I just had the privilege of attending the National Tribal Natural Resource Damage and Restoration Conference. Hosted by the Saginaw Chippewa at the Soaring Eagle Casino and Resort in Mt. Pleasant, Michigan, the conference was also sponsored by the US Department of the Interior (DOI). Though a member of the Cherokee Nation, I was there for my work, representing the California Department of Fish and Game and giving a talk about crude-by-rail.
There were some good things. First and foremost are the progressive laws that make natural resource damage assessment (NRDA) possible. These federal laws allow the federal, state, and (federally-recognized) tribal governments to essentially sue polluters (e.g. large corporations or sometimes the government itself) to recover not just funds for clean-up but also for compensation—to make the public whole for injuries they’ve suffered from the pollution. Second, the conference brought together about seventeen tribes from around the nation, as well as federal employees that are involved in NRDA. For the most part, these are well-intentioned people seeking to address environmental problems and help the public, including tribes. The conference began with a Grand Entry, a prayer, and a song from the Saginaw Chippewa Snow Birds (below).
There were some bad things. Hanging over the conference was the sad reality that tribes have not fared particularly well in past NRD claims. Government trustees got $18.8 million for lost recreational beach use after an oil spill tarnished beaches for six months in San Francisco Bay, and $10 million for lost recreational boating and fishing after an oil spill tainted the Kalamazoo River for a year or so. But when decades of contamination (PCB’s, oil, cyanide, etc.) from an industrial operation made most hunting, fishing, and gathering impossible on tribal lands for several generations, the tribe got only $8.4 million. They are using the money to create a cultural apprenticeship program, pairing elders with young adults, but the program will run out of funding in just four years. This settlement is considered a success for tribes in the NRDA world. It’s about the best that tribes can do (so far) through this strange legalistic and bureaucratic process.
This poor NRDA record is in keeping with past tribal experience in US courts. This is a community who, to this day, lose hunting and fishing rights (guaranteed in treaties) to fish and game commissions, lose religious freedom to local school boards, and lose their children to child protective services. The Supreme Court ruling that provides the basis for land ownership in the US refers to Native Americans as “savages”. That case still stands as precedent and is referenced regularly by the high court. Naturally, tribes are suspicious of a government program designed to help them. The requirement that they must follow regulations and procedures to benefit from the program is met with the expectation of rejection. At the conference most of the government speakers seemed oblivious to this. They assumed they were there to train the tribes and gave simplistic advice like “read the regulations” and otherwise sought to mold the tribes into the proper bureaucratic shape to be successful. One speaker advised tribal members to take a lengthy course of trainings (ICS 100 thru 800) so they can participate in oil spill response. They seemed unaware that they had waded into turbulent waters, dealing with a community that not only are suspicious and fearful, but have different cultural values and communication patterns. Like two ships passing in the night, the federal speakers cited regulations by the numbers (e.g., CFR 990) while tribal members told personal stories of pain and loss. I was reminded of treaty signing ceremonies in the 1800s, where the legalistic text, difficult reading even for educated whites, was translated (glossing over any controversial items) for the tribal representatives.
Ultimately, tribes do need to be savvy about the NRDA process to make successful claims, and they will need allies among state and federal trustees to do so, but gaps in communication styles and misunderstandings regarding terminology suggest the two sides are still worlds apart. When I suggested that government representatives take time to read Indian Country Today, Native News Online, and local tribal news websites, that they familiarize themselves with the story behind the expression, “The Black Hills are not for sale”, and that federal attorneys read In the Courts of the Conqueror by Walter Echo-Hawk, I was met with blank stares. No one came up to me afterward asking for those references. The conference was at its best when the tribal speakers were at the podium, essentially training the government officials and sharing with each other.
The overall positive gathering was marred by one ugly event. A federal economist, who has no NRDA experience and obviously little background with tribes, cast doubt on the primary economic method that tribes have used to make their claims (never mind that federal and state trustees regularly use far more apples-to-oranges approaches with apparently little objection). Instead, he favored other methods that would ignore the value of sacred sites and force tribes to put a dollar price tag on their cultural activities, both strongly opposed by tribes. He went on to say that he had commissioned a study to explore tribal NRD claims and produce a guidance document to provide instruction for future claims. Several hands immediately went up. Did you consult any tribes in doing this? No, he said. Furthermore, the scope of work is already finalized and out for bid to contractors. At the end of the day, despite good intentions and “listening sessions”, the federal government fell back to a paternalistic approach, rooted in centuries of racism, and embarked on a project to tell the Indians what to do. Suddenly the tribes were wards of the government again. It was not terribly surprising. After all, as recently as 1974, tribes could scarcely hire a janitor without BIA approval. The fact that this proposed study must have gone through several layers of review to get the funding approved, and yet no one thought to involve a tribal representative, is stunning and telling. A member of the Saginaw Chippewa leaned over to me and said he was getting Winona LaDuke involved in this. After all, she has a degree in economics from Harvard. I said, “That’s great” but cast a sidelong glance. He asked, “They do know who she is, don’t they?” “I wouldn’t be so sure,” I replied.