal homeland
and their traditional lifeways for decades – are now being heard.74 In 2002,
CERD released a report condemning Botswana’s treatment of the San as racist.75
The report criticized both Botswana’s eviction of the San from their ancestral land


Richardson, "Environmental Law in Postcolonial Societies."
Unfortunately, some internal dissent continues as illustrated by the disputes generated around
the BIA’s draft rules overhauling the requirements for federal recognition of tribes. Recognized
tribes fight against the recognition of previously-unrecognized tribes because of limited resources.
Surrounding non-Native community members fight against recognition because they don’t
understand how peoples who have played in the “local little league and joined local churches
should have the same standing as others.” (See Michelle Melia, "U.S. Overhauls Process for
Recognizing Indian Tribes," Time (2013). http://nation.time.com/2013/08/25/u-s-overhaulsprocess-for-recognizing-indian-tribes/ (accessed August 30, 2013).)
Hodgson, "Comparative Perspectives."
Prosper Nobirabo Musafiri, The Dispossession of Indigenous Land Rights in the Drc: A History
and Future Prospects (England: Forest Peoples Programme, 2009).
Sylvain, "Land, Water and Truth: San Identity and Global Indigenism."
United Nations, Report of the Committee on the Elimination of Racial Discrimination2002.
Supplement No. 18 (A/57/18), 53-6.


in the Central Kalahari Game Reserve, and government officials’ prejudice
towards all Bushman tribes. It has also established the direct connections that
exist for indigenous peoples between their lands, culture and economic practices.
For example in 2006, CERD asked the Government of Botswana to: “pay
particular attention to the close cultural ties that bind the San/Basarwa to their
ancestral land; [and] ... protect the economic activities of the San/Basarwa that are
an essential element of their culture, such as hunting and gathering practices,
whether conducted by traditional or modern means (…)” Then, in 2006, after the
longest court battle in Botswana’s history, the San won a major case in
Botswana’s High Court, allowing them to return to their homelands and continue
their hunter-gatherer lifestyle.76 There have been setbacks. For instance, while
the San won the 2006 court case, Botswana’s interpretation of the ruling is
extremely narrow. The government continues to read the ruling as only allowing
the 189 actual applicants and their spouses and minor children to return to the
Central Kalahari Game Reserve.77 The U.S. State Department’s 2012 Human
Rights Report on Botswana suggests that Botswana has continually neglected to
implement its anti-discrimination policies in regard to the San: “…the San
remained economically and politically marginalized and generally did not have
access to their traditional land. The San continued to be geographically isolated,
had limited access to education, lacked adequate political representation, and were


David Beresford, "Bushmen Win Rights over Ancestral Lands," The Guardian, December 13
United States' State Department, Country Reports on Human Rights Practices for 2012:
Botswana 2013


not fully aware of their civil rights.”78 Botswana’s official policy is that there are
no “indigenous peoples” within its borders. All are “Batswana.”79 This lack of
recognition of indigenousness has in many ways nullified the favorable court
decisions. Many of the San have not been able to return to their lands, though
international pressure continues for recognition of the San’s indigenous rights.80
Tsosie argues that for indigenous peoples to make real strides toward
environmental self-determination they must have “equal right to selfdetermination as ‘peoples.’”81 She argues that indigenous peoples should utilize
international human rights law to advance their environmental self-determination
efforts.82 There are hurdles to such an approach. For purposes of the International
Covenant on Civil and Political Rights,83 indigenous peoples have been
recognized as holders of “minority rights” under Article 2784 of the Covenant
instead of “peoples” under Article 1.85 According to Tsosie, this is an important

Laura Clarke, "The Diversity of Culture: Recognising the Rights of Southern Africa’s San
Peoples", Consultancy Africa Intelligence
http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=1062:thediversity-of-culture-recognising-the-rights-of-southern-africas-san-peoples-&catid=91:rights-infocus&Itemid=296 (accessed August 23 2013).
Survival International is an NGO that advocates for tribal peoples through the recognition of the
UN Declaration on the Rights of Indigenous Peoples, and the Indigenous & Tribal Peoples
Convention (ILO 169). They have worked for years to raise awareness about the plight of the San.
See http://www.survivalinternational.org/tribes/bushmen.
Tsosie, "Indigenous People and Environmental Justice," 1664.
UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, vol. 999, p. 171, available at:
http://www.refworld.org/docid/3ae6b3aa0.html [accessed 5 August 2013]
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their group,
to enjoy their own culture, to profess and practise their own religion, or to use their own
language.” Ibid.
“1. All peoples have the right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic co-operation, based upon the


difference.86 Under Article 27, indigenous peoples as ethnic, religious, and
linguistic minorities may only have a right to protest state policies that would
prohibit them from enjoying their culture, practicing their religion, or speaking
their language. They do not, however, have the right to freely seek their own
economic, cultural and political development as guaranteed by Article 1.
Notably, Article 3 of the Declaration on the Rights of Indigenous Peoples uses
identical wording describing self-determination as Article 1 of the Covenant on
Civil and Political Rights.87
Tsosie asserts that “such a right should include the right to survive as a
distinct people and the right to restrain national governments from undertaking
policies that would jeopardize their continued physical or cultural survival.”88
While Tsosie urges that the Declaration provides a jumping off point for
indigenous peoples’ right of environmental self-determination, it is important to
keep in mind that countries with the highest concentration of indigenous peoples
did not adopt it and the document is non-binding to the parties that did sign. In
fact, the document itself proclaims that it is only “a standard of achievement to be
pursued in a spirit of partnership and mutual respect.”89

The mirroring of

language, however, in Article 3 of the Declaration on the Rights of Indigenous
principle of mutual benefit, and international law. In no case may a people be deprived of its own
means of subsistence.” Ibid; see also Tsosie, "Indigenous People and Environmental Justice."
Ibid., 1664.
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples:
resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at:
http://www.refworld.org/docid/471355a82.html [accessed 5 August 2013] (“Indigenous peoples
have the right to self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.”)
Tsosie, "Indigenous People and Environmental Justice," 1665.
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples :
resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at:
http://www.refworld.org/docid/471355a82.html [accessed 5 August 2013].


Peoples with the language in Article 1 of the Covenant on Civil and Political
Rights has the potential of highlighting the problem with indigenous peoples
being recognized as a holder of “minority rights” under Article 27 of the

This emphasis could urge movement toward a more universal

acceptance of indigenous peoples’ right of environmental self-determination.


As discussed earlier, international conventions are one piece of a multifaceted tool to enact change on a global stage. However, it is the laws and
regulations of individual nation-states that hold precedence.

So, where do

indigenous peoples stand in the eyes of the United States federal government?
This is a complicated question. Federal Indian law is something that is constantly
In this section, an overview of the United States fiduciary responsibility to
Native Americans will be presented. Court cases abound and so do regulations.
What impact do they have on Indian Country? The United States has plenty of
indigenous work groups, as well. What have they accomplished?

Indian Law in the United States

“Law is a social institution and an instrument for social change and
social continuity. It shapes and forms social, political, and
economic relationships and allocates the consequences of
technological development. Law plays a central role in facilitating
the process that began in other social institutions and within other
academic disciplines…[L]aw has an important social function,


including dispute resolution, shaping the choice of conduct and
teaching values, and building social consensus…”90

The U.S. Constitution contains a lone phrase – six words – mentioning the
Federal-tribal relationship.91 This phrase grants Congress the power to “regulate
Commerce…with the Indian Tribes.” From this phrase and the international rule
of discovery, which states that in the New World the first discovering nation has
dominion over the land and occupants residing on that land discovered, Congress
and the Supreme Court formulated their vision of the relationship between the
indigenous peoples of this land and those who “discovered” it.92 Above all, the
principle rule of the Federal-Native relationship is the acknowledgement of
indigenous peoples’ inherent sovereignty.93 This is the basis of Federal Indian
Law. This is the condition that allows for specific Native institutions and rights.
The historical political status of Native Americans permits activities such as
permitting a hiring preference for Native Americans,94 which would otherwise be
impermissible, if they were racially defined.
To understand the quest for Indian environmental self-determination, a
few court cases along with environmental statutes and regulations must be
explained. Some concepts of Federal Indian law to be covered from the outset


Robin Morris Collin and Robert William Collin, "Where Did All the Blue Skies Go?
Sustainability and Equity: The New Paradigm," Journal of Environmental Law and Litigation 9,
no. 2 (1994): 453.
U.S. Constitution, art. 1, sec. 8, cl. 3.
David S. Case and David A. Voluck, Alaska Natives and American Laws 2nd ed. (University of
Alaska Press, 2002).
See Morton v. Mancari, 417 U.S. 535, 553-54 (1974) (“this preference does not constitute
‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference. Rather, it is an employment
criterion reasonably designed to further the cause of Indian self-government.”)


include “Indian Country;” “aboriginal title;” plenary power; and fiduciary
responsibility. Indian Country is a term that is defined under 18 U.S.C.A. § 1151
(a) all land within the limits of any Indian reservation under the

jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the

United States whether within the original or subsequently
acquired territory thereof, and whether within or without
the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been

extinguished, including rights-of-way running through the
Black’s Law Dictionary provides a definition that is simpler, though less helpful.
Indian Country is defined as a “part of public domain set apart for use, occupancy
and protection of Indian peoples.”95 The presence or absence of Indian Country is
a very contentious issue because it is often used by governmental entities to
define a tribe’s jurisdictional authority.
“Aboriginal title” is referred to as “Indian title” or “Indian right of
occupancy” and is defined as group or tribal title.96 This affords a tribe the right
to be the sole occupants of a land but precludes them from being able to sell the
land to anyone but the federal government. This was determined in a case that
came before the Supreme Court, Johnson v. M’Intosh.97

Chief Justice John

Marshall, the “first American jurist to define the essential principles of the
aboriginal title doctrine,” determined that the United States held dominion over all


Black's Law Dictionary .
Case and Voluck, 36.
M’Intosh, 21 U.S. 543, 595 (1823).


land within its domain including that occupied by Indian tribes.98 In a case where
both the U.S. government and a tribe sold a particular parcel of land, Chief Justice
Marshall decided that the Indians had no right to sell land unless they sold it to the
federal government. The federal government, however, had the power to dispose
of land, occupied by Indians or not, in any manner they wished.
Chief Justice Marshall fleshed out more of the intricacies of aboriginal
title in Worcester v. Georgia,99 in which he concluded that states held no authority
on tribal lands. The federal government alone had the right to interfere with
aboriginal possession.

“Unless the United States or the Natives themselves

extinguish title to aboriginal lands, state governments (and private persons) deal
with such lands without legal authority and under the peril of becoming
These cases illustrate the foundation of the government-to-government
relationship between the federal government and tribes.

It is an unequal

relationship as shown by the fact that the federal government can dispense of
property as they wish but indigenous peoples cannot. It is, nevertheless, an
acknowledgement of inherent tribal sovereignty, which sets the relationship
between Native Americans and the federal government apart from other

Chief Justice Marshall in Cherokee Nation v. Georgia,102

described this relationship as unlike any other but stated that it resembled the
relationship between a guardian and a ward. This description depicts “tribes” as

Case and Voluck, 36.
Worcester v. Georgia, 31 U.S. 515 (1830).
Case and Voluck, 38.
Ibid., 19.
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).


weaker nations needing the protective umbrella of a stronger nation, the United
States. The federal government then has a duty to protect Indian tribes from
outside malevolent interests. This, according to Case, is the source of federal
plenary power.103
Plenary power is defined as “authority and power as broad as is required
in a given case.”104 Case defines plenary power more specifically as Congress
having full power over Indian affairs.105 Congress, with its infinite power (if not
always wisdom), has exercised its plenary powers to extinguish aboriginal rights
for specific tribes and to pass such laws as Public Law 280, which limits tribal
jurisdiction in certain states.

The U.S. Supreme Court, however, can hold

Congress in check. The Supreme Court has issued opinions in several cases
holding that the federal government has a responsibility to treat indigenous
peoples fairly or with a fiduciary responsibility.
“Fiduciary” is defined in Black’s Law Dictionary as “a person having
duty, created by his undertaking, to act primarily for another’s benefit in matters
connected with such undertaking. As an adjective it means of the nature of a
trust; having the characteristics of a trust; analogous to a trust; relating to or
founded upon a trust or confidence.”106 Some academics opine that while the
federal fiduciary responsibility is partially founded on the federal government’s
duty to hold lands and other resources in trust for Native American tribes, the


Case and Voluck, 23.
Black's Law Dictionary .
Case and Voluck, 2.
Black's Law Dictionary .


fundamental intention is to safeguard tribal self-governance.107

Recent court

cases reflect the evolution and reality of the judiciary’s interpretation of this trust
Williams v. Lee108 has been called the first case in the modern era of U.S.
Indian law.109 The U.S. Supreme Court held that tribal courts had exclusive
jurisdiction over civil disputes arising in Indian Country involving tribal members
as defendants. In Central Machinery Co. v. Arizona State Tax Commission,110 the
U.S. Supreme Court held that the State of Arizona had no authority to impose a
tax on a corporation’s sale to a tribe. The holding affirmed that federal Indian law
preempts a state’s imposition of taxes on business activities in Indian Country.
These cases are important to demonstrate the U.S. Supreme Court’s recognition of
tribal sovereignty in the modern era, reaffirming a hundred years of jurisprudence.
In United States v. White Mountain Apache Tribe,111 the court ruled 5-4 in
favor of the White Mountain Apache Tribe, stating that the U.S. government did
have a fiduciary responsibility to maintain a building held in trust for the Tribe.
This case, however, was the beginning of a divergence in the Supreme Court’s
interpretation of Indian law.

The crux of the issue was that the fiduciary

responsibility owed by the U.S. government was only upheld due to explicit
acknowledgement of it in a 1960 act instead of upholding it under the basic tenets
of federal Indian law. While some, such as Tracy Labin, Director of the Tribal

Collin and Collin, "Where Did All the Blue Skies Go? Sustainability and Equity: The New
Paradigm," 487.
Williams v. Lee, 358 U.S. 217 (1959).
Matthew L.M. Fletcher, "The Supreme Court and the Rule of Law: Case Studies in Indian
Law," The Federal Lawyer 55, no. 3 (2008): 28.
Central Machinery Co., 448 U.S. 160 (1980).
United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003).


Supreme Court Project and the Native American Rights Fund in Washington, felt
that the White Mountain case was a victory for Tribes in asserting fiduciary
responsibility, others were not so optimistic.112
It became more apparent that the court was attempting to limit the federal
government’s trust responsibility in United States v. Navajo Nation.113 In 2003,
the Supreme Court rejected the Navajo Nation’s claim against the United States
under the Indian Tucker Act,114 for breach of fiduciary responsibility for not
expeditiously authorizing a royalty rate increase under a coal lease to which the
tribe was a party. The Indian Tucker Act waives the U.S. government’s sovereign
immunity in certain circumstances, giving the Court of Federal Claims
jurisdiction to hear claims against the United States by any tribe. The Supreme
Court held in United States v. Navajo Nation that the Indian Tucker Act does not
create substantive rights; it simply waives the government’s sovereign immunity
from lawsuits. The Court further stated that, without a statutory basis for the
tribe’s fiduciary duty claim against the United States, its claim must fail. The
case was remanded to the Court of Federal Claims, where the tribe attempted to
use different federal statutes to support its claim. On April 6, 2009, the Supreme
Court again rejected the tribe’s claim, holding that neither the Navajo-Hopi
Rehabilitation Act of 1950115 nor the Surface Mining Control and Reclamation


E.S. Dempsey, "Finding Meaning in the Decisions of the U.S. Supreme Court," Indian Country
Today, March 17 2003.
United States v. Navajo Nation, 537 U.S. 488 (2003).
Indian Tucker Act, U.S. Code. Vol. 28, sec. 1505 (1992), "confers a like waiver for Indian tribal
claims that “otherwise would be cognizable in the Court of Federal Claims if the claimant were
not an Indian tribe.'” White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quoting § 1505).
Navajo-Hopi Rehabilitation Act of 1950, U.S. Code, vol. 25, secs. 631–640c-3 (1950).


