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Lawyers'
Committee Litigates Case Opposing the Operation of Waste
Facility on Tribal Lands
There
are a host of environmental justice issues involving Native
Americans including contamination of fish which some Native
Americans eat as a large portion of their diet; destruction
of sacred sites for development; and the dumping of hazardous
and non-hazardous wastes on Indian lands. Small tribes are
particularly vulnerable to entrepreneurs who seek to dump
waste on tribal lands under the guise of economic progress.
The Lawyers' Committee and the California law firm of Wilson,
Sonsini, Goodrich, & Rosati have been representing members
of the Cahuilla Band of Mission Indian in Anza, California
in an ongoing fight against a waste facility on the reservation.
Several
California businesses persuaded a small number of members
of the Cahuilla Band to bring petroleum-contaminated soils
onto reservation lands. The Tribe subsequently passed an
ordinance which allows only certain types of business purposes
on reservation land and allows only projects which produce
income or benefits for all Tribal members. The income produced
by the land disposal facility on the Cahuilla Reservation,
however, goes not to the Tribe, but rather to a few individual
members.
The
Cahuilla circumstances are not unique in Indian Country.
To understand how situations like these arise, it is important
to understand how land is treated on many reservations and
the role of the Federal government in protecting Tribal
resources. Generally, there is no land ownership on reservations,
rather all lands are open to use by Tribal members with
the Tribal Council generally designating and approving occupancy
of any given spot. Within the Cahuilla and other Tribes,
land "assignments" are made primarily by inheritance,
with lands assigned to a member or family passing down to
future generations.
Under
Federal law, all reservation lands are held in trust by
the Federal government and administered by the Bureau of
Indian Affairs or BIA subject to sovereignty rights given
to the Tribe. As part of the Federal trust relationship
established to protect these lands, "no agreement shall
be made by any person with any tribe of Indians, or individual
Indians...for the payment or delivery of any money or thing
of value.... relative to their lands" without such
contract or agreement being executed and approved by BIA.
25 U.S. C § 81.
Federal
law also provides that any restricted Indian lands may not
be leased by the Indian owners without the approval of the
Secretary of the Interior (BIA). 25 U.S.C. § 415. Lease
approval is conditioned upon a determination by the Secretary
that adequate consideration has been given to the effect
on the environment of the affected lands. Without BIA approval,
no lease or similar legal arrangement for a land use on
Tribal land is effective. 25 U.S. C. § 177.
The
Tribe never approved the lease for the waste facility, nor
did the applicant obtain BIA approval. In 1991, BIA issued
a cease and desist order to stop all dumping of waste on
the reservation. But the BIA never took action to enforce
that order.
Later
that same year, the Cahuilla Band of Indians filed suit
in Federal District Court against the owners of the company
seeking injunctive relief, trespass damages, and an accounting
for income and benefits to defendants. The suit alleged
that the company was engaged in the unlawful dumping of
contaminated soils on reservation lands, without consent
of the Tribe and without a required formal agreement with
BIA. The court ordered an injunction, but before it could
be enforced the parties began discussing settlement, in
which it was agreed that the trespassing operations for
soil remediation would cease. The Court injunction remained
in place against the named parties.
But
the soil remediation operations did not cease. Immediately
after the injunction agreement, the operation changed its
name, and a few tribal members continued the operation.
Changes in membership on the Tribal Council created an inability
to bring another court action, nor obtain formal tribal
approval. The stalemate remains to this day.
In
1998, members of the Tribe approached the Lawyers Committee
to file suit on their behalf to enforce the BIA requirements
for protection of their lands. Representing tribal members,
the Lawyers' Committee bought suit against the waste company
alleging violation of the federal laws which require BIA
approval of any land lease agreement using Tribal lands,
and a requirement that the Tribe approve such lease. No
lease existed, and no approval had been granted. The suit
also names BIA, for its inaction on the environmental assessment
required under the Act. (Heredia v. Perrault, (U.S. Dist.
Ct., Central Dist. of Cal. Case No.: EDCV 98-151 (RT)).
The
complexities of untested BIA law and the sovereign rights
of the Tribe have slowed progress in the trial. However,
the BIA has subsequently agreed with the Lawyers' Committee
and plaintiffs' position, and have served formal notice
to the company that it is in violation of the BIA provisions.
Nevertheless, BIA has still failed to move on its own to
enforce these provisions.
This
case demonstrates the difficulties that Native Americans
still face in protection of their own lands, and their vulnerability
to exploitation even today.
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