The Struggle For Tribal Sovereignty
There’s power in rendering the history of the Indigenous fight for environmental justice and decolonization visible.
Editors note: This is Part 2 of a series around tribal relations in America. Part 1, Every Tribe Has a Wound, discussed the origins and key principles of federal Indian law and the enduring challenges — and violence — tribes face in their fight to achieve sovereignty.
Here we turn our focus towards the history of tribal consultation and what it means for tribes and attorneys advocating for Native American communities today.
M y journey to becoming an attorney was paved with the hopes of helping my community; I hail from the Laguna Pueblo tribe where an open-pit uranium mine plagued the health and livelihood of my people.
The uranium mine brought many changes to Laguna: financial support for mine workers and employees like my grandfather, a shift away from traditions as people took on strict work schedules and financial obligations, and of course sweeping and irrevocable environmental damage to places that were once home to community orchards or clay gathering sites for pottery.
To this day we’re still working to restore our waters and lands. Only time will tell if future generations — including my family and I — will be able to have the same connection to land, agriculture, and ceremony that we possessed before the mine.
While studying at the University of New Mexico, interacting with other Indigenous organizers and environmental justice campaigns and taking classes on Federal Indian law, I fostered dreams of transforming myself into a weapon, a formidable, sharp-witted advocate — think Erin Brockovich or Robert Bilott — that would help my Tribe fight the contamination caused by the mine.
I imagined myself suing fracking and mining companies that threatened sacred landscapes across New Mexico; by the time I graduated from law school however, I realized justice wasn’t all that easy.
Investing myself in the field of environmental law as an Indigenous woman was difficult; I knew the relationship between environmental organizations and Indigenous communities was deeply fraught and riddled with a history of racism.
And on top of a painful history, when there is an environmental victory — whether it be a lawsuit or a rule change — it’s usually temporary. Our lands in the U.S. are not subject to strict protections, but rather regulations that can be — and are quite frequently — easily steamrolled by corporations.
Take the Dakota Access Pipeline for example; protests received more publicity and support than any anti-pipeline protest in history.
That victory was promptly reversed once President Trump took office. As long as the U.S. Army Corp of Engineers dots the i’s and crosses the t’s in drafting the Environmental Impact Statement under the National Environmental Policy Act, the pipeline will move forward.
For the Line 3 Pipeline in Minnesota, over 900 water protectors were arrested, many of who still face felony charges. Protests over the past couple of years spurred states to enact anti-protest laws that slam protestors with jail time for even minor infractions.
This paradigm is all too common; small communities typically don’t stand a chance against the millions of dollars that corporations can funnel into fighting against land and water protections.
SEEDS OF DOUBT AND DETERMINATION
As an attorney, you are ethically and legally bound to uphold this legal system, a legal system that is often unfair and deeply flawed. Much of the unfairness stems from the paternalistic relationship between tribes and the federal government, a relationship that demands control over tribes’ resources.
Despite these seeds of doubt, I was committed to the cause; in the search for my first job I bore witness to young women who as attorneys recognized the law’s limitations and fought admirably for their clients. One of these women was Geneva Thompson, now Assistant Secretary for Tribal Affairs at the California Natural Resources Agency and a UCLA Native American Law Student Association alumni..
A semester before I graduated, I was still jobless. My roommate suggested I apply for a fellowship, but I had no idea what my project would be. Then I remembered that Geneva was working for the Yurok Tribe.
I also knew that the Yurok Tribe was a leader in environmental justice and using tribal law and sovereignty to protect our earth. I applied for a fellowship to work at the Tribe, and with Geneva’s help, I got accepted.
What a perfect arc from law school into my legal career, finally manifesting the abstract.
The Yurok Tribe’s accomplishments were impressive and varied — including the decision to grant the Heyhl-keek ‘We-Roy (the Klamath River) legal personhood in order to grant the River with the same rights as a person or a corporation.
I felt the power in writing letters to government agencies voicing the tribes’ demands in protecting vital cultural and environmental resources/relatives, in pushing back against centuries of oppression and voicelessness. Even as I recognize the system is deeply flawed.
My peers swimming in the waters of community organizing for Indigenous communities often say that their greatest motivator — bittersweet as it may be — is knowing that although they will likely never see the full culmination of their struggles for justice in their lifetime:
The struggle — and possibility of liberation — will always live on in the next generation.
—A BRIEF TIMELINE OF PROTECTIONS—
1966
Tribal consultation is included in the National Historic Preservation Act (NHPA) — signed by President Lyndon B. Johnson — under Section 106 of the NHPA which requires federal agencies to consider the effects on historic properties or cultural resources of projects they carry out, assist, fund, permit, license, or approve throughout the country.
If an effect on a historic property or cultural resource is identified, federal agencies must consult with tribes prior to making a decision. Despite the enactment of NHPA, consultation served as little more than a heads up to a tribe that a project was underway — with or without their consent — and tribes’ concerns were largely ignored.
1978
The American Indian Religious Freedom Act (AIRFA) is signed by President Carter, aimed at protecting Indigenous peoples’ religious freedoms and calling on federal departments and agencies to evaluate their policies and procedures in consultation with Indigenous traditional leaders.
AIRFA acknowledges prior federal infringement and the denial of our First Amendment right of “free exercise” of religion.
1996
The substance and spirit of our current consultation practices emerged within the Clinton era, where the Executive Order 13007 Indian Sacred Sites directed federal agencies to accommodate access to and ceremonial use of Native American sacred sites by Native American religious practitioners, as well as avoid adversely affecting the physical integrity of such sacred sites.