Act of 1977116 could be the foundation for a claim against the United States.
Additionally, the Court rejected the tribe’s assertion that the government’s
“comprehensive control” over coal on Indian lands creates a common law
fiduciary duty in favor of tribes. The Court emphasized that the Indian Tucker Act
allows only claims arising under “the Constitution, laws or treaties of the United
States, or Executive orders of the President.” Only if a federal statute creates a
fiduciary duty can a tribe rely on it for a claim under the Indian Tucker Act.
According to the Court, common law claims must then necessarily fail. This was
a stark illustration of how far the Supreme Court had moved from the common
law understanding of tribal trust responsibility and its own precedent.

Federal Trust Responsibility in Action.

The courts may be attempting to limit the federal government’s
responsibility to tribes but, as it stands, federal agencies continue to acknowledge
the responsibility. For example, the United States Fish and Wildlife Service has a
Native American policy, developed in 1994 and still touted today.117 It explicitly
recognizes tribal sovereignty and “favors empowering Native American
governments.”118 Likewise, the Environmental Protection Agency (EPA) has an
American Indian Environmental Office, which “leads EPA’s efforts to protect
human health and the environment of federally recognized Tribes by supporting
implementation of federal environmental laws consistent with the federal trust

Surface Mining Control and Reclamation Act of 1977, U.S. Code, vol. 30, secs. 1201-1328
USFWS, "The Native American Policy of the U.S. Fish and Wildlife Service," ed. U.S. Fish and
Wildlife Service (1994).
Ibid., 3-4. (cf. Ibid., 2. “The Policy does not suggest recognition of tribal authority that does not
currently exist, however, the Service need not wait for judicial recognition of tribal authority over
fish and wildlife when such authority is already supported by law.”)


responsibility, the government-to-government relationship, and EPA’s 1984
Indian Policy.”119
More broadly, though, the federal trust relationship can often be viewed as
a double-edged sword. According to attorney Larry Leventhal, writing for the
Hamline Law Review, “the trust relationship evolved judicially and survived
occasional congressional attempts to terminate the government’s obligations to
Indians. In theory, the trust relationship exists to protect tribes and individual
Indians. However, in practice, the federal trustee has at times not worked in the
best interests of the intended beneficiaries.”120
Despite current attempts to deny federal fiduciary responsibility, Native
American activists and lawyers maintain that the federal government has a trust
obligation to not only federally-recognized tribal governments but also indigenous
peoples121 in the United States.122

While the courts seem to be distancing

themselves from the idea of the common law concept of fiduciary responsibility
and relying on substantive statutory provisions, there are key pieces of legislation
on which tribes can rely.


http://www.epa.gov/tp/aieo/index.htm (accessed August 24 2013).
Larry B. Leventhal, "American Indians-the Trust Responsibility: An Overview," Hamline Law
Review 8, (1985). See Cobell v. Salazar, 573 F.3d 808 (D.C.Cir. 2009) as a literal example of the
federal government mishandling Indian trust accounts – this was a class-action lawsuit brought by
Native American representatives against two departments of the United States government. The
plaintiffs claimed that the U.S. government has incorrectly accounted for the income from Indian
trust assets, which are legally owned by the Department of the Interior, but held in trust for
individual Native Americans (the beneficial owners)).
As individuals and as non-federally recognized tribes.
Jean Gamache, Tribal Coordinator EPA’s Alaska Operations Office, conversation with author,
2002; see also, generally, the Native American Rights Fund at http://www.narf.org.


Public Law 67-85, commonly referred to as the Snyder Act, allows for
Bureau of Indian Affairs (BIA) expenditures as “Congress may from time to time
appropriate, for the benefit, care, and assistance of the Indians throughout the
United States.”123

This may include providing funds for education, health,

welfare, economic development and other human services such as retaining
employees for tribal governance. This is extremely important legislation for all
tribes because it provides for a majority of the funding that runs tribal
governments. And according to Case, it serves as another example of the federal
government’s recognition of the inherent sovereignty of the indigenous nations in
the United States.124
The Indian Reorganization Act of 1934, also known as the “WheelerHoward Act,” is another key piece of legislation.125

This halted the federal

allotment process of Indian lands; gave the Secretary of the Interior authority to
acquire new lands in trust for landless Indians or existing reservations; provided
funds for economic development; permitted indigenous groups to formulate their
own government institutions under federal constitutions; and allowed tribes to
establish federally-chartered businesses or cooperatives. There was debate about
whether this piece of legislation applied to Alaska Natives until the issue was put
to rest by a 1936 amendment that specifically recognized Alaska Native issues.
The Secretary of the Interior at the time, Harold Ickes, supported reservations in
Alaska because they could, “define Alaskan tribes by identifying particular
groups with the land they occupied;” define “geographical limits of jurisdiction so

The Snyder Act of 1921, U.S. Code, vol. 25, sec. 13 (1921).
Case and Voluck.
The Indian Reorganization Act of 1934, U.S. Code, vol. 25, secs. 461-479 (1934).


that Alaska Native communities” could exercise powers of local government; and
enable the U.S. to “fulfill its moral and legal obligations to protect the ‘economic
rights’ of Alaska Natives”126
Six reservations were created in Alaska through the authority of this
amendment.127 In part, reserves were created to protect the subsistence resources
of the tribes.128 One case arose that, despite being a partial victory in the U.S.
Supreme Court, halted the forward motion of creating protected lands for
indigenous peoples in Alaska.

In Hynes v. Grimes Packing Co.,129 the

Department of Interior (DOI) attempted to stop non-natives from fishing on
reservation property (i.e., waters surrounding the Karluk Reserve). This case was
brought by the Kodiak salmon packers who were outraged that prime fishing
grounds would be placed off-limits to anyone but the indigenous peoples
occupying the reserve. The Supreme Court found that the DOI could not create a
permanent reserve and that it had no authority to enforce exclusive Native


Case and Voluck, 84.(citing H.R. Rep. No. 2244, 74c:2s, 4 (1936)).
For a more detailed discussion of reservations in Alaska, see ibid., 65-98. In sum, according to
Case, at 68-69, “Prior to 1936 and the IRA, there were four methods of creating Alaska Native
Treaty reserves:
available until 1871, but none were created in Alaska.
Statutory reserves
only two were created in Alaska; Metlakatla in 1891 and
Klukwan in 1957.
Executive order Indian reserves: before 1919 approximately 150 of these were created in
Public purpose reserves:
five of these were established between 1920 and 1933 by
executive order…”
The IRA reserves were the ones most similar to the reservations in the Lower 48 states. And the
agreements created between the six IRA tribes and the Secretary of Interior were the most
analogous to the treaties negotiated for Native Americans in the lower 48 prior to 1871. Ibid., 92.
Case asserts that the main purpose behind the reservation policy was “ultimate extinguishment
of aboriginal title” but that it also intended to provide a large enough resource base so that Alaska
Natives would be able to continue to support themselves. Ibid., 86.
Hynes v. Grimes Packing Co., 337 U.S. 86 (1949).



This case essentially made the DOI impotent and stymied the

implementation of the Indian Reorganization Act (IRA) in Alaska. DOI was
neither able to create permanent reserves nor could it enforce exclusive fishing
privileges for Alaska Natives.
Public Law 83-280 (1953) and its subsequent amendment, Public Law 85615 (1958),131 provided the state governments of Alaska, Wisconsin, Oregon,
California, Minnesota and Nebraska with partial civil and full criminal
jurisdiction in Indian Country. This limitation in sovereignty impeded tribes from
practicing traditional forms of justice and issuing culturally appropriate modes of
punishment. Some commentators believe that it has also given rise to a lack of
respect from other law enforcement entities and the general public in regard to
tribal laws.132 Many tribal leaders react to this by arguing that tribes need to act
as sovereigns in order to be regarded in that way.133 The next section addresses
environmental laws that have specific application in tribal communities.
The Resource Conservation and Recovery Act (RCRA) was passed in
1976.134 It was intended to promote the protection of health and the environment


The Court found in Hynes, that the IRA of 1936 was important “for the reason that a statute
that authorizes permanent disposition of federal property would be most strictly construed to avoid
inclusion of fisheries by implication. [DOI] argues for a holding that the power granted covers
water as well as land. If that power were broad enough to enable the Secretary to designate
nonrevocable or permanent reservations of all Alaska fishing grounds for the sole benefit of
natives living in villages adjacent to the fisheries, it might place in his hands the power to grant the
natives the right to exclude all other fishermen from the fisheries.” Hynes, at 104-5. The Court did
find that the Department of Interior could temporarily create a reserve. Hynes, at 110.
Act of August 15, 1953, U.S. Code, vol. 18, sec. 1162, vol. 25, secs. 1321-1326, vol. 28, sec.
1360 (1994).
Vanessa J. Jimenez and Soo C. Song, "Concurrent Tribal and State Jurisdiction under Public
Law 280," The American University Law Review 47, (1998).
Tribal Leaders, comments made during proceedings at EPA’s Region 10 Tribal Leaders
Summit, 2002.
Resource Conservation and Recovery Act, U.S. Code, vol. 42, secs. 6901-6992k (1976).


and to conserve valuable material and energy resources by creating a “cradle-tograve program” to track hazardous wastes. It was amended in 1992 to ensure that
federal agencies were subject to the requirements of federal, state, and local solid
and hazardous waste laws in the same manner as any private party. This strong
piece of legislation does not exempt federal facilities as many other pieces of
legislation do. Tribes have been able to use RCRA to clean up facilities that
otherwise may have remained, continuing to contaminate the land, water and air.
The Clean Water Act (CWA)135 is an oft-attacked piece of legislation that
undergoes constant reinterpretations. The original intent of this legislation was to
restore and maintain the chemical, physical, and biological integrity of U.S.
waters. This, however, is not as simple and clear as it may first appear. Recent
Supreme Court rulings have called into question what constitutes protected
wetlands under CWA.136 Under the Rapanos ruling “isolated wetlands” are not

Isolated wetlands, according to the Court, include anything not

connected to a surface body of water such as a river.138 Bogs and potholes would
thus be excluded from protection. The EPA, at a conference in 2002, advised
tribes that they needed to fill the gap for protection of such wetlands with their
own water quality standards and tribal regulations.139 This would be a way of








Clean Water Act, U.S. Code, vol. 33, secs. 1251-1376 (1977).
See Rapanos v. U.S., 547 U.S. 715 (2006) (divided 4-1-4 opinion creating two tests for what is
defined as “waters of the U.S.” – Scalia’s “continuous water connection” test and Kennedy’s
“significant nexus” test; see also, Solid Waste Agency v. U.S. Army Corps, 531 U.S. 159 (2001)
(holding “Migratory Bird Rule” exceeds authority of USACE).
Rapanos, 547 U.S. at 717.
Tribal Leaders, comments made during proceedings at EPA’s Region 10 Tribal Leaders
Summit, 2002.


unprotected by federal jurisdiction. The extent of that authority may be limited
Although tribes may be happy to devise their own water quality standards,
there are many obstacles that require navigating before this can actually happen.
Tribes are required to apply to the EPA for “Treatment as a State” (TAS).140
Statutory requirements for TAS consideration include:141 being a federally
recognized tribe, possessing a governing body, having adequate jurisdiction
(defined by land status), and being able to complete all proposed activities.142
This can be a long and arduous process, possibly calling into question tribal
jurisdiction if on a checkerboard reservation. After the Supreme Court decision in
Alaska v. Native Village of Venetie, discussed below, Alaska Native tribes have
been described as “sovereigns without territorial reach”143 – meaning they have


See Judith V. Royster and Michael C. Blumm, Native American Natural Resources Law: Cases
and Materials (Durham, NC: Carolina Academic Press, 2002), 227-229; 239-240. “The [CWA]
Amendments of 1987 provide that [the Environmental Protection Agency (EPA)] shall treat tribes
as states for most purposes and programs of the Act…[including]: setting water quality standards
for waters within reservations; administering the National Pollutant Discharge Elimination System
permit program; assuming permitting authority for the § 404 program; granting or denying
certification for federally permitted activities that may result in discharges of pollutants into the
waters; and developing management programs for nonpoint source pollution…A tribal
government that assumes responsibility for programs under the [CWA] may exercise its authority
over water resources held by the tribe, by the [US] in trust for the tribe or member, or ‘otherwise
within the borders of an Indian reservation.’…The EPA has stated that it considers ‘trust lands
formally set apart for the use of Indians’ to be reservation lands…The CWA also contains a
provision for federal settlement disputes between states and tribes sharing common bodies of
water. The EPA is required to ‘provide a mechanism for the resolution of any unreasonable
consequences that may arise as a result of differing water quality standards that may be set by
States and Indian tribes located on common bodies of water.’”
See Requirements for Indian Tribes to Administer Water Quality Standards Program, 40 C.F.R.
131.8 (1991-1994).
U.S. E.P.A., "Authorization for Tribes to Administer Water Quality Standards Program,"
Water: State, Tribal, and Territorial Standards (2013).
http://water.epa.gov/scitech/swguidance/standards/wqslibrary/auth.cfm (accessed August 30,
522 U.S. 520, 526 (1998) (finding that lands assigned to Native Villages under the Alaska
Native Claims Settlement Act (ANCSA), 85 Stat. 339, 43 U.S.C. §§ 1601-28, could not constitute
dependent Indian Communities under 28 U.S.C. § 1151, the Indian Country statute).


no land base (i.e., reservation)144 over which to exercise tribal jurisdiction. Land
base is the distinguishing characteristic that allows tribes to apply for TAS. While
any tribe can draw up its own water quality standards, if a tribe lacks reservation
lands, lands that it owns in fee simple, or lands held in trust by the U.S.
government, the water quality standards will hold very little or no legal authority
over anyone who is not a member of the individual tribe.
While Alaskan tribes may not be able to apply for TAS because of lack of
a land-base, the CWA specifically provides that all tribes should be treated similar
to states for purposes of the Act.145 This provision includes providing for grants
to tribes for establishment of nonpoint source programs, development of waste
treatment management plans, and for the construction of sewage treatment

The CWA, specifically, addresses Alaska Native organizations by

No provision of this chapter shall be construed to—
(1) grant, enlarge, or diminish, or in any way affect the scope of
the governmental authority, if any, of any Alaska Native
organization, including any federally-recognized tribe, traditional
Alaska Native council, or Native council organized pursuant to the
Act of June 18, 1934 (48 Stat. 987), over lands or persons in
(2) create or validate any assertion by such organization or any
form of governmental authority over lands or persons in Alaska; or
(3) in any way affect any assertion that Indian country, as defined
in section 1151 of title 18, exists or does not exist in Alaska.147


Metlakatla, the only remaining reservation in Alaska, is the one exception to the general rule.
CWA, U.S. Code, vol. 33, sec. 1377.
Ibid., 1377(g).


