Several years ago, at an environmental justice conference sponsored by the University of Colorado, I put forth the proposition that the environmental justice movement needs Indians more than Indians need the movement. I still think this idea is true. I also said then, and believe now, that the same idea holds true for the mainstream environmental movement. People in both movements can benefit from Indian perspectives, grounded in tribal cultures, on how human societies should relate to the nonhuman, living communities with whom we share this Mother Earth.
On the other hand, just what Indian people get from the environmental justice movement, or from the mainstream movement, seems to be less clear. Indian people and their tribal governments (including non-Indians who work for tribal governments) go about the business of dealing with their environmental issues without very much in the way of support, or even understanding, from people in either environmental movement.
Understanding. That seems to be the hard part. Dealing with any environmental problem affecting a tribal community requires some understanding of federal Indian law and policy, including concepts such as inherent tribal sovereignty, the federal trust responsibility, reserved tribal rights, the broad power of the federal government within Indian country, the limited power of the states, and rules for interpreting treaties and statutes. Indian tribes have the right to be different from mainstream America. Most practicing lawyers regard Indian law as an esoteric specialty that they don't need to know; most non-lawyers seem to have had little information presented to them in classrooms at any level on how Indian tribal governments fit into our American system of government. And during the last quarter-century, the U.S. Supreme Court has issued a number of activist decisions that have the cumulative effect of turning much of Indian law upside down. See David H. Getches, Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream Values, 86 MINN. L. REV. 267 (2001).
There is just no getting around the fact that applying the concept of environmental justice to situations that affect the communities of Indian reservations is tricky. If environmental justice problems are characterized by disproportionate impacts on communities of color or low-income, then almost every environmental issue in Indian country is an environmental justice issue. An observer with some understanding of federal Indian law and policy, and some appreciation for tribal cultures, can find disproportionate impacts.
The nuances of federal Indian law and policy, however, render Indian cases anything but typical. For an introduction to this subject, see my commissioned paper for the Second People of Color Environmental Leadership Summit (Summit II), entitled "Dimensions of Environmental Justice in Indian Country and Native Alaska." (Available at www.ejrc.cau.edu/summit2/indiancountry.pdf.) For present purposes, three kinds of issues tend to arise that are fundamentally different from those faced by other environmental justice communities.
First are what I call "structural disproportionate impacts" resulting from the comparative lack of environmental regulatory infrastructure. The major federal environmental laws are implemented through cooperative federalism in which the states perform prominent roles. Yet when Congress created the first batch of regulatory environmental laws in the 1970s, it pretty much overlooked Indian country. From 1986 to 1990, Congress amended several of the statutes to authorize the Environmental Protection Agency (EPA) to treat tribes like states, an approach that is generally consistent with the status of tribes in our federal system. By the time rules were in place for tribes to pursue this option, however, they were about twenty years behind. Moreover, most tribes do not have the resources to build programs that are comparable to state programs, and resources available through EPA are limited. The practical result-on the ground, in the air, and in the water-is a regulatory system in which many of the pieces are missing. In tribal governments throughout the country, many people have been hard at work for years trying to fashion the missing pieces and build functioning programs. There are many success stories out there that deserve more attention. There is also a lot of work yet to be done.
A second set of issues results from the Supreme Court's recent case law: when tribes do try to build effective regulatory programs, they can expect to be challenged by people who believe tribes should not have authority over them. You can call this a disproportionate impact because no other kind of government in this country is subject to a judge-made rule that certain aspects of sovereignty have been and can be implicitly taken away.
A third kind of disproportionate impact is seen in the ways in which tribal cultures are rooted in the environment. These roots are manifested in material culture (hunting, fishing, gathering, crafts); religion (ceremonies and other practices, oral traditions); and in the ways that Indian people perceive their identities. Activities that damage or destroy sacred places in tribal religions inflict a unique type of suffering on tribal communities. Impacts on tribal religions and cultures are disproportionate by definition-tribal people are affected differently because their relationship to the environment is different.
And this is, as I see it, what non-Indians could gain through better relations with Indian tribes-more appreciation for the ways in which tribal societies understand the relationships between human communities and the rest of the web of life. In my experience, improved relationships require some degree of understanding of federal Indian law and policy, and some appreciation of the tribal right to be different. It would be remiss of me, as a former member of the Indigenous Peoples Subcommittee of the National Environmental Justice Advisory Council (NEJAC), if I failed to note that the NEJAC has helped advance understanding of the environmental issues tribal communities face. There is, of course, much still to be done to promote better understanding.
Now for a limited retraction: as an individual Indian lawyer, I am ready to acknowledge that those of us who are concerned about the environmental issues confronting tribal communities could use some help from people in the environmental justice movement and the mainstream environmental movement. You can help by working on your own understanding of the issues faced by tribal communities, and by encouraging your colleagues to become better informed. These are only first steps, but they are crucial ones.
As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.16-17.