When the United States Exploded Nuclear Bombs on Native American Land

While Martin Scorsese’s new historical crime drama Killers of the Flower Moon has been garnering media attention and sparking discussion about its depiction of Native Americans, there’s another widely acclaimed blockbuster from this year with a surprise connection to Native history: Oppenheimer. The film depicts the life of physicist J. Robert Oppenheimer and the development of the atomic bomb at the Los Alamos Trinity test site in the New Mexico desert. But not shown in the movie is the effect that dropping the bomb had on the surrounding, largely Native American community.

The detonation of the first atomic bomb at Los Alamos had disastrous consequences for the health of the people living all around the test site. The “downwinders” (a moniker derived from living “downwind” of a nuclear test site) of the Tularosa Basin in New Mexico have suffered from the debilitating effects of radiation for decades. After the blast, the fallout rained down on homesteads and dwellings, contaminating crops, livestock, and drinking water. The Mescalero Apache in the area along with other downwinders have experienced extraordinarily high rates of cancer and leukemia since the testing was conducted.

The story of the Tularosa Basin is far from the only episode of nuclear contamination affecting a Native community. Because the American Southwest was the ideal location for nuclear testing during the Cold War due to its “remoteness,” the U.S. federal government has subjected other Native communities to nuclear fallout and radiation. For over 40 years, the federal government detonated more than 900 nuclear bombs on the territory of the Shoshone Tribe. Shoshone Tribal members have experienced high levels of exposure to fallout and radiation, and consequently very high rates of various forms of cancer. The Shoshone are arguably “the most bombed nation on earth.”

The United States has never made an adequate remedy for the effects of radiation it inflicted on Native communities in the American Southwest. While Congress passed the Radiation Exposure Compensation Act (RECA) in 1990 in an effort to mitigate the flood of litigation arising from claims around nuclear radiation, RECA has suffered from numerous flaws. RECA never applied to nuclear testing victims in New Mexico, meaning that the Tularosa Basin downwinders were never able to obtain the compensation that the Act was intended to offer. Worse, RECA is about to expire, which would deprive many who have suffered from cancer of any recourse.

The United States has also never established a health registry to monitor cases of individuals suffering from nuclear testing radiation in the American Southwest. These registries can be found in other parts of the world with high exposure to radiation from testing, attacks, or nuclear accidents, such as Kazakhstan, Japan, or Chernobyl.

To make good on its obligations to Native American communities, the U.S. federal government can undertake a number of policy solutions. First, Congress should extend RECA to ensure that victims of nuclear test fallout and other causes of radiation can continue to obtain compensation. Second, Congress should also extend RECA’s provisions for test victims to other parts of the American Southwest including New Mexico to cover the Tularosa Basin downwinders and others. Third, the government should establish a health registry to monitor cases of cancer and other health problems deriving from nuclear radiation and fallout. Finally, the federal government should issue an official apology to all the victims of nuclear testing. All these steps are crucial for remedying the suffering that the government inflicted on Native communities in its pursuit of nuclear hegemony.

Beyond federal policy action, courts should look at potential judicial remedies for Native communities that wish to bring litigation for the harms they have suffered. While there have been many suits bringing torts claims for health-related problems, Tribes have other potential legal options, if courts are amenable. Since the federal government holds land for Tribes “in trust,” they can sue for a breach of trust if the United States has violated its duties in the administration of the land. Because nuclear testing exacted such a catastrophic toll on reservation land and compromised agriculture, livestock, and potable water, an argument could be made that the United States has violated duties to ensure the land is usable.

Tribes could also bring a “takings” claim under the Fifth Amendment to the U.S. Constitution. The Fifth Amendment prohibits the taking of private property “for public use, without just compensation.” While takings claims usually refer to the outright confiscation of land, they can also include instances where the government effectively deprives someone of the use of their land. Since nuclear testing contaminated so much Tribal land in the American Southwest, there could be a viable argument that this land was effectively taken. Tribes have brought successful suits for takings before. There have also been numerous takings lawsuits over nuclear tests conducted in the Marshall Islands. Marshall Islanders are another community that has suffered historically from nuclear testing by the U.S. government. These suits have even come under the Tucker Act, which allows for suits against the federal government for monetary damages and is used by Native American tribes in other contexts.

Whether the ideal remedy for the enduring health crises caused by nuclear testing is to be found in Congress or in the courts, their effects on Native communities must be addressed. When Tribes entered into treaties with the federal government, it took on a series of obligations, at best to help ensure the needs of tribes are met, but at least not to inflict massive harm. The harm that began with the detonation of the very first nuclear bomb at Los Alamos over 75 years ago still demands a remedy.