Case points out that such provisions are representative of federal legislation
passed in the 1980s. It was typical for legislation to disavow any significance in
relation to the Alaska sovereignty debate.148
The Clean Air Act (CAA)149 suffers from many of the same problems (in
reference to tribes) that plague the Clean Water Act. As one of the nation’s best
pieces of environmental legislation, it was enacted to protect and enhance the
quality of the nation’s air resources in order to protect public health and welfare.
It has suffered many attacks over the years, from the Bush Administration’s Clear
Skies Initiative to more recent congressional challenges to limit its regulation of
greenhouse gasses. Much like the CWA, the CAA permits tribes to be designated
with TAS status.150 Many of the same issues that arise with TAS for CWA come


Case and Voluck, 415.
Clean Air Act, U.S. Code, vol. 42, secs. 7401-7671g (1963).
Royster and Blumm, 227-229; 239-240. “[T]he EPA has interpreted the [CAA] as a delegation
of federal authority to tribes to administer programs with respect to all air resources within the
tribe’s reservation. … The EPA’s approach is based primarily on the language of the CAA, which
authorizes the EPA to grant TAS if ‘the functions to be exercised by the Indian tribe pertain to the
management and protection of air resources within the exterior boundaries of the reservation or
other areas within the tribe’s jurisdiction.’…Because the CAA is a congressional delegation to
tribes, Indian tribes seeking TAS with respect to air resources within the exterior boundaries of
their reservations are not required to demonstrate jurisdiction over reservation lands. However,
tribes seeking TAS with respect to ‘other areas within the tribe’s jurisdiction’ must establish their
jurisdiction over those areas under the same principles that govern tribal authority under the Water

The CAA places with the tribes the exclusive authority to redesignate air quality for attainmentarea reservations. The Act provides that ‘[l]ands within the exterior boundaries of reservations of
federally-recognized Indian tribes may be redesignated only by the appropriate Indian governing
body.’…The 1990 CAA amendments include a [TAS] provision, under which the EPA is charged
with promulgating rules ‘specifying those provisions of this Act for which it is appropriate to treat
Indian tribes as states…[for] the management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribes jurisdiction…’ … The EPA rules
treat tribes as states for virtually all purposes of the act, with limited exceptions such as deadlines
for submittal of various plans and criminal enforcement. … In addition, the CAA now expressly
permits tribes to develop tribal implementation plans (TIPs, equivalent to state implementation
plans) for the implementation, maintenance, and enforcement of reservation air quality standards.
Tribal authority under a TIP will extend to all lands within the reservation, notwithstanding the
issuance of fee patents…In addition, the Act provides for federal resolution of disputes between


into play when applying TAS to CAA. Tribes remain at a distinct disadvantage,
especially those on checkerboard reservations and Alaska Natives.
The Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)151 was passed in 1980 and amended in 1986. CERCLA
provides broad federal authority for critical decisions regarding contaminated
sites including cleanup levels, the remedy or type of cleanup to be used, and the
timeline for cleanup. EPA is the agency charged with carrying out CERCLA.
Section 126 of CERCLA affords the governing body of a tribe essentially the
same treatment as states for many response-related purposes, which include:

notification of releases,

consultation on remedial actions,

access to information, and

roles and responsibilities under the National Contingency Plan (NCP).152
Section 104 permits EPA to enter into cooperative agreements with

eligible tribes to implement or cooperate in Superfund-eligible site response
actions. When EPA is compelled to bring forth a remedial action, CERCLA
states that they must attain all Applicable and Relevant or Appropriate
Requirements (ARARs) of other federal environmental laws, more rigorous state
tribal governments and states where either government objects to redesignation by the other or to a
permit for a new emission source that would cause or contribute to air pollution in excess of that
allowed by the tribal or state government. Either government may request the EPA to enter into
negotiations with the governments involved, and to make recommendations to resolve the dispute.
If the parties do not reach agreement, however, the EPA ‘shall resolve the dispute,’ and the federal
determination then becomes a part of the governments’ air quality plans.”
CERCLA, U.S. Code, vol. 42, secs. 9601-9675 (1980).
Office of Solid Waste and Emergency Response, "Consulting with Indian Tribal Governments
at Superfund Sites: A Beginner's Booklet," ed. United States Environmental Protection Agency


or tribal environmental laws, and state or tribal environmental laws that oversee
the placement of facilities.153

This is one place where the power of tribal

regulations is written in statute. CERCLA was amended in 1986 to provide even
greater participation for tribes in the cleanup process.
Superfund Amendments and Reauthorization Act of 1986 (SARA)154
afforded tribes the opportunity to apply to EPA for help in responding to
contaminant releases into the environment. It also provided the mechanism for
tribes to enter into a Cooperative Agreement with the EPA when they respond to a
contaminated site and specified that tribes should be given the same respect as
states or other federal agency consultation.
The National Environmental Policy Act (NEPA),155 was enacted to
promote measures for the prevention or elimination of damage to the natural
environment and the biosphere.

NEPA requires federal agencies to include

environmental protection in decision-making and prepare Environmental Impact
Statements (EIS) before any major federal actions significantly affecting the
quality of the human environment.

NEPA may require that the natural

environment be taken into consideration when a possibly harmful activity is going
to occur, but it does not require that any action be taken after the EIS and
comment period. Alaskan tribal leaders have spoken bluntly to the U.S. EPA’s
Region 10 Regional Administrator about the efficacy of the EIS process. In a

Office of Emergency and Remedial Response, A.R.A.Rs Q's & A's: General Policy, R.C.R.A.,
C.W.A., S.D.W.A., Post-R.O.D. Information, and Contingent Waivers 1991. Publication 9234.201/FS-A, 3.
Superfund Amendments and Reauthorization Act of 1986, Pub. Law No. 99–499, 100 Stat.
1613 (1986).
NEPA, U.S. Code, vol. 42, secs. 4321-4370f (1969).


tribal meeting in 2003, tribal leaders from Arctic Village and the Alaska InterTribal Council (AITC)156 expressed their frustration with the EIS process. Issues
of primary concern were the short comment period, the lack of knowledge among
tribal staff members to adequately comment, the lack of adequate consultation
between the federal government and tribes, and a lack of authority to stop an
action that is shown in the EIS to negatively impact the environment.157
These are common problems with many of the federal government’s
initiatives. Tribes are frequently sent letters requesting comments on issues such
as permitting or strategic plans. Due to remote locations of many Alaskan Native
villages, the normal 30-day comment period is reduced to a ten- or fifteen-day
response. Moreover, Alaska tribal government environmental staff often lack
formal Western training, resulting in confusion and lack of comprehension in the
process and/or the substance of the reports.158 This, along with the short comment
period, creates an unreasonable burden on tribal government staff. There is also
the feeling that the efforts made to submit comments are unrewarded with any
action from the responsible agencies.159 NEPA, as well as many other federal


A regional intertribal organization formed in 1972 to help disseminate information to tribes
throughout Alaska.
Tribal Leaders and staff, comments made during proceedings at the Alaska Forum on the
Environment, Anchorage, AK, 2003.
Tribal Leaders and staff, comments made during proceedings at the Alaska Forum on the
Environment, Anchorage, AK, 2003.
When the Trans-Alaska Pipeline System (TAPS) permit came up for renewal in 2002, a draft
EIS was prepared and fast-tracked for a quick resolution. Many tribes commented and expressed a
strong desire for the comment period to be extended and that the new permit should be for a
shorter time period, taking into consideration the age of the TAPS. These requests and concerns
were ignored.


regulations, call for process without any real change. This is a great frustration
for tribal government staff and leaders.160
The Endangered Species Act (ESA)161 – one of the most powerful pieces
of environmental legislation, yet one that is often misunderstood and disliked –
was created for the conservation of endangered and threatened species. The key
to protecting these endangered and threatened species is to protect the ecosystems
upon which they depend. Some tribes have been able to use the ESA not only for
the benefit of ecosystems and species preservation but also for the preservation of
their cultural heritage. The Nez Perce Wolf Recovery Project is an example of
such an enterprise.162 In 48 states, the gray wolf is listed as an endangered species
though, during the summer of 2013, the U.S. Fish and Wildlife Service (USFWS)
is considering delisting it.163 The Nez Perce, after much work preparing an EIS
and receiving a congressional appropriation, were awarded concurrent jurisdiction
over wolf management in Idaho. They have been working as co-managers with
the USFWS to reintroduce gray wolves to historic roaming areas in Idaho and to
preserve critical habitat. Jaime Pinkham, a Nez Perce tribal member, stated,
“Restoring the wolf to its rightful place provides an opportunity for the Tribe to
rekindle its cultural ties to the wolf.”164


Tribal Leaders and staff, comments made during proceedings at the Alaska Forum on the
Environment, Anchorage, AK, 2003.
ESA, U.S. Code, vol. 16, secs. 1521-1543 (1973) (The ESA exempts subsistence uses from its
restrictions (sec. 1539(e))).
J. Holyan et al., Wolf Conservation and Management in Idaho: Progress Report 2010 (Lapwai,
Idaho: Nez Perce Tribe Wolf Recovery Project, 2011).
USFWS, "News, Information and Recovery Status Reports," in Gray Wolves in the Northern
Rocky Mountains (USFWS, 2013).
Crystl Murray, "Nez Perce Wolf Recovery Has Friends & Foes"
http://www.buffalogirlsproductions.com/idahonatives/nez/wolf.html (accessed August 26 2013).


As indigenous peoples across the globe work to halt overfishing, damming
of rivers, extinction of wildlife, and contamination of their air, water and land,
they are working for something beyond a clean environment. They are working
to preserve their culture. They are striving to maintain tribal self-determination.
They are fighting for indigenous rights. As Coeur d'Alene tribal leader David
Matheson observes, “[t]ribal sovereignty is more than a legal doctrine, it is our
existence and our continued survival.”165
So when you talk about what tribal sovereignty is, I think it goes
much deeper than language can ever say. Sovereignty is our
existence, it is our survival. Our old folks said that the only way to
express the words, the feelings and the thoughts of the heart from
the deepest, most tender places, where our most powerful feelings
and knowledge are kept, are with song. So our people sang songs,
and they did dances, and they did ceremonies saying that there is
no difference between everyday life and religion, no difference
between religion and ceremony. Our culture is tied up in all the
things that we do.166
Additional Executive Orders and Memos
Executive orders and memos are official documents through which the
President communicates to his appointees and agency heads directives about the
management of the federal government. In many cases, they are not enforceable
and can be rescinded at any time.167 They are often used, as are Supreme Court
appointments, to steer policy for an administration. In the past, executive orders
have been used to create reservations, guide environmental justice issues and


David Matheson, "Tribal Sovereignty: Preserving Our Way of Life," Arizona State Law
Journal 34, no. 3 (2002): 20.
Ibid., 18.
Defend Our Health: The U.S. Military's Environmental Assault on Communities (Military
Toxics Project and Environmental Health Coalition, 2001).


establish policy in regard to tribes. To preserve the message of a particular order,
a new administration will often reaffirm the executive order by signing on to it.
Executive Order 12580,168 issued in 1987 and amended by EO 13016 in
1996,169 delegates to the Department of Defense the authority to determine
CERCLA response actions at DoD facilities, thus permitting DoD to regulate
itself at sites that are not on the National Priorities List (NPL). Under EO 12580,
the EPA cannot take legal action against another federal agency, such as ordering
a cleanup at a military facility, without the approval of the U.S. Attorney General.
CERCLA requires EPA and the military to negotiate a “Federal Facility
Agreement” (FFA) governing cleanup when a site is listed on the NPL. These
pieces of legislation are the ones that will prove most relevant to the question of
what sorts of hazards and impediments the Louden Tribe faces in Galena, Alaska
and what possibilities it has for a remedy. While FFAs generally include penalty
and dispute-resolution provisions, this executive order limits the EPA’s ability to
negotiate aggressive agreements with the services. It is not clear that FFAs are
enforceable in court by citizens or states.170
Executive Order 13175,171 issued in November 2000 and reaffirmed by
President Obama in 2009, allowed then-President Clinton to engage in
“Consultation and Coordination with Indian Tribal Governments.” This is an
often-cited executive order by tribal governments when holding agencies
accountable for policies with tribal implications.

This order lays out broad


Exec. Order No. 12,580, 52 Fed. Reg. 2923 (Jan. 29, 1987).
Exec. Order No. 13,016, 52 Fed. Reg. 45871 (Aug. 30, 1996).
Defend Our Health: The U.S. Military's Environmental Assault on Communities, 12.
Exec. Order No. 13,175, 65 Fed. Reg. 67249 (Nov. 6, 2000).


guidelines that agencies are to consider when drafting policies that may affect
tribes. The first guideline that agencies need to consider when making policy is
that they “shall respect Indian tribal self-government and sovereignty, honor tribal
treaty and other rights, and strive to meet responsibilities that arise from the
unique legal relationship between the Federal Government and Indian tribal
Executive Order 13007,173 issued on the 24th of May, 1996, addresses the
“Protection and Accommodation of Access to ‘Indian Sacred Sites.’” This order
was passed primarily to protect and preserve the religious customs of Native
Americans following the decision in Lyng v. NW Cemetery Protective Ass'n,174
where the U.S. Supreme Court refused to apply the Free Exercise clause of the
U.S. Constitution or the American Indian Religious Freedom Act to protect a
Native sacred site from development by the U.S. Forest Service on federal land.
Each agency that manages federal lands was ordered to “accommodate access to
and ceremonial use of Indian sacred sites...” and to “avoid adversely affecting the
physical integrity of such sacred sites...”175 Despite this order, problems persist,
as the complex situation at Yucca Mountain, Nevada, illustrates.
Yucca Mountain borders the territories of the Western Shoshone and
Southern Paiute peoples.

Yucca Mountain is a sacred site for the Western

Shoshone. Researchers at Catholic University in Washington D.C. performed
experiments that suggested that “heated Yucca Mountain water might dissolve

Exec. Order No. 13,007, 61 Fed. Reg. 26771 (May 24, 1996).
Lyng, 485 U.S. 439 (1988).
Exec. Order No. 13,007, 61 Fed. Reg. 26771 (May 24, 1996).


minerals and form an acidic vapor...that could corrode the metal alloy containers
holding the waste.”176 Seventy-seven thousand tons of radioactive waste had been
approved to be entombed 100 miles northwest of Las Vegas beginning in 2010.
This waste would not only hold the potential to contaminate the surrounding
environment but the very existence of the nuclear waste repository would
desecrate a sacred site and prevent the traditional religious practices of hundreds
of Native Americans.177 The Department of Energy, against the many objections
of the Shoshone and the State of Nevada decided with Congressional approval
that Yucca Mountain would be a nuclear waste repository.178 Executive Orders
13175 and 13007 were ignored for over twenty years until 2009.
President Obama, finally, put the project on hold by defunding the
program in his 2010 budget proposal stating, “[t]his proposal implements the
Administration’s decision to terminate the Yucca Mountain program while
developing disposal alternatives.”179

Senator Harry Reid applauded President

Obama’s decision on his website and agreed with the President’s search for
alternatives: “I was pleased when President Obama and Energy Secretary Steven
Chu … announced the creation of the Blue Ribbon Commission on America’s
Nuclear Future. … On January 26, 2012, the Commission released its final report
on recommendations to alternatives to Yucca Mountain … this report makes

Associated Press, "Researchers Say Nuclear Canisters May Corrode in Yucca Mountain,"
Citizen's Center for Nuclear Non-Proliferation, December 13 2002.
See Update to the Committee on the Elimination of Racial Discrimination on the Early
Warning and Urgent Action Procedure Decision 1(68), para. 10, Aug. 8, 2006; Update to the
Committee on the Elimination of Racial Discrimination on the Early Warning and Urgent Action
Procedure Decision 1(68), para. 7 (Feb. 7, 2007).
See Andrew J. Butcher, "In Search of a Remedy to the Nuclear Storage Conundrum: Western
Shoshone National Council V. United States," Energy Law Journal 28, (2007).
“Termination Yucca Mountain Repository Program,” at


abundantly clear that no state, tribe, or community should be forced to store spent
nuclear fuel or high-level waste without its consent.”180 Unfortunately for the
Shoshone, Senator Reid (alone) and President Obama do not represent all
branches of the federal government. The judicial branch in the form of the D.C.
Circuit Court of Appeals weighed in on August 13, 2013 in In re: Aiken County,
stating “[t]his case raises significant questions about the scope of the Executive’s
authority to disregard federal statutes… It is no overstatement to say that our
constitutional system of separation of powers would be significantly altered if we
were to allow executive and independent agencies to disregard federal law… But
unless and until Congress authoritatively says otherwise or there are no
appropriated funds remaining, the Nuclear Regulatory Commission must
promptly continue with the legally mandated licensing process [at Yucca


While previous sections spoke generally of international indigenous law
and federal Indian law, this section will specifically evaluate the areas of the law
that are unique to Alaska Natives.
An important definition to flesh out prior to discussion of Alaska-Nativespecific laws is that of “subsistence.” “Subsistence” has been defined in various
ways. David S. Case differentiates between two common interpretations of the
term. The first is rooted in Anglo-European usage and “connotes the bare eking

See Harry Reid, "Yucca Mountain", Harry Reid, U.S. Senator for Nevada
http://www.reid.senate.gov/issues/yucca.cfm (accessed September 1 2013).
In re: Aiken County, 2013 WL 4054877 (Aug. 13, 2013).


out of an existence, a marginal and generally miserable way of life.”182


contrast, an Alaska Native understanding of subsistence is quite different:
Subsistence living, a marginal way of life to most, has no such
connotation to the Native people of southeast Alaska. The
relationship between the Native population and the resources of the
land and the sea is so close that an entire culture is
reflected...Traditional law...was passed from generation to
generation, intact, through repetition of legends and observance of
ceremonials which were largely concerned with the use of land,
water, and the resources contained therein. Subsistence living was
not only a way of life, but also a life-enriching process.
Conservation and perpetuation of subsistence resources was part of
that life and was mandated by traditional law and custom.183

Alaska Native Claims Settlement Act184

Typically, the aboriginal title of Indian tribes in the contiguous forty-eight
states was abrogated by treaty with the United States but Congress took a new tact
with Alaska Natives.185 In December 1971, the Alaska Native Claims Settlement
Act (ANCSA) granted Alaskan Natives title to surface and subsurface rights of 44
million acres and compensation of $962.5 million dollars in exchange for the
extinguishment of aboriginal land claims in Alaska.186 All reservations, with the
exception of Metlakatla, were eliminated by section 19 of ANCSA. Although it
does not expressly terminate tribes in Alaska, it is often called assimilation


See David S. Case, "Subsistence and Self-Determination: Can Alaska Natives Have a More
"Effective Voice"?," University of Colorada Law Review 60, (1989): 1009-12.
Annika Ord, "Cultural Importance of Salmon," (2012).
apps.carleton.edu/curricular/posc/assets/Ord_Cultural_Importance_of_Salmon.pdf (accessed
September 1, 2013).(quoting Nelson Frank, a Haida from Southeast Alaska).
Alaska Native Claims Settlement Act, 43 USC §§ 1601-1629 (1994 & Supp. III 1997).
Robert T. Anderson, "Alaska Native Rights, Statehood and Unfinished Business," Tulsa Law
Review 43, (2007): 20.
See H. R. Rep. No. 92-746 (1971) (Conf. Rep.): “[T]he conference committee does not intend
that lands granted to Natives under this Act be considered ‘Indian reservation’ lands for purposes
other than those specified in this Act. The lands granted by this Act are not ‘in trust’ and the
Native villages are not Indian ‘reservations.’”


legislation.187 For example, some say that ANCSA encourages assimilation by
placing Alaska Native lands under Alaska Native regional and village business
corporations that encourage free enterprise, rather than placing the lands under the
direct management of tribal governments.
While ANCSA appears to only apply to land, it impacts everything
relevant to Alaska Natives, albeit indirectly.188 Section 2(b) is often cited to
support termination of the federal relationship, even though that interpretation has
been rejected by the courts. It reads:
The settlement should be accomplished rapidly, with certainty, in
conformity with the real economic and social needs of Natives,
without litigation, with maximum participation by Natives in
decisions affecting their rights and property, without establishing
any permanent racially defined institutions, rights, privileges, or
obligations, without creating a reservation system or lengthy
wardship or trusteeship, and without adding to the categories of
property and institutions enjoying special tax privileges or to the
legislation establishing special relationships between the U.S.
government and the State of Alaska.189
Section 4 of ANCSA defines the settlement solely in terms of the
extinguishment of titles and claims based on aboriginal rights, titles, use, or
occupancy of land and water resources.

