The bond between man and the environment has been a tenuous one, though indigenous peoples around the world seem always to have had a greater respect for the land that fed, clothed and housed them. While that relationship has long since been diminished by any number of external forces, the land is still vital, perhaps more now for economic reasons that utilitarian ones. Perhaps in this century they are one in the same. For our country’s Native American population, there is still the strong desire to strike a balance between spirituality and economy. By returning to productive use the contaminated areas they have inherited, they are reestablishing that bond.

The history surrounding the northeastern branch of Washington State’s Columbia River is as rich as the metals littering its bottom. For several millennia, its waters supplied indigenous explorers with an abundance of salmon while serving as a trading route and cultural hub for thousands traveling throughout the Pacific Northwest.

Follow the river up-stream and eventually you’ll reach the idyllic Canadian town of Trail. With a population of 7,575, it is home to professional athletes, politicians and CEOs.

It is also home to one of the largest smelting plants in the world, Teck Cominco (TCM).

For nearly a century, the metal manufacturer used the Columbia River as its own personal disposal, dumping contaminated waste into the riverbed. Generations of slag and mercury migrated downstream across the U.S. border, seeped into the water supply and deposited on the beaches. The supply of fish upon which tribes depended for generations was now tainted with lead, mercury and other pollutants.

Nestled between two tribal reservations, the town of Trail, a popular tourist attraction, is still at the center of a heated legal battle between TCM on the one side and the Confederated Tribes of the Colville Reservation (Confederated Tribes) and the State of Washington (State) on the other.

Turtle Mountain Community College brownfields job training class in North Dakota.

The battle to clean up the Columbia River continues to rage some five years after the U.S. EPA initially issued a unilateral administrative order to TCM, directing the company to investigate the nature and extent of its contamination.

“In 1999, the Confederated Tribes petitioned the EPA to do a preliminary assessment of the river under CERCLA. EPA issued an order to TCM after negotiations between EPA and TCM broke down,” says Richard Du Bey, an attorney with Seattle law firm Short Cressman & Burgess PLLC, who serves as Special Environmental Counsel to the Confederated Tribes.

Because TCM's smelter was across international lines, the corporation felt that it didn’t have to adhere to the EPA order. So the Confederated Tribes pleaded their case to the Department of Justice. When the DOJ decided not to pursue it, two tribal members quickly filed a citizen’s suit against TCM under the Superfund statute in the U.S. District Court for the Eastern District of Washington.

A judge found TCM responsible, issuing a scathing 21-page opinion. After two failed appeals, the corporation decided to take the case to the Supreme Court.

On Jan. 7, 2008, the Supreme Court rejected the corporation's request for review, letting stand the 9th Circuit Court of Appeals’ decision.

“Our work will now be in the trial court to move forward with the litigation and implement TCM's legal obligation to make sure that the legacy site is addressed,” says Du Bey, who has spent  27 of his 32-year legal career helping tribal governments assert their inherent sovereignty.

In recent years, more tribes have begun to take charge of cleaning up contaminated sites on lands which they often inherit from the federal government. The tribes work with the EPA to set up brownfield response programs, creating their own acts and ordinances to work in conjunction with tribal law. For all intents and purposes, it is a co-op agreement between tribe and agency; the EPA provides oversight and steps in when necessary.

“Tribal environmental staff regularly have to wear several different hats, and the commitment of resources and amount of time allocated to any specific project may well be dependent on available funding sources,” explains Du Bey. “By creating their own environmental regulatory programs, tribal governments can protect the health and resources of all people who reside or do business within the reservation environment and build credibility between members and nonmembers.”

The geography of Indian reservations varies across North America, ranging from extremely rural locales to more urban areas. For tribes that have recently acquired contaminated land, receiving redevelopment assistance can be a bit tricky depending on where they’re located.

Except in rare instances, the federal government is no longer creating Indian Reservations, so the reservation landbase is a significant focal point, says Du Bey, and the presence of hazardous substances imposes a significant and disproportionate burden on the tribe.  

He believes that other states could benefit by following Washington’s lead in developing government-to-government partnerships with tribal communities. Learning the history of the actions taken by states to develop and implement regulatory programs has allowed tribes to learn from states' experiences and shape the tribal programs to meet their specific needs.  