The legislation does not include

resolution of human services or questions of Alaska Native governance. The
legislation did, however, extinguish Alaska Native hunting and fishing rights,
implying resolution of Native subsistence questions.190

In 1988, however,


Paul Ongtooguk, "A.N.C.S.A. At 40: Where Are We and Where Are We Going?," Alaska
Dispatch, March 16 2012.
Case, "Subsistence and Self-Determination."
Alaska Native Claims Settlement Act, 43 USC § 1601(b) (1971).
Alaska Native Claims Settlement Act, 43 USC § 1603 (1971) (“Aboriginal title and claim


ANCSA was amended to specify that Alaska Natives were to remain eligible for
federal Native services specific to Native Americans.191
Following the passage of ANCSA, the presence or absence of Indian
Country in Alaska was open to much debate. The presence of Indian Country
would allow Alaskan tribes to perform the basic duties of a government agency –
taxing, zoning, exercising civil and criminal jurisdiction over non-tribal members
(exception stated under P.L. 280), managing fish and game resources, and
regulating land uses. As mentioned previously, this is a contentious issue.
With State of Alaska v. Native Village of Venetie,192 the Supreme Court
ended a long and arduous battle over whether Indian Country existed in Alaska
and in what form. ANCSA revoked Alaska Native reservations but gave village
corporations the option of taking fee title to their former reservation lands. In
1974, the Neets’aii Gwich’in attempted to exercise this option. The United States
conveyed to the Venetie and Arctic Village corporations, as tenants in common,
fee simple title to reservation lands. In 1979 tribal members, acting through the
two village corporations, reconveyed their reservation lands to the Native Village
of Venetie and then the two village corporations dissolved.

Following the

transfer, the State of Alaska entered into a joint venture with a private contractor
to construct a public school in Venetie in 1986. After the contractor and the state
refused the tribe’s taxation demand for conducting business on tribal land, the
tribe brought a collection action in tribal court.

The state then sought an


Alaska Native Claims Settlement Act, 43 USC § 1626(d), as amended (1988).
Native Village of Venetie v. State of Alaska, 101 F.3d 1286 (9th Cir. 1996); rev’d 522 U.S. 520



injunction in federal district court, arguing Venetie lacked authority to tax
nonmembers of the tribe because Venetie’s ANSCA lands were not Indian
Country. The Supreme Court determined that ANCSA, “[a]ttempted to preserve
Indian tribes, but simultaneously attempted to sever them from the land; it
attempted to leave them as sovereign entities for some purposes, but as sovereigns
without territorial reach.”193 The U.S. Supreme Court ultimately decided the issue
and ruled unanimously that ANCSA lands are not Indian Country, regardless of
ownership by a tribal government or an ANCSA corporation.194
This long history of personal, governmental and legal battles set the stage
for Alaska’s next challenge to the U.S. government – implementation of the
federal land withdrawals permitted by section 17(d)(2) of ANCSA.

Subsistence Provisions of the Alaska National Interest Lands
Conservation Act (ANILCA)195

The fight for land use is one of the defining features of Alaskan
culture and jurisprudence. Commercial and subsistence users are
often pitted against each other in a struggle to gain priority over
resources to which access is limited.196
ANILCA was passed in 1980 to effectuate the ANCSA 17(d)(2) land
withdrawals – allowing the Secretary of Interior to withdraw up to 80 million
acres for inclusion in national parks, national forests, national wild and scenic
rivers, and national wildlife refuges. As part of the legislative debate, Alaska

Venetie, 522 U.S. 520, 526 (1998) (quoting Judge Fernandez’ concurrence in the 9th Cir.
Venetie, 522 U.S. 520, 531-34 (1998).
Alaska National Interest Lands Conservation Act, 16 USC §§ 3111-3126 (1980) (commonly
referred to as “Title VIII”).
David G. Shapiro, "Jurisdiction and the Hunt: Subsistence, Regulation, A.N.I.L.C.A., and
Totemoff," Alaska Law Review 14, (1997).









environmentalist support for subsistence provisions.197 Through Title VIII of
ANILCA, Congress gave rural residents a special subsistence preference over
other fish and game users. Specifically, it provides a preference and protections
for subsistence uses of wild, renewable resources by “rural Alaska residents” on
federal lands within Alaska. Interestingly, it did not differentiate between Native
and non-Native, the preference was based on a rural versus urban divide.198
ANILCA also required that, anytime federal funds or public lands were to be
involved in management decisions, potential impacts to subsistence activities
must be considered.
Due to the Alaska State Supreme Court ruling in McDowell v. State199 that
Alaska’s implementation of the ANILCA preference violated provisions of the
State Constitution, the federal government took over the administration of the
subsistence preference on federal public lands (including reserved water
associated with federal parks, refuges, and other conservation unit land

Federal responsibility to manage subsistence fisheries was

subsequently added following the Ninth Circuit decision in Alaska v. Babbitt
(“Katie John I”).201 This decision resulted in federal management of subsistence
fisheries in waters associated with federal lands where the federal government has

Case and Voluck, 288.
Ch. 8, section III.D, ANILCA provides the same fishing and hunting rights to Natives and nonNative rural residents alike.
McDowell, 785 P.2d 1, 12 (Alaska 1989).
McDowell had challenged whether the state could restrict the subsistence opportunity to rural
people because the Alaska Constitution calls for “equal access to fish and wildlife resources by all
Alaskans.” The court found in his favor, which placed the state out of compliance with ANILCA.
Pending the state’s resolution of its constitutional conflict, the federal government, since 1990, has
administered the rural subsistence priority for wildlife resources on all federal lands in Alaska.
Katie John I, 72 F.3d 698 (9th Cir. 1995).


reserved water rights.

According to David Case, this “federal takeover of

subsistence regulation on federal lands and reserved waters has perhaps opened
up opportunities for tribal co-management of these resources.”202 Despite Case’s
hypothesis, this has not yet come to pass, but it is a strategy potentially available
for Alaska Natives.
Administrative Order No. 186 (September 29, 2000)203
In 2000, Governor Tony Knowles, with Administrative Order (AO) No.
186, announced a new state policy recognizing Alaska Native governments and
calling for a government-to-government relationship with all federally-recognized
tribes. This was a departure for the state. Since 1991 and Governor Hickel’s
Administrative Order 125, the state had expressly denied the existence of tribes
and Indian Country in Alaska (i.e., the “one country, one people” philosophy).204
After Venetie and AO 186, Alaska Native tribes continue to be recognized,
but without a land base upon which tribal power over non-tribal members could
be exerted.205 There was a period when it was questioned whether or not Alaska
tribes could even have power over their own members without a land base, but
that question was put to rest with the Alaska Supreme Court’s decision in John v.
In John v. Baker the Alaska Supreme Court addressed the issue of how
broad a reach a tribal government’s power has post-Venetie. The court found:
Today we must decide for the first time a question of significant

Case and Voluck, 33.
Admin. Order No. 186 (Sept. 29, 2000).
Admin. Order No. 125 (July 1, 1991).
Anderson, "Alaska Native Rights and Unfinished Business," 39.
John v. Baker, 982 P.2d 738 (Alaska 1999).


complexity and import: Do Alaska Native villages have inherent,
non-territorial sovereignty allowing them to resolve domestic
disputes between their own members? After examining relevant
federal pronouncements regarding sovereign power, we hold that
Alaska Native tribes, by virtue of their inherent powers as
sovereign nations, do possess that authority. ...
Through the 1993 tribal list and the 1994 Tribe List Act, the
federal government has recognized the historical tribal status of
Alaska Native villages like Northway. In deference to that
determination, we also recognize such villages as sovereign
While John v. Baker, in combination with other court cases, seems to have
settled the question of whether or not tribes exist in Alaska, there still remains the
question of the extent of territorial jurisdiction.208 Professor Robert Anderson of
the University of Washington and Harvard Law School concedes that territorial
jurisdiction of Alaska tribes is limited to Native allotments,209 defined as Indian
Country under 18 U.S.C. § 1151(c), and restricted Native townsite lots,210 similar
to native allotments.

He suggests that tribes could also assert territorial

jurisdiction over any land taken in trust for Alaska Native tribes under the Indian
Reorganization Act, which had previously been in dispute in Hynes v. Grimes


John v. Baker, 982 P.2d 738, 748-49 (Alaska 1999).
Anderson, "Alaska Native Rights and Unfinished Business," 40.
The Alaska Allotment Act provided that Alaska Natives not living on a reservation were
allotted land of the United States to be held in trust by the United States, but for the sole benefit
and use of the Native allottee. The Act authorized the BIA to oversee the program. With this
authorization, the BIA issued Native Allotment Certificates. The Indian Self-Determination Act,
25 U.S.C. 450j, permitted the BIA to contract out with Regional Nonprofit Corporations to
oversee these allotted trust lands. ANCSA, 43 U.S.C. 1603c, extinguished all interests in land
based on federal statute at that time. Therefore, Natives covered by ANCSA, or their descendants,
are not eligible for further allotment. 43 U.S.C. 1617. However, allotments existing in 1971 are
still valid due to express language in ANCSA, 43 USC 1617, recognizing then existing (1971)
allotments but precluding further allotments to ANCSA eligible Natives. Subsequently, ANILCA
amended ANCSA to approve Native allotment applications pending on or before the enactment of
ANCSA. 43 U.S.C. 1634.
In 1926, Congress authorized the Federal townsite trustee to issue restricted deeds in trust to
Alaska Natives living in Federal townsites. In 1948, Congress authorized the townsite trustee to
issue unrestricted deeds upon approval by BIA. In 1976, Congress repealed the Townsite Act.


Recall that, under the Indian Reorganization Act (IRA) of 1934, the
Secretary of the Interior (DOI) may take land into trust for Indian tribes for the
purpose of providing land for Indians, without the consent of the state.212 The
Secretary’s acquisition of land into trust for Indians results in the land becoming
“Indian Country.”213
Due to Hynes, for years the Bureau of Indian Affairs (BIA) excluded
Alaska tribes from the IRA land-into-trust process. The BIA argued that the
Alaska Native Claims Settlement Act of 1971 extinguished Indian Country in
Alaska and any future claims to Indian Country. In Akiachak Native Community
v. Salazar,214 the U.S. District Court for the District of Columbia rejected this
argument on March 31, 2013 and held that the Secretary of the Interior retains
statutory authority to take land into trust for the benefit of Alaska Natives.215
Thus, for the first time since 1949, Alaska Native tribes may have the ability to
petition the Secretary of Interior for land to be placed into trust. Thus, tribes have
the potential to attain the requisite land base to assert tribal jurisdiction over nonNatives. This would not be something easily attained but it is legally possible.216

Hynes, 337 U.S. 86 (1949).
Section 5 of the IRA: Congress has authorized the Secretary “in his discretion” to acquire and
take into trust for Indian tribes “any interest in lands ... within or without existing reservations ...
for the purpose of providing land for Indians.” 25 U.S.C. § 465. The Secretary may take land into
trust for these purposes, without the consent of the State.
18 U.S.C. § 1151.
Akiachak Native Community v. Salazar, 2013 WL 1292172 (March 31, 2013).
An order for additional briefing on the appropriate remedy was issued and that decision is still
See "Sen. Begich Supports Land-into-Trust Decision for Alaska Tribes," Indianz.com, April 23
2013. ("I have long believed that Alaska tribes are no different from tribes in the Lower 48 and
should be able to take part in the land-into-trust application process." Begich said. "This ruling
affirms that the Secretary of the Interior does not have the authority to discriminate against Alaska
tribes." Begich is the only member of Alaska’s Congressional delegation to speak publicly about


As described above, Congress and the courts have not always fulfilled
their trust responsibility while acting in their role as “guardian” to Indian tribes.
On many occasions they have done their best to exterminate tribes and dispose of
trust resources. Congress has abrogated treaties, sold off tribal lands to nonIndians, broken up communal property and distributed it to individual Native
Americans, removed tribes from their own lands placing them on less desirable
pieces of property far from their homeland, and has withdrawn federal recognition
from formerly recognized tribes. Congress has not only meddled in the realm of
tribal lands and natural resources but also in tribal governments’ relationship to
the people who reside on their remaining lands.

From the early 1800s on,

Congress has sought to restrict tribal government authority in relation to civil and
criminal cases within their reservation boundaries. They began by excluding nonIndians from tribal government jurisdiction, expanded it to non-member Indians
and, finally, they have regulated even the jurisdiction that tribes can exercise over
their own membership. These limitations on tribal sovereignty can have a real
impact on the daily lives of tribal members as evidenced in the case study of the
Louden Tribal Council.

the landmark decision. Sen. Lisa Murkowski (R-Alaska), who was re-elected with the help of
Native voters, hasn't said anything, while Rep. Don Young (R-Alaska) has made it clear that he
opposes land-into-trust for Alaska.)


Chapter 3
This is a case study of one Alaskan village. In many ways it is similar to
any other village. In other ways it is completely unique. The story of Galena and
especially the Louden Tribal Council217 is one that presents many lessons. First,
there are the challenges presented by the complex web of relationships and
legislation that even small villages must not only understand but also master.
Secondly, those outside of Alaska or even those Alaskans who are only familiar
with urban Alaska do not easily comprehend issues faced by indigenous peoples
in a remote village, off the road system, in the middle of Alaska (see Figure 3.1
for location of Galena with respect to the major towns of Anchorage and
Fairbanks and the road system). Third, one cannot separate the people from the
land, or the culture. This chapter presents the historic and geographic landscape
that shapes the Louden Tribal Council.

In chapter four, the environmental

challenges faced by the tribe will be addressed.


“Louden Tribal Council” is the federally-recognized name of the tribe and does not refer,
specifically, to the governing council.


Figure 3.1 – Map showing the location of Galena.

The Louden Tribal Council has faced contamination of subsistence
resources and loss of land rights. The central argument of this work is that only
through the assertion of tribal sovereignty will indigenous peoples be able to
protect their land and resources.

Although this thesis focuses on a single

indigenous group in Alaska, aspects of its politics and analysis are applicable to
indigenous peoples across the globe.
The Louden Tribal Council (the federally-recognized name for the Louden
Tribe or LTC) is composed of Koyukon Athabascan Indians. (see Figure 3.2).
And, as alluded to in Chapter 2, it is no stranger to cultural harm caused by loss of
a land base and harm to the environment. As stated before, Alaskan Natives and
their surrounding environment have grown up around each other. To understand
the people, one must understand the place; they are inextricably intertwined. This
is no different for the Athabascans and, particularly for this case study, LTC.

They have developed social, cultural and religious practices alongside the rivers
and sloughs that dominate the landscape. They are a water-dependent people.
With this said, it is often the case that families and social groups are defined by
where they live along what river. This tie to the environment isn’t limited to the
river. It extends to the animals, plants and fish, which are the basis of Athabascan
economy.218 Even today, the traditional life of hunting, trapping, fishing and
gathering is the focus of village economic life, augmented by store-bought goods.
Seasonal traditional subsistence activities still take place. People rely on the
moose and fish to survive the eight long months of winter. For those community
members that are unable to hunt or fish, it is not uncommon to find that their
neighbors, friends and family from Galena or the surrounding villages will pitch
in to ensure that their cache219 is full for this dark interim. Along with subsistence
resources that contribute to the economy, there are arts and crafts. Woodworking,
beading, sewing of cloth and furs, and birch bark basketry are some of the more
common crafts practiced. With such reliance upon the land, it is not surprising
that there is a great concern with activities that may cause ill effects to the moose,
fish, land and water.

The Middle Yukon Valley in Perspective

Alaska, the last frontier, is described as an unspoiled land. The mere name
awakens visions of giant icebergs, crystal blue water, monumental mountain
peaks, polar bears and great herds of caribou roaming a vast, unpopulated

Ryan Madden, On-the-Road Histories: Alaska (Northampton, MA: Interlink Books, 2005), 2122.
A cache in Alaska is a small shed elevated on poles above the reach of animals and used for
storing food, and equipment.


landscape. If people enter the vision, they are quaint, storybook Eskimos outfitted
in fur-trimmed parkas, dwelling in picturesque igloos. Rarely, do people come to
know the real Alaska beyond their cruise ship vacations, Discovery channel
specials or National Geographic articles.

Figure 3.2: Map of Indigenous Peoples and Languages, compiled by Michael E. Kraus
and created by Alaska Native Language Center and Institute for Social and Economic

With 570,640.95221 square miles of landmass, the highest mountain in
North America, active volcanoes, twelve major river systems, three million lakes,
innumerable islands, nineteen distinct Native languages, six language families,
and 229 federally-recognized Tribes, Alaska is more than igloos and polar bears.
Athabaskans occupy the immense Interior of Alaska,222 which is a landscape


Available at http://www.uaf.edu/anla/collections/map/anlmap.png.
U.S. Census Bureau, "State and County Quickfacts: Alaska", U.S. Department of Commerce
http://quickfacts.census.gov/qfd/states/02000.html (accessed August 27 2013).
There are several spellings of Athabaskans, Athapaskans, and Athapasqans.


dominated by boreal forests, the Yukon, Tanana and Kuskokwim Rivers, and
swampy lowlands. The Interior is a place of extremes, made of rolling hills and
low mountains: vast expanses of space with small populations of humans and
animals, temperature ranges from –60F to 80F, three hours of daylight in the
winter and twenty hours of daylight in the summer.223 The area known as the
Koyukuk Flats area covers approximately 4,000 square miles surrounding the
juncture of the Koyukuk and Yukon rivers.224 Boreal forests predominate the
landscape with spruce, aspen, willow and alder.

Within this landscape is a

lowland of swampy wetlands and a complex system of sloughs and lakes
connected to the Koyukuk and Yukon rivers. Despite temperature extremes and a
low average annual precipitation of 12.7 inches, the area supports an amazing
variety of wildlife.

Moose, black and brown bear, snowshoe hare, grouse,

ptarmigan, waterfowl, beaver, muskrat and fish provide food and materials for
clothing and other cultural items.225

The lowland forest and upland tundra

alternate for as far as the eye can see. There are no major fault breaks. The
mountains (several thousand feet above sea level) are made up of monotonous
sequences of gray, Mesozoic, sedimentary rocks that crumble easily.
Since time immemorial, Koyukon Athabascans followed the natural
migration patterns of fish and wild game in the Middle Yukon Valley.226


The amount of daylight, of course, varies with latitude.
Dames & Moore and University of Washington Urban Design and Planning Studio 508,
Galena Comprehensive Plan: 1998 Update (Anchorage, AK: City of Galena, 1999).
James R. Marcotte, Subsistence Harvest of Fish and Wildlife by Residents of Galena, Alaska
1985. Technical Paper No. 155, 128.
Julie E. Sprott and Louden Tribal Council, We Work Together, We Help Each Other: The Story
of Louden Tribal Council’s Self-Governance Process 1993-2000 (Anchorage, AK: University of
Alaska Anchorage, 2000), 7.


Traditionally, family groups moved from camp to camp with the seasons (i.e.,
spring, summer and fall camps corresponding with fishing, trapping, moose
hunting, berry picking, etc.).227 These family groups would trade with coastal
Yup’ik and Inupiaq peoples, meeting at pre-designated areas, trading beaver and
marten furs for items such as seal oil or sea lion skins, which were impossible to
obtain otherwise.228 Contemporary Athabascans still engage in seasonal activities
such as trapping in the spring, fishing in the summer, moose hunting and berry
picking in fall and ice fishing in winter.229
The first contact with non-Natives came in the form of Russian fur
trappers in the 1800s, followed by missionaries, and then the U.S. military.230
Much like in the lower 48 states, non-Natives brought with them disease,
decimating Native populations.231 After the onslaught of newcomers and illness,
surviving Native family members began to move from seasonal camps to more
permanent settlements.232 The outsiders, who had come to exploit the vast fur and
mineral resources, began naming the places that they “discovered.”


“discovery” of the land and the resources, and the naming of places such as Mt.
McKinley (instead of the Native name “Denali”) established a proprietary claim
for the dominant power (i.e., not Alaska Natives). Pat Sweetsir, former Tribal
Administrator for the Louden Tribal Council, related a story that his Grandfather
had told him. Pat’s Grandpa said that when the first white man came an Indian


Sprott and Council, 7.
Ibid., 8.


man asked him to sit down on the log with him and share the beauty of the view.
The white man came and pushed the Indian out of the way and took his seat. A
second white man came and the Indian said the same thing: “Come sit down with
me on this log and enjoy the beauty of the view.” The second man came over and
pushed himself between the Indian and the other white man and nearly knocked
the Indian off the log. Pat’s Grandpa said that if you keep inviting the white man
to sit and share the log with you, he’d soon knock you off.233 This is how the
“dominant power” is often viewed by Alaska Natives.


Galena – A Historical View

Figure 3.3: This large-scale topographic map (one inch to two miles) shows where the
Campion Air Force Station (near the Cave off Cliffs) was relative to Galena and the
Galena Air Force Station. A road connected the two Air Force installations.


Pat Sweetsir, conversation with the author, 2003.


The first activities of the U.S. military along the Yukon River occurred in
1884 in order to “acquire such information of the country traversed and its wild
inhabitants as would be valuable to the military authorities in the future.”234 The
only foreign invasion and occupation of U.S. soil occurred in 1942 when the
Japanese navy bombed Dutch Harbor and occupied the outermost Aleutian
Islands, Atta and Kiska.

This propelled large-scale development throughout

Army and air bases were built.

Anchorage, Fairbanks, Sitka, Fort

Greely, Galena, Whittier and Kodiak were only a few locales that housed some of
the thousands of military personnel shipped to the territory. One of the greatest
feats accomplished during this military build-up was the construction of the
Alaska Highway in 1942. In only eight months and twelve days, 1,520 miles of
road were completed, providing the first overland route from the contiguous
United States to Alaska.235
Termination of the war did not end Alaska’s dependence on the military.
Military spending continued to grow during the 1950s and throughout the Cold
War era, bringing more people and resources to the territory.

Many of the

military personnel who were stationed in Alaska stayed after the end of the war.
Many more who had visited during wartime returned to set up residence. These
people made up the core of supporters pushing for statehood.236 In 1959, Alaska
became the 49th state to join the Union. Many more milestones mark Alaska’s

Lt. Fred Schwatka, Exploring the Great Yukon: An Adventurous Expedition Down the Great
Yukon River, from Its Source in the British North-West Territory, to Its Mouth in the Territory of
Alaska. (Art and Science Publishing Society, 189_), 9.
Claus M. Naske and Herman E. Slotnick, Alaska: A History of the 49th State, 2nd ed.
(University of Oklahoma Press, 1987).
Stephen W. Haycox and Mary Childers Mangusso, An Alaska Anthology: Interpreting the Past
(University of Washington Press, 1996), xxvi-xxvii.


history. Notably, oil deposits were discovered underneath Prudhoe Bay in 1968.
There was, however, no way to transport the oil due to unresolved Native claims.
The Alaska Native Claims Settlement Act (ANCSA) passed in 1971 and cleared
the way for an oil pipeline to be constructed.

Figure 3.4: Map provided by Alaska Community Action on Toxics as an overview of
toxic waste sites in Alaska

With the onslaught of WWII, the U.S. military began to strategically
locate air stations throughout Alaska. The first airstrip in Galena was completed
in 1942, with base facilities constructed in 1950.

Galena became the

northernmost air station for F-15 fighter jets in the United States. Over 50 years
of use, the Galena and Campion Air Stations, along with the Kalakaket Radio
Relay Station, have affected the peoples of Galena and the Interior in many ways.
The resources brought by the military allowed the village to become the hub for

the Middle Yukon Valley. The airport is the largest in the area, which permits
sizeable cargo planes (e.g., C-46 and C-6’s) along with smaller single- and
double- prop aircraft to enter the village, bringing supplies for Galena and the
surrounding villages. The site of the Galena Air Station (Figure 3.3) base also
allowed for a regional boarding school to become a vital part of the community.
There are, of course, concerns about the Air Force’s dominant presence in the
region. Galena is predominately Athabascan, mostly members of the Louden
Tribal Council, who practice a subsistence lifestyle.

Concerns about

environmental contamination of subsistence resources and the concomitant loss of
traditional practices are at the top of the list of community concerns. LTC’s
efforts to address the environmental and cultural harms to its community through
environmental self-determination are discussed in the next chapter.


Chapter 4
“We wanted the contamination cleaned up yesterday, the Air Force
wants to clean it up tomorrow, let’s compromise and clean it up
today.” -Theresa Clark, Louden Tribal member

Figure 4.1: Aerial view of Galena, Alaska.237

The Louden Tribal Council has faced many challenges in the last twenty
years. As previously mentioned, the village of Galena is a “bush” community,
i.e., off the road system, located in the Interior of Alaska. Situated 270 air miles
west of Fairbanks and 325 miles north of Anchorage along the Yukon River, the
only way in and out of this rural village is by boat, air, snow machine, foot or dog
sled. It is the largest community in the Middle Yukon Region and is governed by
three entities: the Louden Tribal Council, the City of Galena and the U.S.
government (primarily in the form of the Department of Defense (DoD, or more
specifically the USAF) and the U.S. Fish and Wildlife Service (USFWS)). These

Photo credit to the City of Galena,


three governments have played pivotal roles in the formation of this large rural
According to the 2003 LTC roll, there are 643 Louden tribal members.
The majority of tribal members reside in Galena along the Yukon River.238 They
make up approximately 63% of the population of Galena, estimated at 470 in the
2010 census.239 Prior to 1920, the village of Louden240 was located approximately
14 miles upriver from the present city of Galena. The cemetery is still located in
this spot. Around the same time, galena (lead sulfide) was discovered in the area
and the village of Galena developed into a principal supply and shipping point for
the ore. Thus, in the 1920s, miners moved into the area, as did missionaries. A
school and church were offered to local residents if they moved into this new
locality.241 The tribe moved its winter camp to the area while still occupying fish
camps and other camps in other regions of the river. Many changes came to the
region. As promised by the BIA, a school and church were constructed as well as
a post office. And, as mentioned above, with World War II the military entered
the region. First, they constructed an airstrip in Galena and then, in 1950, the
United States Air Force established a full-scale installation. Both Galena Air
Station and Campion Air Station were constructed and placed in full operation.
As part of ANILCA, the USFWS established the Koyukuk National Wildlife

A devastating flood destroyed much of the village in May 2013. This information is applicable
to Galena pre-flood.
U.S. Census Bureau, "American Factfinder: 2010 Demographic Data", Department of
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk (accessed
September 1 2013).
Galena was formerly known by Alaska Natives as Nataagheleel Denh or Notalee Denh. The
non-Native people of the area named it Henry’s Point after Chief Henry whose traditional fish
camp was located in the same spot. See, Sprott and Council, 8, FN 13.
There are several theories for why the villagers moved to the City of Galena. See, ibid., 8.


Refuge. Koyukuk consists of 3.5 million acres, which were traditionally used by
Athabascans for hunting and gathering.242 This is consistent with how Indian
lands have been disposed across the United States. “In an effort to build a
national cultural identity, the United States government converted many federal
and formerly Native American lands into federal parks and monuments.”243
These areas are now for the most part closed off to cultural activities.
Aside from the loss of lands due to the creation of federal reservations,
many traditional activities have been hindered due to the presence of the military
and the activities of war. Traditional harvest areas, for example, have been placed
off-limits and contaminants polluting the soil and groundwater have raised
concerns for those plant and animals that are harvested.

There is fear that

subsistence foods have been impacted as well as the Yukon River, which is sacred
to the LTC.
Hydrocarbons such as trichloroethylene (TCE) (an industrial solvent), jet
fuel, gasoline, and diesel fuel, along with DDT and heavy metals, contaminate the
groundwater and the soil. This has created many environmental concerns for
residents who stay in the region, including indoor air quality issues for one of the
residential school’s buildings.

Consistently, too, local perception holds that

health problems (e.g., high incidents of cancer), loss of berry picking areas, low
fish yields, moose meat with cysts, burbot with blackened livers and salmon with
pus sacs are linked to the contamination from the Galena Air Station, Campion


U.S. Fish and WIldlife Service, "Koyukuk National Wildlife Refuge: History ", U.S.F.W.S.
http://www.fws.gov/refuges/profiles/History.cfm?ID=75615 (accessed September 1 2013).
Erik B. Bluemel, "Accommodating Native American Cultural Activities on Federal Public
Lands " Idaho Law Review 41, (2005): 476.


Air Base and Kalakaket Radio Relay Station, all in close proximity to the City of
Galena. 244

Addressing Contamination: First Steps

The soil and groundwater in the Galena area are contaminated with
chlorinated solvents, DDT, heavy metals, jet fuel, gasoline, and diesel fuel.245
These toxic substances are a result of USAF activities. The U.S. Air Force has
been working on a remedial investigation of the contaminants left at the Galena
and Campion Air Stations for over 20 years.246
Much of the contamination outside of the Galena Air Station was detected
because of LTC’s efforts. For years there was concern that soil and groundwater,
along with flora and fauna, were contaminated from the decades of military
activity in the area at Galena Air Station, Campion Air Station, and Kalakaket
Radio Relay Station. This contamination led to LTC’s concern over traditional
food safety. Community members’ concerns were keeping them from having
community gardens, gathering berries at traditional sites, and, generally,
conducting activities in sites that were traditionally used for hunting and gathering

See, Agency for Toxic Substances and Disease Registry, "Galena Airport: Health Consultation",
U.S.A. http://www.atsdr.cdc.gov/HAC/pha/pha.asp?docid=903&pg=1 (accessed September 1
2013) (for additional history of the bases. “The former Galena Air Station (GAS) is now known
as the Galena Airport, located on the north bank of the Yukon River. The former Campion Air
Station (CAS) is also located on the north bank of the Yukon approximately six miles eastsoutheast of the Galena Airport. The site facilities, now removed, were situated on a river terrace
at above the general level of the Yukon floodplain. The former Kalakaket Creek White Alice
System (KCWAS) site is located about 22 miles south of Galena, across the Yukon River. The
station facilities are located on a mountaintop at elevation of about 1,950 feet. Kalakaket Creek is
a north-flowing creek about 2 miles west of the site. Kalakaket Creek drains to Kala Creek which
is tributary to the Yukon.”)
See, Spill Prevention and Response, "Contaminated Sites Database: Galena A.F.S./Airport
Sitewide", Alaska Department of Environmental Conservation (accessed
September 1 2013).


but were now regarded as hazardous.