 “There’s ample opportunity for cross-training, and the mutually respectful approach followed by the Confederated Tribes and the State of Washington is definitely a model that can be achieved in other states,” he maintains.

For over 15 years, Oklahoma’s Inter-Tribal Environmental Council (ITEC) has been doing just that. Made up of 41 member tribes scattered across Oklahoma, New Mexico and Texas, the ITEC provides technical support, training and other environmental services. Environmental Specialist Bobby Short of the Cherokee Nation says that one major difference between Oklahoma tribes and those in other states is land designation; instead of reservations, they have territories, which makes issues like land ownership harder to figure out. Since his tribe owns a lot of land that isn’t in trust, they have to follow state rules while developing cleanup standards for the land that has been put in trust.

“We look more into preserving our cultural heritage,” says Short, who has been with the Cherokee Nation for over 15 years. “We look at the buildings we want to preserve—mostly old government buildings like courthouses—and decide what to do. We have to be the implementer and developer of everything. We play all parts.”

The tribe is currently wrapping up a remediation project on the 119-acre Marcoma property, formerly home to a large Bible academy, with plans to redevelop it for commercial and industrial use, as well as a senior center. The land has a total of eight contaminated buildings.

“It’s prime property and we have lots of ideas for it, including one for a middle school,” says Short, who works with a staff of 40. “That’s where the male seminary used to be located and that’s one of the reasons the tribe wanted to purchase the property.”

Courtesy: Library of Congress

Native American ploughing the land.

Most of the buildings they receive from the government are riddled with lead paint and asbestos contamination—which aren’t covered under the Superfund program—so many of them still remain untouched. Another problem? The lack of private sector interest, an issue Mickey Hartnett of the Midwest Assistance Program (MAP) also finds troublesome.

“Trying to drum up interest in redeveloping these sites is hard because we’re talking about remote areas that aren’t near major cities, so there’s not much incentive for folks to retrofit these areas,” says Hartnett, who works with tribal response programs in four states, including Wyoming. “Property ownership issues are unique. Reservations have checkerboarding, which is when one large area may have different statuses for certain parts of the land. It could be tribal trust, private ownership or government—even fee land, where people live and work on land they lease.

And even when the developers come, adds Hartnett, they are soon discouraged by the lack of organization.

“Only thing worse than a bureaucracy is no bureaucracy at all,” he quips. “For towns, you can go fill out forms for stuff. Tribes don’t have that infrastructure. There’s no department of deeds or permits because there are no records. Tracking down ownership is difficult.”

Hartnett believes developers need to be more patient, as tribes work to get permit infrastructure in place.

“A lot of times, developers and investors have no clue how to work through the maze of ownership, but there are tremendous opportunities here,” he says, pointing out that a number of businesses are working well in remote locations. “People just have to learn a different set of game rules.”

This also means being sensitive to religious and cultural concerns as well. Hartnett tells the story of a reservation that received a brownfield grant for an old Catholic school that—though structurally sound and capable of being renovated—held painful memories for some of the older members who could recall being taken from their homes and forced into “English Only” reservation boarding schools. They just wanted it razed, much to the chagrin of the younger members who saw an opportunity for a new center.

And then there’s the matter of old, open dump sites and community landfills, a problem not unique to reservations, but one they’ve only recently begun to deal with.

MAP recently received a three-year $300,000 grant from the EPA to develop a national training program for tribes that will focus on solid and hazardous waste disposal; Cherokee Nation is working with them to create a methamphetamine lab component—another pressing issue for tribes looking to limit the number of places manufacturers dump waste. But according to a recent DEA report, meth busts in tribal areas are on the decline.

Hartnett adds that MAP is also in the process of setting up roundtable discussions with a number of tribes at the Brownfields 2008 conference in Detroit this spring. The roundtables will focus on the development of more tribal response programs.

Taking a more hands-on approach to tribal brownfields is the best plan of action, Hartnett believes. No one knows the land better than the members, and performing assessments or conducting interviews are tasks that would be harder for someone 200 miles away.

“The majority of cases must be dealt with by tribal programs, because Superfund doesn’t apply,” says Hartnett. “If they don’t do it, it won’t get done.”