Thus, LTC requested that the USAF

address these concerns. The USAF, however, was hesitant to investigate possible
contaminant issues off base (some contaminants had already been identified on
base) such as possible drinking water well contamination and reports of
abnormalities in traditional food sources.
This hesitation inspired LTC to initiate its own investigation with the help
of partner governments and organizations. First, the tribe decided to organize
itself and its membership for this purpose. In 1992, tribal leaders held a number
of community planning sessions to ensure the Council was moving in the right
direction and to strengthen the tribe’s governmental capacity. From these
sessions, the tribe developed a mission statement called “To Govern
Ourselves.”247 Tribal members also developed a theme that would help to steer
their actions: “Neel ghul neets niiy,” meaning “We work together, we help each
LTC then applied for an Administration for Native Americans (ANA)
Environmental Mitigation Grant in 1994-95.248

The tribe used the funds to

interview elders about traditional land use and environmental conditions pre- and
post-military occupation of the area.

Then the tribe contracted with an

environmental engineering firm to test for possible contaminants. The contractor
discovered 64 sites that had possible contaminants and deserved further study.249


Ash Center for Democratic Governance and Innovation, "Yukaana Development Corporation 2000 High Honors: Louden Tribal Council", Harvard University Kennedy School of Government
http://www.innovations.harvard.edu/awards.html?id=6464 (accessed September 1 2013).
Sprott and Council, 15.


One of the most visible impacts from the USAFs activities cited by the
contractor were thousands of 55-gallon drums that had been left behind by the
military and then scattered along the Middle Yukon Region after a 100-year flood
event in 1945.250 It was estimated that 250,000 barrels filled with oil and other
hazardous substances had been left to rust and leak into the soil and waters along
the Yukon River.251 The tribe again asked the USAF to take responsibility for its
actions. The military continued to resist. So, in 1996, the tribe called a meeting,
which included representatives from 27 state and federal agencies, to discuss the
military’s part in the environmental contamination of the area. The meeting,
along with pressure from Alaska’s congressional delegation, convinced the
military to accept responsibility. According to one commentator, “The Louden
Tribe chose to take a cooperative approach, operating from the standpoint that
they, as a de facto sovereign government, would interact with USAF on a
government-to-government basis to effect environmental remediation and drum
removal.”252 In 1999, the USAF and LTC signed a Memorandum of Agreement
(MOA) that helped define the relationship between the two governments (Figure
4.3). Some of the major elements are:

All parties agree to engage in open and timely communication by
working together to enhance and foster communication;

USAF agrees to consult with the LTC prior to reaching decisions
on matters that may have the potential to affect protected Tribal
resources, Tribal rights, or Tribal lands;

USAF recognizes the LTC is a sovereign Tribe, with the right to
set its priorities, develop and manage Tribal and Trust resources


Ibid., 16.


and be involved in Federal decisions or activities which have the
potential to affect these rights; and

USAF commits to search for ways to involve the LTC in programs,
projects, and other activities that build economic capacity and
foster abilities to manage LTC resources while preserving its
cultural identity.253

Figure 4.2: MOA signing ceremony with the USAF and Louden Tribal
Council, December 1999.254

With that last bullet point in mind, in 1999 the USAF contracted with
LTC’s for-profit Yukaana Development Corporation to undertake a $2.7 million
project to clean a 10-mile radius surrounding the Galena Air Force Station,
successfully removing 12,000 55-gallon drums and 3,200 barrels of tar products
from the area (Figure 4.4).255
Up until this point, LTC and its members had been afforded no special

Their arguments for cleanup had been essentially that they

deserved to be protected equally and fairly as outlined by the environmental laws.
That is the environmental justice argument. Nothing happened. Barrels filled

U.S.A.F., Galena Village/Louden Tribal Council and the 11th Air Force Elmendorf -Anchorage: An Alaska Model 2000.
Sprott and Council, 20. (Chief Peter Captain is pictured in the traditional vest.)


with hazardous waste continued to dot the landscape. Soil, water, and subsistence
foods off of Galena Air Station continued to be untested and community concerns

It was LTC’s assertion of self-determination – “We govern

ourselves” – that served as a reminder to the government agencies that they had a
trust responsibility to the tribe. It was that trust responsibility that permitted the
USAF to enter into an MOA with Louden and to fund the barrel cleanup. It is this
special relationship between federal and tribal governments that holds the power
for environmental protection and cleanup.

Figure 4.3: Yukaana Development Corporation and USAF remove barrels around

LTC did not stop with the drum removal effort though. While LTC still
was trying to address persistent worries about additional USAF contamination and
effects on subsistence resources, the tribe identified that an educational effort for
Galena and surrounding communities was also integral to moving forward with
tribal environmental self-determination. The tribe applied for and received a one-




year Indian General Assistance Program (IGAP) grant from the Environmental
Protection Agency (EPA).

With the funding, LTC began to work with

surrounding villages (Ruby, Koyukuk, Nulato, Kaltag, and Huslia), to do
environmental assessments. They subsequently formalized their relationship by
forming the Yukon Koyukuk Inter-Tribal Environmental Consortium (YKITC).257 By utilizing the expertise of the Alaska Department of Environmental
Conservation (ADEC) and the EPA, the tribes built capacity in grant-writing,
environmental assessments, and environmental planning. LTC and the tribal
governments from the YKI-TC villages recognized that, in order to get their
environmental concerns addressed, they had to be knowledgeable, active partners
in the process.258

And, they determined the only way to do that was on a

government-to-government basis.
From the six-village consortium,


spread its

message of

environmental self-determination by calling a summit of tribal leaders from along
the Yukon River and its watershed in Canada and Alaska. The first summit was
held in Galena in 1997. From there, the Yukon River Inter-Tribal Watershed
Council (YRI-TWC) was formed with the aim of providing environmental
education, addressing solid waste issues in the villages, and expanding and
supporting environmental self-determination efforts along the river.259
Within Galena, LTC formalized its relationship with the city government
by signing a formal Memorandum of Agreement (MOA) in 1998. The tribe and

Sprott and Council, 16.


the city divided the environmental responsibilities for the village with the tribe
taking responsibility for the broad, long-range environmental issues and the city
focusing on solid waste plus water and sewer.260 As education is key, the tribe
also developed an MOA with the Galena School District and the USFWS to
provide in-service programs for classes on environmental issues.261 LTC worked
with the USFWS to develop curriculum for a summer science camp, combining
traditional ecological knowledge with Western science.

LTC also holds a

separate summer spirit camp, where youth and elders come together in a camp
outside of Galena to learn Native arts and crafts, plant identification, songs, fish
cutting, and other traditional cultural activities.

LTC – Addressing the Harder Questions

In 2001, when I arrived in Galena, the tribe had been working for ten years
to have its environmental concerns met.

Great inroads had been made, as

described above, but there was still a lot of work to be done. First, while some of
the drums along the Yukon River had been collected, there were still hundreds of
thousands remaining. Closer to home, there was still concern about fuel leaks and
contaminant plumes from the Galena and Campion Air Stations, along with
concerns about PCBs and other pollutants at Kalakaket. Community members
believed that these unaddressed contaminants could be befouling drinking water
wells along with subsistence foods, leading to higher incidences of cancer in the
area. These issues were more difficult to address than the drums because they
were obviously not so clearly visible and easily identified.

Ibid., 19.
Ibid., 27.


While the tribe participated in community meetings and Regional
Advisory Board meetings262 with the USAF and DEC asserting its government-togovernment relationship, there was often the feeling that the tribe wasn’t taken
seriously by those two agencies. Community meetings and Regional Advisory
Board meetings tended to be forums where community members were heard but
little action was taken to follow up on their complaints. And, in these forums, it
seemed that the tribe and tribal members were viewed the same as any other
community members. The term “environmental justice” was bandied about in
these meetings, with little effect.
The EPA, on the other hand, was more respectful of the tribe’s
sovereignty. Thus, the tribe set up meetings with EPA department (i.e., the
contaminated sites program) heads and with EPA’s Region 10 Tribal Program.263
“Government-to-government”264 meetings were held with agency staff and the


Restoration Advisory Boards (RABs) are a tool used by DEC and DoD to engage with the
community during environmental restoration at contaminated federal facilities. According to the
DEC, “The Department of Defense gives each community the option of forming one of these
advisory boards to share community views with the installation decision-makers.” Spill Prevention
and Response, "Alaska Restoration Advisory Boards ", Alaska Department of Environmental
Conservation http://dec.alaska.gov/spar/csp/rabs.htm#top (accessed September 1 2013).
EPA has ten regional offices across the country, each of which is responsible for several states
and in some cases, territories or special environmental programs. Alaska is in Region 10.
A true “government-to-government” meeting would be between, at least, the Region 10
Administrator and the tribal chief. A meeting between EPA staff and a chief is not a true
“government-to-government” meeting. Unfortunately, while this sentiment is expressed by tribal
chiefs and tribal governments, it is not shared by the federal government. For instance, the Bureau
of Reclamation has a policy on tribal consultation. It instructs: “When dealing with tribes,
maintaining a government-to-government relationship frequently requires the federal government
to ensure that appropriate senior level officials and managers are present at initial and necessary
follow-up meetings with tribal governmental officials.” Native American and International Affairs
Office, Protocol Guidelines: Consulting with Indian Tribal Governments 2012.
Also see, Office of Superfund Remediation and Technology Innovation, Consulting with Indian
Tribal Governments at Superfund Sites: A Beginner's Booklet 2006. OSWER-9200.3-42. (“the
Division Director (or higher) meets with the tribal Chairperson”).


tribal chief and environmental program director265 with the focus on determining
how best to gain the respect and cooperation from DoD and DEC for the tribe’s
environmental claims. Additionally, the tribe’s second chief was selected as a
representative for the EPA’s Regional Tribal Operations Committee (RTOC)
along with the National Tribal Operations Committee (NTOC).266 The RTOCs
and NTOC were designed primarily for tribal representatives to work alongside
the EPA to further tribal environmental objectives at the regional and national
levels.267 The Louden Tribe used its position at the RTOC and NTOC to raise
issues about contamination at federal facilities in Alaska and the need for greater
respect as sovereigns between the federal and tribal governments.

It also

consulted with representatives from tribes in the lower 48 states to help determine
a path forward.
As a result of these consultations, it was decided that LTC would ask the
EPA to determine whether or not Galena qualified for the National Priorities List
(NPL). Qualification for the NPL is one of the first steps for being listed for
Superfund cleanup. The tribe acknowledged immediately that Galena would
never be placed on the NPL list because of the politics involved. The NPL listing
requires a Hazard Ranking System (HRS) score, public comments, and the
opinion of the state governor (though the policy of EPA was to obtain approval


I was the environmental program director attending the meetings from April 2001 to September
As the environmental program director, I was selected as the alternate and most often attended
the regional and national meetings along with participating in regular workgroups.
For more information about the RTOC and NTOC, see, Region 10: E.P.A., "Region 10 Tribal
Operations Committee (Rtoc) ", U.S. E.P.A.
TOC) (accessed September 2 2013).


by the governor, not just his or her opinion).268 In this case, then-Governor
Murkowski would never have approved the addition of a Superfund site in
“pristine” Alaska.269 LTC, however, wanted to raise awareness of Galena and
assert its power. Thus, the tribe requested a Preliminary Assessment (PA) and
Site Inspection (SI). The results of the PA and SI led to an HRS score that
verified there was a high potential that contaminants from Galena and Campion
Air Stations might pose a threat to human health and the environment. While the
score was high enough to pursue formal NPL listing, the tribe decided to use the
information instead, informally, in its negotiations and communications with the
Along with the NPL request, LTC also requested assistance from the
Agency for Toxic Substances and Disease Registry (ATSDR). The tribe asked
ATSDR to perform a human health consultation for Galena and evaluate health
impacts from the contamination left by the military installations. A human health
consultation outlines environmental issues and health concerns that ATSDR will
use for future public health assessments (PHA). In 2003, the agency published its
results, announcing that it “did not identify issues that pose an imminent public
health threat, but did identify several waste disposal issues and community
concerns that will be addressed in the PHA.”270 ATSDR identified a number of
concerns including:

Contaminated drinking (ground) water


Interview with EPA Contaminated Sites program staff, 2002.
Agency for Toxic Substances and Disease Registry, "Health Consultation Conducted in Galena,
Alaska ", U.S.A. http://www.atsdr.cdc.gov/news/displaynews.asp?PRid=2047 (accessed
September 1 2013).


Indoor air issues

Petroleum, oil and lubricant releases

Possible harmful health effects from the previous use of pesticides

Benefits derived from the use of traditional subsistence foods versus the
potential adverse health effects from environmental contamination of
those food sources

High cancer rates.271
The PHA was completed in 2007. The PHA made conclusions based on

existing data, mainly gathered by the USAF, supplemented with some sampling
of subsistence foods by LTC and USFWS. The ultimate conclusion of the PHA
was that there were no legitimate human health concerns from USAF
environmental contaminants.272
For its part, the tribe launched its own investigation into the health of
subsistence foods. Along with the Tanana Chiefs Conference and the Agency for
Toxic Substances and Disease Registry (ATSDR), LTC worked on identifying
foods that people eat, in what quantities, and concerns people may have regarding
wild and traditional foods. Hunting, fishing, preparing and consuming these
traditional foods are all integral to LTC’s culture and tribal members’ livelihoods.
This collaboration resulted in the Final Report on the Alaska Traditional Diet
Survey.273 As pointed out in the report, “[f]or Alaska Natives, harvesting and
eating subsistence foods are essential to personal, social, and cultural
identity…rural Alaskans consume large quantities of subsistence foods and are


Federal Facilities Assessment Branch, Public Health Assessment for Galena Airport 2007.
I collected survey data as part of the project for LTC. See, Carol Ballew et al., Final Report on
the Alaska Traditional Diet Survey (Anchorage, AK: Alaska Native Epidemiology Center
Alaska Native Health Board, 2004).


therefore at potential risk of exposure to contaminants that may be in those

Sampling a Traditional Food Source

In practicing environmental self-determination, the Louden Tribe
identified one food of high concern to test, burbot (Lota lota). For years, there
had been reports of abnormalities in burbot livers,275 a delicacy among the
peoples of the Middle Yukon Valley. It was a good candidate for a study because
it is a resident fish that prefers shallow waters. Its diet consists of other fish. It is
a popular subsistence fish, particularly in the fall and winter months for ice
fishing, with big, oil-rich livers that people like to consume. In addition, while
LTC had limited capacity for testing, its sampling results could be compared to
those of other agencies that were also testing burbot on the Yukon River.
Additionally, LTC determined that fish contamination due to mercury or
organochlorine pollution is a significant threat to the health and welfare of tribal
members. Because tribal members consume fish in much greater quantities than
the general population,276 there is an increased vulnerability to mercury and


Ibid., iv.
See, David B. Anderson et al., Traditional Ecological Knowledge and Contemporary
Subsistence Harvest of Non-Salmon Fish in the Koyukuk River Drainage, Alaska 2004. Final
Report for Study 01-100-3.(For example, one comment from a Huslia resident expressed concern
about a large number of burbot caught in the fall of 2002 that had spots or areas of discoloration
on their livers, and appeared sick: “You know what I notice, last fall we couldn’t eat it [burbot].
Look like it’s all sick inside, and they are all poor. I didn’t find no good ones. Lots of people give
us some but look like they’re all sick. I tried them. I cook it…but it’s....it’s different. All of them
was that way. The liver…it’s all dots. Its liver is pretty shrunk, like it’s sick…it’s all sick. I don’t
think I want it now ‘cause look like it’s all sick.”) Ibid., 55.
But see, ATSDR Report where the agency determined that since burbot was consumed at such
low levels that even though contaminant levels were high, there was no real concern with burbot
consumption. The agency’s data on consumption rates, however, may have assumed
unrealistically low consumption rates. Additionally, the agency failed to take into account that
consumption may have dropped due to fear of contamination. It also failed to recognize that the
fish themselves were an indication that the river was contaminated. Branch, 64.


organochlorine toxicity.

As a consequence, tribal members would bear a

disproportionate share of the negative environmental consequences resulting from
any bioaccumulation of mercury and organochlorines in aquatic ecosystems.
Thus, LTC’s environmental program collected mercury and organochlorine
contamination data at lakes and sloughs that were prioritized by their importance
to tribal member’s fishery utilization. Fish were then collected and analyzed to
determine the levels of mercury and organochlorine contamination.
Six burbot samples were collected in October 2002.

Local fishers

cooperated in the study by identifying normal fishing holes for burbot, setting the
lines, and contacting the LTC Environmental Department when the fish were
caught. The fish were then collected, stored on ice and transported to the LTC
tribal office that had been cleaned and prepared to act as a laboratory.
The fish collection sample kit consisted of baby diapers soaked in fixative
for fish livers; and clean glass jars for soaking ½ of each fish liver, spleen sample,
kidney sample, and heart samples overnight prior to returning them to the diapers
for shipment – these samples were never frozen. It also included clean glass jars
for filling ¾ full of skinless fillet fish muscle tissue collected from the same
location from each fish (right side, dorsal muscle segment, excised 1-inch behind
the head and extending backward above the lateral line); and clean glass jars for
placing the other ½ of each fish liver into for chemical analysis.
Sample Handling: As soon as the fish were removed from the collection
device they were identified by species. Non-target species or specimens that did
not meet the size requirements were returned to the water. The target species

were identified, with the species name and all appropriate information recorded
on the field record forms. Individual fish were rinsed in ambient water to remove
any foreign material from the external surface. Large fish were stunned with a
sharp blow to the base of the skull.

Care was taken to keep the stunning

instrument clean to prevent contamination. Small fish were put on ice to stun
The burbot were grouped by general size class and placed in clean holding
trays to prevent contamination.

All fish were inspected to ensure that the

sampling equipment had not damaged their skin and fins; damaged specimens
were discarded. Each fish was measured to determine total length (mm) and
weighed. Each fish was also assessed for external anomalies. This information
was recorded on respective field records, sample identification labels, and sample
custody labels.
Sample Processing and Packaging: Collection was done with hook and
line and a fishing lure. The work area and hands were rinsed with distilled water
before beginning fish processing and, in between, each fish was rinsed with
distilled water before removing the tissue sample. The fish sample was filleted
using a clean, stainless steel knife. A piece of muscle tissue (about 2 inches by 1
inch by 1 inch) was cut off from the thick part of the fillet on top of the back and
right behind the head. Then, while wearing the gloves, the muscle tissue was
sliced into four small French-fry-shaped pieces using a stainless steel fillet knife.
The tissue pieces were placed into a pre-labeled glass vial. The vial was sealed


and placed in a Ziplock bag, along with completed Forms 2 and 3. Each sample
was placed in an iced cooler.
When all samples had been processed, the sample custody and distribution
records were completed for all fish samples to be shipped in each cooler. A copy
of each sample custody record was placed in a watertight bag and the bag was
taped to the inside cover of the respective cooler. Care was taken for the fish to
be frozen overnight and then the frozen samples to be placed with dry ice and any
necessary packing material into the cooler, then sealed with reinforced tape for
Bait: This project was intended to be a baseline study to assess tissue
contaminant levels in one of LTC’s traditional food sources, burbot. Black fish is
the bait used for catching burbot. The best time for blackfish collection is during
the fall, around October, and the burbot was collected during the same time
All burbot collected were examined macroscopically (necropsy) and tissue
samples were collected for histology following standard veterinary necropsy
guidelines. Sample collection method and storage protocols for toxicological
assessment of biological specimens as provided by George Gardner, of the U.S.
EPA Environmental Research Laboratory, were used. Chemical analysis tests
were run at the U.S. EPA Region 10 lab in Port Orchard, WA. Burbot tissue
samples (i.e. liver, kidney, spleen, muscle tissue) were tested for organochlorines
(i.e., DDT, HCB and chlordane), PCBs (PCB screen), toxaphene (toxaphene


screen) and heavy metals (complete heavy metal screen). The U.S. EPA
Narragansett Laboratory in Rhode Island did the histopathology of the burbot
Protocol: The steps below were followed as part of the sampling protocol:
1) The selected candidate fish were numbered and photographed with the
number clearly visible in the photo.
diseased) fish were selected.

The three worst (largest, oldest, most

One healthy appearing fish was selected as a

control. A clean workplace was setup in the LTC tribal office, free of chemical
contamination (exhaust, fuels and lubricants, cigarette smoke). The fish were
measured and the weight, fork length, total length, and any abnormalities
including atypical fin rays, erosion of fins, skin lesions, obvious parasites,
discoloration, etc. were recorded.
2) Gloves were worn during the sampling process and changed between
each fish sample. Fish were dissected in accordance with Dr. Gardner’s protocol.
The liver was then removed and inspected for nodules. The color, surface and
texture of the liver were recorded in the lab notes.
3) The liver was cut in half. The less nodular half of the liver was placed
into a clean sample jar from the kit for chemical analysis, while ensuring that the
jar was not filled more than ¾ full. The jar was labeled with the fish number and
added to the ice chest for freezing prior to shipment. The other half of the liver
was taken for histopathology. It was wrapped in a fixative-soaked diaper for
twenty minutes to harden.

4) During the 20-minute period, the spleen was located and a piece the
size of a dime was placed into one of the clean jars from the sample kit. The jar
was labeled with the fish number. A fixative-soaked diaper was wrung out into
the jar with the spleen tissue. The liver was sliced with a scalpel into quarter inch
thick slices, paying attention to slice through any nodules, if present.
5) The liver slices were added into the jar filled from the wrung-out
diaper. Permeation was allowed to continue overnight. Before shipment, the
fixative and liver tissues were transferred back into the diapers and sealed in the
Ziploc bag the diaper was shipped in. The Ziploc bag was then labeled with the
fish sample number.
6) These samples were kept at room temperature.
7) From the same fish, a skinless filet of muscle tissue was collected for
chemical analysis from the right side, dorsal muscle segment, excised 1-inch
behind the head and extending backward above the lateral line. Enough tissue
was collected to fill a clean sample jar from the sample kit about ¾ full. Nothing
was added to this jar – no water or fixative – just the skinless muscle tissue. The
jar was labeled with the fish number and placed with the samples to be frozen.
8) The head of the fish was then cut off and placed into a Ziploc plastic
bag. The bag was labeled with the fish number and added to the ice chest with
samples to be frozen. The heads were used to determine the age of the fish using
otolith analysis. The fixed livers and spleen tissues were kept in the fixative


soaked diapers at room temperature. The frozen tissues were kept frozen until
transport via Northern Air Cargo.
Sample Shipping: All samples were shipped to the respective laboratories
within twenty-four hours of sample collection.
Laboratory Custody Procedures: Laboratory custody was acknowledged
on the sample custody and distribution record and through the logging in of fish
samples on the laboratory sample log. Each sample was logged into the lab
sample log using a unique number recorded on the custody and distribution
record. When analyses were completed, the custody and distribution records were
forwarded with the analytical results to me, the Environmental Director of LTC.
Sample Results: Mercury, arsenic, and PCBs were detected in all six
samples. DDT was detected in two of the samples. The highest concentrations
were found in the livers, where contaminants tend to bioaccumulate. The ATSDR
used EPA’s Region 3 risk-based concentration (RBC) values to determine what
was a “safe” or acceptable amount of a contaminant for its studies. I have used
the same RBC values here. The RBC for arsenic was 0.0021mg/kg; for mercury
it was 0.14 mg methylmercury/kg; for DDT 0.0093 mg/kg; and for PCBs it was
0.0016 pg/g.277 As illustrated in the Table 4.1, many of the samples exceeded the
acceptable risk limit. ATSDR used Louden’s sampling round when doing its
public health assessment for Galena. It determined that the small sample size was
an issue when determining how much credence to give the study.278 ATSDR also

Ibid., 82..
Ibid., 54.


felt that the number of burbot subsistence users was small and therefore the high
levels of contamination were not a cause of concern.279
At about the same time as I collected samples for Louden, USFWS and
USGS sampled burbot on the Yukon River as well. In 1998 and 1999, the U.S.
Fish and Wildlife Service collected burbot liver samples from the Tanana River
below Fairbanks, Kanuti National Wildlife Refuge at Bettles (Koyukuk River),
Tetlin National Wildlife Refuge (Tanana River), and Yukon Flats National
Wildlife Refuge at Beaver (Yukon River).280 The report found that there were
greater contaminant concentrations of DDT and its metabolites from sites below
Fairbanks and Yukon Flats Refuge than at Tetlin and Kanuti Refuges. The
authors of the report concluded that the greater concentrations were probably
attributable to the historical use of DDT within the city of Fairbanks and at nearby
military bases.281 The mean concentrations of DDT and PCBs for this study were:
DDT – 0.18-2.76mg/kg; and PCBs – 10-3.70 mg/kg.282
In 2002, the U.S. Geological Survey in partnership with the USFWS,
collected burbot, along with other fish, to measure environmental contaminants
and evaluate physiological, morphological and histological responses of
contaminant exposure in fish within the Yukon River Basin.283

The report

ultimately concluded that “[o]verall fish health was generally good and the

Keith A. Mueller and Angela C. Matz, Organochlorine Concentrations in Burbot (Lota Lota)
Livers from Fairbanks, Alaska, and Kanuti, Tetlin and Yukon Flats National Wildlife Refuges,
Alaska 2000. NAES-TR-00-01.
Ibid., 32.
Ibid., 29.
Jo Ellen Hinck, Fish Health and Contaminant Assessment in the Yukon River Basin, Alaska


concentrations of most chemical contaminants were low” compared to
concentrations found in fish in the Mississippi, Rio Grande, and Columbia
Rivers.284 Concentrations of pesticides, such as DDT, and total PCBs were found
to be low in all samples. Mercury and selenium were the only contaminants
discovered that exceeded thresholds for ecosystem health.

Both had been

identified as contaminants of concern in previous studies within the Yukon River,
according to the authors.285
ATSDR reviewed all of the above studies when evaluating its conclusion
in regard to Louden Tribal Council members concerns about the health of burbot
near Galena. The agency ultimately determined that the results of the studies
were inconclusive, and possibly not “even indicative of a problem.”286 And, the
agency concluded, “considering the relatively small contribution burbot…make to
the total fish subsistence diet of the Galena residents, ATSDR has no basis on
which to conclude that these fish species should be excluded from the diet.”287
Exclusion of burbot from the diet, however, was not the question posed by
LTC and its community members. The tribe wanted to know if there was a reason
to believe that contamination from the USAF had reached the Yukon River and
was affecting traditional subsistence resources. While the data set was small, it
indicates that further study is warranted.


Branch, 55.


Table 4.1: Results of LTC burbot sampling.
Sample #



Arsenic Mercury DDT



(mg/kg) (mg/kg)































































Sample 1

Sample 2

Sample 3

Sample 4

Sample 5

Sample 6








“ND” means that no DDT was found at or above detection limits, which were at 0.01 mg/kg.


Outcome: Though ultimately the ATSDR PHA resulted in no significant
findings the use of that tool, along with the tribe’s sampling rounds, the HRS, its
strategic use of government-to-government meetings with various agencies (e.g.,
the EPA) and its contacts with tribes in the Lower 48 who were able to provide
information and use their influence at the national level, the tribe provided enough
pressure on DoD that it began to do more than just have meeting-after-meeting,
discussing the contaminants in Galena.

This increased attention led to the

formation of a Technical Project Team (TPT) in 2002. The TPT is compromised
of the LTC, City of Galena, Galena City Schools, USAF, and ADEC. The TPT
allows the concerned governments to move together as equal partners in
determining what needs to be studied and the proper remediation methods for
cleaning up contaminants. While LTC does not have veto authority like USAF
and ADEC, the goal of the TPT is to reach consensus in decision-making.
With the advent of the TPT, USAF did a comprehensive study of
contaminants at Galena and Campion Air Stations, finding numerous
contaminated sites (Figure 4.4). And while some of these sites had previously
been identified, the USAF’s principle remediation method was natural attenuation
– meaning leave the contaminants in place and they will eventually degrade. This
was not good enough for LTC, which was convinced that there were
environmental and human health impacts and that the contaminants were reaching
the sacred Yukon River.


Figure 4.4: Map of contaminated sites at Galena Air Station.289

LTC pushed for sentry (monitoring) wells to be placed along the Yukon
River’s edge, despite protests over the years by the USAF that there was no way
contaminants could be reaching the river. Finally, in 2005, ADEC and DoD
admitted that contamination of the Yukon River was a real possibility. “Potential
pathways for contaminant exposure include contaminated groundwater migrating
to drinking water wells or to the Yukon River, vapors migrating from subsurface
contamination into buildings, direct contact with contaminated subsurface soils,
and accumulation of contaminants in wildlife harvested for subsistence.”290
Studies have also confirmed that there are the following:

Petroleum-contaminated soil and groundwater at several locations around
the airport, such as the two fuel tank farms (Million Gallon Hill and the
Petroleum, Oils, and Lubricants [POL] Tank Farm), the Fire Protection
Training Area, the JP-4 Fillstands, and the Southeast Runway Fuel Spill


Photo courtesy of DEC, available at:
Spill Prevention and Response, "Galena Air Force Station ", Alaska Department of
Environmental Conservation http://dec.alaska.gov/spar/csp/sites/galena.htm#database (accessed
September 1 2013).


Chlorinated-solvents in groundwater
(Buildings 1845 and 1700); and


Pesticide-contaminated soil around the airport.291



As of April 2013, monitoring wells were still being installed, soils were
being removed and treated, more drums and buildings were being removed, and
risk assessments were ongoing.292 While the bigger issues still remain, more
finite concerns have been addressed. There had been concerns that one of the
school buildings on base was suffering from poor indoor air quality due to
infiltration of diesel fumes from a contaminated groundwater plume that was
directly under the building. The USAF tested the building and retrofitted it with
air filters to ensure that no fumes would be impacting the children and teachers
who occupied the space daily.

Additionally, the USAF tested and removed

contaminated soil on a site near the Galena Air Station so that community
members could re-establish a community garden that had been abandoned
previously due to contaminant concerns. Cleanup of Kalakaket and Campion
allowed tribal members to return to previously abandoned harvest areas for
berries, moose, and fur-bearing animals such as muskrat.293 While, on paper,
LTC has no land beyond the village townsite plot, it has worked to establish what
Charles Wilkinson has coined “workable islands of Indianness within the larger
society.”294 Through LTC’s assertion of environmental self-determination, even
without a land base, the tribe was able to rectify some of the cultural harm that


Response, "Contaminated Sites Database: Galena A.F.S./Airport Sitewide".
Through conservations by the author with residents of Galena, it was related that some, but not
all, people hesitated or completely avoided certain areas due to fear of contaminants.
Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern
Constitutional Democracy (New Haven and London: Yale University Press, 1987), 122.


occurred from its earlier reliance on environmental justice principles and the
concomitant ignoring of those principles by the federal government.
On May 28, 2013, Galena was nearly destroyed after an ice jam backed up
the Yukon River (Figure 4.9). Nearly 90% of Galena’s buildings were damaged
or destroyed. All but 76 residents were evacuated. The town was declared both a
state and national disaster area, making disaster funding available to residents.
Damage estimates exceed $10 million.

The regional nonprofit corporation,

Tanana Chiefs Conference wrote in a letter on June 2, 2013: “‘Galena is a
hazardous place at this time due to diesel, sewage, and ice damage,’ citing sewage
spills, hazardous materials, spilled fuel, destroyed dump, loose power lines,
downed and falling trees, heavy-equipment traffic and limited infrastructure as
factors making it ‘dangerous to visit.’”295 Following the flood, the future of
environmental mitigation specific to the USAF contamination is uncertain.296


I.C.T.M.N. Staff, "Galena, Alaska Struggles to Rebuild after Yukon River Ice Jam Causes
Devastating Flood " Indian Country Today (2013).
http://indiancountrytodaymedianetwork.com/2013/06/17/galena-alaska-struggles-rebuild-afteryukon-river-ice-jam-causes-devastating-flood-149945 (accessed September 1, 2013).


Figure 4.5: In this May 27, 2013 photo released by the National Weather Service,
homes and other buildings are shown flooded in Galena, Alaska. (AP
Photo/National Weather Service, Ed Plumb)


Chapter 5

Environmental justice is a faulty tool for tribes. It can have adverse
environmental, social, and political impacts, because environmental justice laws
and policies frame Native Americans as racial minorities, instead of approaching
environmental issues through the unique relationship that has been historically
established between the federal and tribal governments.
The Louden Tribal Council has faced contamination of subsistence
resources and loss of land rights. Louden Tribal Council members perceive that
the Department of Defense (DoD) is responsible for much of the contamination of
their lands and waters. Although federal agencies, such as the DoD, are mandated
to work on a government-to-government basis with tribes, this thesis shows that
this has not always been the case in practice. This case study demonstrates that
reliance on an environmental justice policy framework instead of a governmentto-government relationship resulted in negative environmental and socio-cultural

Lessons Learned about Environmental Justice

As is evident, many of the elements of the environmental justice frame
could be applied to indigenous populations. According to the Military Toxics
Project and the Environmental Health Coalition, “Environmental justice is a
principle and a movement closely aligned with communities and tribal peoples


fighting the impacts of military toxics.”297

This, however, is similar to the

argument used by cultural geographers when discussing the use of the term “race”
over “ethnicity.” Peter Jackson insinuates a “minority status without recognizing
the centrality of power to the social relations implied by such a status.”298
Claiming that something is an environmental justice issue lends a minority status
but ignores the power of the unique relationship that native populations have. In
the United States, as outlined by legal arguments discussed previously, tribes are
acknowledged to have “inherent jurisdiction over their people and territory.”299
And, while the EPA discusses environmental justice in relation to indigenous
peoples, it also acknowledges that indigenous tribes are due more than protection
under environmental justice concepts as memorialized in EO 12898. In addition
to following its own mandates, the EPA recognizes that every federal agency is
subject to the United States’ trust responsibilities and not simply the concepts of
equality promoted by environmental justice advocates.300
Despite assertions by the United States, tribal governments are constantly
battling attempts by the federal government and non-Natives to deny their rights
to self-governance.301 By citing a case as an environmental justice issue, tribes
are arguably playing into the sovereignty deniers’ hands and playing a “race”

This game denies the power that tribes have as semi-sovereign


Defend Our Health: The U.S. Military's Environmental Assault on Communities, 6.
Jackson, 153.
Case and Voluck, 14.
U.S. Environmental Protection Agency, Response to Tribal Consultation & Coordination
Comments on Plan EJ 2014 Strategy and Implementation Plans, 5-6,
http://www.epa.gov/environmentaljustice/resources/policy/plan-ej-2014/plan-ej-tribal-consultresponses.pdf (accessed on September 5, 2013).
Wood and Welker, "Tribes as Trustees Again," 393.


governments.302 Several U.S. Supreme Court cases have reaffirmed that “unique
Native institutions and rights are based on the historical political status of Natives
and are not, therefore, racially defined.”303 This is extremely important in the
maintenance and development of programs and benefits for Native Americans and
especially Alaska Natives. If Native Americans were simply defined by their
“race” and not their political status, then the programs and benefits they retain
could be dismantled.304 “[T]hat differential treatment of Indians in federal law is
constitutionally permissible is a significant difference between Indians and other
‘communities’ that comprise the environmental justice movement.”305


Suagee, an enrolled member of the Cherokee Nation and legal expert on
environmental and Indian law argues that “[t]he general approach … to authorize
tribes to be treated in the same manner as states…makes tribes fundamentally
different from other kinds of minority communities that are involved in the
environmental justice movement.”306 Thus, the use of the environmental justice
framework, defining indigenous peoples of North America by their “race” and not
their political status, is inapposite with respect to tribal goals of environmental


Tribes have been described as "quasi-sovereign tribal entities" Morton v. Mancari, 417 U.S.
(1974); "quasi-sovereign nations" Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th Cir. 1956);
"dependent nations" Colliflower v. Garland, 342 F. 2d 369 (9th Cir. 1965); "residual sovereignty"
Long v. Quinalt, No. C75-677 (W.D. Wash., Sept. 2, 1975); and "semi-sovereign existence"
Quechan Tribe of Indians v. Rowe, No.72-3199 (9th Cir. Feb.2, 1976).
Wood and Welker, "Tribes as Trustees Again," 393.
“Because of the status of tribes as sovereign governments that are subject to the plenary power
of Congress, the Supreme Court has ruled that it is constitutionally permissible for Congress to
enact laws that result in differential treatment of Indians.” Office, (citing Covolo Indian
Community v. FERC, 895 F.2d 581 (9th Cir. 1990)).
Dean Suagee, "Turtle’s War Party: An Indian Allegory on Environmental Justice," Journal of
Environmental Law and Litigation 9, (1994): 472.


Environmental justice advocates extol the power of civic participation.
They argue it is the key to protecting groups who live in communities affected by
contamination.307 Civic participation means collecting and incorporating various
views of the general citizenry into the decision-making processes that affect
them.308 In the case of LTC, the tribe tried to go the route of the “general
citizenry” participating in the civic process, attending public meetings, writing
comment letters from 1985 until 1996, but with little result. The first specific
mention of LTC in the spill database (other than as “concerned citizens”) was in
2002, when Chief Peter Captain asked to meet with the head of the 611th
Squadron, Lt. Col. Chamberlain.309 It took many years and many meetings before
LTC was regarded as a partner in the cleanup process and that was only because
the tribe used its sovereign power, reminding the federal government agencies of
their trust responsibilities.
While LTC borrowed from the environmental justice toolbox by doing its
own sampling of subsistence foods, this was more than the simple citizen
involvement promoted by EJ activists. LTC borrowed from the EJ toolkit and


Luke Cole, “The Theory and Reality of Community-Based Environmental Decisionmaking:
The Failure of California's Tanner Act and Its Implications for Environmental Justice” Ecology
Law Quarterly, 25 (1999): 734-36.
See, ibid., 472. “January 24-24, 2002, staff attended a meeting with Louden Tribal Council
(LTC) and the Air Force in Galena. In a July meeting sponsored by LTC Colonel Chamberlain and
the First Chief Peter Captain agreed to meet quarterly to discuss Galena issues. Curt Black from
EPA was connected by teleconference. Also, present at the meeting was Tanana Chiefs
Conference (TCC), BIA and DOT. Comments made by DEC, EPA, and LTC on the monitoring
program for the POL and TCE plumes were discussed. The AF said they planned to prepare
responses to the comments and have a comment resolution meeting. The AF is in the process of
hiring independent consultants to review the reports and comments. The AF is also planning to
have a peer review to determine the best solutions for the site. The AF could not give dates of
when these events will occur. The Department has also hired a hydrologist with Shannon and
Wilson to review documents, recommend improvements in site characterization, and evaluate
suitable remedial technologies.”


gained the knowledge needed to take water quality samples and fish samples and
used it in their charge that the Yukon River is contaminated. It wasn’t the sample
taking alone, however, that mattered. It was the tribe exercising its sovereignty,
establishing legitimacy in the eyes of the other governments by deploying
Western science and its own traditional ecological knowledge as a tool to prove
its case, that was the real import of the sampling effort.
While ATSDR and the federal government may not have been convinced
by LTC’s burbot sampling because of the small sample size and the purported low
consumption rates of burbot, it was empowering to the tribe and its members.
The burbot were contaminated.

Tribal members had seen the contamination

before in the burbot livers and had reduced their intake.

The fear of

contamination made at least some hesitate before eating their traditional food,
burbot livers. And not only the burbot, but moose, caribou, or any other animal
that appeared to have a deformity became suspect of suffering from
contamination. People questioned the health of their traditional foods. That is a
cultural harm. LTC identified the harm. They took action and quantified the type
and amount of contamination in the burbot. And then LTC pushed for clean up.
Contamination of the resident fish meant that the river, which was sacred to LTC,
was contaminated. It meant that tribal members were going to change their
customary practices. If LTC had followed the environmental justice rubric, little
else would have been done. A health advisory may have been deemed good
enough by ATSDR due to the small population and relative remoteness of Galena.
But, as Elizabeth Hoover found in her article “Cultural and Health Implications of


Fish Advisories in a Native American Community,” “[h]uman health in Native
American communities … is intimately tied to the health of the environment.
Fish advisories should not be used as an institutional control to protect humans
from exposure to contaminants.”310 As it is, LTC has pushed for cleanup of
contaminated groundwater and soils along with monitoring wells to help detect
plume movement. The tribe is dedicated to ensuring a clean environment for its
people through environmental self-determination.
Some of the challenges faced by many people who fall under the
“environmental justice” umbrella are the same for tribes, though tribes have
different and stronger tools available to them. Being a sovereign dependent nation
carries with it a power that would be a fallacy to neglect. In the case of LTC, it
used its power under the CWA as a sovereign nation and leveraged the expertise
of USFWS to help bridge the gaps between Western science and TEK in
developing water quality sampling protocols and water quality standards. It also
joined forces with ATSDR to help gain an understanding of traditional diets as
they evolve. LTC also accessed the unique sources of money available only to
tribal governments to fund training and tribal positions (e.g., ANA and IGAP).
Bullard has written that, “[t]he goal of an environmental justice
framework is to make environmental protection more democratic.”311 For tribal
governments, the goal is not to bring democracy to environmental protection. The
goal is to ensure that tribes are in the lead when it comes to environmental

Lucie Laurian, "Public Participation in Environmental Decision-Making." Journal of the
American Planning Association 70, no. 1 (2004): 56-7.
Robert D. Bullard, "Environmental Justice for All: It’s the Right Thing to Do " Journal of
Environmental Law and Litigation 9, no. 2 (1994): 307.


protection of their lands. Wood and Welcker explain that, “[t]raditional Native
sovereignty is inextricably connected to [a] spiritual conservation mandate. In
effect, tribes use their sovereignty to exercise their spiritual duty to protect the
interests of beneficiaries in distant generations.”312

And that is exactly why

environmental justice is the wrong tool for tribes to use.

Pursuing Environmental Self-Determination

It is the federal government’s trust responsibility to protect the right of
tribes to carry on self-government.313 EPA has worked hard, despite resistance
from other government agencies, to fulfill the mandates of executive orders and
the statutory provisions that apply to tribes. More can be done, however. LTC
and other tribal governments can push through the RTOCs and NTOC for more
provisions in environmental statutes and regulations to help tribes assume roles
like those of the states. Especially for Alaska, it is imperative that provisions are
made for the EPA to carry out the federal trust responsibility where tribes have
not yet assumed roles like those of states, or cannot due to land status.314 In April
1994, representatives of the NTOC submitted a document to EPA entitled
“Completing the Picture: A Tribal Submittal to Address the U.S. EPA Strategic
Plan.” Under the heading “Environmental Justice,” this document states, in part:
“Environmental justice for tribes must include funding and program participation
on an equal basis with states.

Those individuals living within tribal

environmental jurisdiction must be given the same opportunities as everyone else

Wood and Welker, "Tribes as Trustees Again," 385.
Suagee, "Turtle's War Party," 487.
Ibid., 488.


to live in a safe and clean environment.”315 Here, tribes blurred the lines between
environmental justice and tribal environmental self-determination.

A clean

environment for tribes is not about “democracy,” and to lose sight of that confuses
the issue for Indians and non-Indians alike. In order for the message of tribal
sovereignty and environmental self-determination (i.e., tribes are different and
must be respected as separate sovereign governments) to resonate, it cannot be
mixed with the message that tribes are different because of their race or
socioeconomic status and deserve to be treated equal to the affluent whites in
Compared to others in the dominant society, a Native American’s way of
life depends more directly and to a greater extent on land and resources. Lands
and resources are not limited to tribal reservations. Too often, though, tribal
jurisdiction is only recognized within reservation boundaries. While the EPA can
ask tribes to fill in gaps of federal oversight by developing water quality standards
that include wetlands, for example, those standards will carry little weight when a
tribe has no recognized land base in which to apply its standards. For example,
LTC developed water quality standards for the Yukon River. The tribe wished
the DoD to consider its standards when outlining the applicable or relevant and
appropriate requirements (ARARs) for cleanup of the USAF’s contamination.
The DoD, while recognizing LTC as a sovereign tribal nation, did not do so
because LTC had no jurisdiction over the Yukon River. Thus, LTC and other
tribes without a land base must come up with ways of extending jurisdictional

National Tribal Operations Committee, “Completing the Picture: A Tribal Submittal to Address
the U.S. EPA Strategic Plan.”


boundaries.316 One suggestion by Wood and Welker is that tribes promote land
restoration proposals.

These proposals would provide for land previously

occupied by a tribe to be purchased either in fee or in trust and returned to the
tribal land base.317 She acknowledges that this would require a great amount of
private funding or congressional legislation and appropriations.318 And, for LTC
and other Alaskan tribes, they would be sure to meet resistance at least as far as
congressional approval.
Another recommendation is that tribes may contract with state and federal
agencies to advance cooperative programs on lands outside of reservation
boundaries.319 This is a viable option for LTC and other Alaskan tribes as long as
funding could be provided for tribal staff. LTC could work in cooperation with
USFWS in the Koyukuk National Wildlife Refuge. LTC has effectively used
MOAs in the past and this is another avenue where the tribe could enter into an
MOA with an agency. An MOA could be drafted that would recognize LTC’s
environmental and/or wildlife regulations.

It could also include shared

enforcement on the refuge lands. Both of these options would give LTC the


Wood and Welker, "Tribes as Trustees Again," 393.
See, for example, "Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw Indians
Ancestral Lands Restoration Proposal "
0MARCH%202013_0.pdf (accessed September 1 2013).
Wood and Welker, "Tribes as Trustees Again."
Ibid., 394. (citing, Steve Nadeau, Wolf Conservation and Management in Idaho: Progress
Report 2006 (2007), available at http://www.nezperce.org/Wolf/Idaho_2006_ annual_report-1.pdf
(describing cooperative wolf management effort involving the Nez Perce Tribe, State of Idaho,
and federal agencies); Cooperative Conservation America, Olympia Oyster Restoration Project,
http:// www.cooperativeconservationamerica.org/viewproject.asp?pid=725 (describing a tribal
partnership with the State of Washington, federal government agencies, and private parties); U.S.
Dep't of Energy, Environmental Management: Tribal Programs,
http://www.em.doe.gov/tribalpages/initiatives.aspx (describing tribal partnerships with the
Department of Energy).


opportunity to expand its environmental self-determination. With this expansion,
LTC could eventually create its own natural resource departments and cultural
resource departments, as well as codifying its tribal laws. Many tribes in the
contiguous Lower 48 states have made such strides and so too can Alaskan
tribes.320 One limitation may be the small size of many tribes in Alaska. In that
case, a regional approach may be more appropriate. LTC has already taken the
first step in developing the YKI-TC.

A path forward may be to use this

organization to address environmental and natural resource issues regionally.
There are many instances in the Lower 48, in which tribes have effectively used
this regional approach.321 Such efforts have helped many tribes in the Lower 48
to gain legitimacy with local, state, and federal agencies.322
Finally, while the tribe can try to work around the limitations imposed by
a lack of a land base, ultimately that lack of land is central in the interpretation of
U.S. environmental statutes and federal Indian law. LTC should closely watch
the final determination in Akiachak vs. Salazar.

If the case holds that the

Secretary of Interior has the authority to take land into trust for Alaska tribes, then
LTC would benefit from such a petition.
The case study of the Louden Tribe demonstrated that, although federal
agencies are mandated to work on a government-to-government basis with tribes,


Ibid., 395.
See, ibid., referencing the Inter-Tribal Bison Cooperative, Columbia River Inter-Tribal Fish
Commission, Great Lakes Indian Fish and Wildlife Commission, and the Northwest Indian
Fisheries Commission who all collaborate with federal, state, and county agencies on resource
issues throughout their aboriginal territory.
Ibid., (citing, See 25 U.S.C. § 458cc(c) (2000) (Funding agreements with tribes may “include
other programs, services, functions, and activities, or portions thereof, administered by the
Secretary of the Interior which are of special geographic, historical, or cultural significance to the
participating Indian tribe requesting a compact.”)).


in practice, this does not always occur. While recognition of tribal sovereignty
has not been perfectly implemented by government agencies, it is still a stronger
tool than the environmental justice framework, which could lead to environmental
and sociocultural impacts, as evidenced by the situation in Galena, Alaska.
In God is Red , Vine Deloria, Jr. wrote:
The future of humankind lies waiting for those who will come to
understand their lives and take up their responsibilities to all living
things. Who will listen to the trees, the animals and birds, the
voices of the places of the land? As the long-forgotten peoples of
the respective continents rise and begin to reclaim their ancient
heritage, they will discover the meaning of the lands of their
ancestors. That is when the invaders of the North American
continent will finally discover that for this land, God is red.323
I would assert that is especially true for Interior Alaska; for that land, God is red
and it is just waiting for the “invaders” to recognize it.


Vine Deloria, Jr. God is Red: 451-52.


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