2000
Just a few years later Clinton issues Executive Order 13175 Consultation and Coordination with Indian Tribal Governments recognizing tribal rights of self-government and tribal sovereignty — and commits the federal government to working with Native American tribal governments on a government-to-government basis.
2013
In March 2013, the Executive Office of the President — under Obama — releases a handbook to integrate the National Environmental Policy Act (NEPA) of 1970 with the Section 106 NHPA process. From this point, states followed suit with political pressure from tribes to require consultation between tribes and state agencies on state-funded projects.
2014
California enacted AB 52 in 2014, which in many ways mirrors the Section 106 process for tribes. While this slow evolution is welcome, it is equally important to recognize how weak the consultation process is. There is no requirement to reach an agreement or obtain consent with tribes, for example.
The burden is also placed on tribes to “make the first move” in consultation by reaching out to agencies to request consultation — according to Section 21080.3.1 (b) of the California Public Resources Code (where AB 52 is codified, in part) if tribes do not ask agencies to consult on projects that are in the geographic area that is traditionally and culturally affiliated with the tribe, there is no requirement for the agency to consult with a tribe before moving forward on that project.
For tribes who have little capacity and resources to engage with state agencies, many projects that deeply impact cultural resources or damage their lands slip through the cracks.
Many tribes view the way California and local agencies engage with tribes as akin to being checked off on a to-do list.
In 1987 for example, The United States Forest Service was considering timber harvesting and building a paved roadway that would cut through the Chimney Rock area of the Six Rivers National Forest. A study commissioned by the Forest Service for the Environmental Impact Statement concluded that constructing a road:
“…would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian Peoples.”
Regardless of this, the Forest Service went ahead with construction and the Tribes sued.
And despite arguing AIFRA strengthened a first amendment claim, the Tribes lost the case. Justice Sandra O’Connor wrote:
“Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”
Couched within these words is every colonizer’s favorite doctrine, a dark shadow that permeates the nation’s history. It’s the blinding axiom that started it all — we discovered, we won, you lost. It’s made even more bitter given the hopes and promises made by AIRFA.
Month after month we see tribal nations being forced to protest projects that would destroy their way of life, whether it be a pipeline, a telescope, a logging project, fracking — the story is always the same.
THE NATURE OF CONSENT
Pushing for adherence to tribal consultation requirements under state and federal law is obvious, but many tribes cite the “free prior and informed consent” standard as the ultimate goal of tribal relations.
Free prior and informed consent, or FPIC, is a specific right that pertains to Indigenous Peoples and is recognized in the United Nations Declaration on the Rights of Indigenous People. It allows tribes to give or withhold consent to a project that may affect them or their territories.
Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored, and evaluated.
This can be extremely important for tribal nations in countries such as Brazil, Guatemala, and El Salvador where international corporations (and in some cases the US government) have exploited and impoverished lands to the point of near decimation for Indigenous communities.
International law stipulates governments must consult with communities before a project is slated on or near their Indigenous territory, and these efforts must be accompanied by the objective to ‘achieve agreement or consent’ about those plans.
But this is rarely the reality.
“What happens up to now in the consultation, first, they always do it wrong, but also, it is understood only as a mechanism to give information,” says Lisa Espinosa, senior attorney with Amazon Frontlines, the environmental NGO that has been supporting the communities with their lawsuits.
“If the community says no or says yes, it doesn’t matter because the consultation is not binding, the consultation is merely an informative act.”
Tribes today also want state recognition that tribes are extremely good at stewarding land and protecting biodiversity. Tribes would be invaluable as partners at the table of climate adaptation planning. Incalculable environmental disasters and harm could have been prevented if tribal expertise had been brought in.
CALIFORNIA AND ‘LAND BACK’ MESSAGING
State agencies are working to develop consultation policies and stick to them — in fact, California is developing tribal engagement strategies that encourage participation at every level of planning processes around natural resources — including wildfire management, ocean management, and climate change.
Like the federal government, the level of state commitment to developing a positive relationship with tribes can change depending on the administration.
At the Yurok Tribe, we are pushing towards co-management, co-ownership, and land return whenever we get the opportunity. Sometimes California is willing to commit to unprecedented levels of reparations and protections and consistently moving the needle towards justice, but ultimately we’re at the whim of the State’s politics.
We also know that too much “Land Back” messaging may trigger conservatives to retaliate. California is leagues ahead of other states, so it can be difficult to see what lies ahead for other tribes hoping to make similar requests in more conservative states.
THE IMPORTANCE OF EXERCISING SOVEREIGNTY
For centuries the only goal has been the survival of the tribe. So, it’s revolutionary and inspiring to see the Yurok Tribe innovate in environmental protection and advocacy on top of its constant challenges.
For example, the creation of the Rights of Heyhl-keek ‘We-Roy ordinance, which allows the Tribe to enforce its environmental laws on a number of off-reservation, potentially non-tribal polluters.
Or the environmental enforcement program which involves exercising more authority across the reservation and working at the community level to increase education on proper waste disposal, pesticide use, water usage, etc.
// Bureau of Land Management
Historic gold mining and unregulated logging industries devastated the ecology of the Klamath Basin. Every year, the Tribe’s world-class Natural Resources Departments and the Yurok Tribe Construction Corporation restore several miles of fish habitat concurrently with hundreds of acres of forest.
The Tribe’s work on food sovereignty programs — developing kitchens, harvest areas, and gardens that increase access to traditional foods — attempts to undo the damage of colonization on the Tribe’s traditional way of life, but will require more lands and resources.
The Tribe has also bought back land from timber companies with the intent of restoring habitat and making it an area for the tribal community to use. While the land transfer is completed, the Tribe is developing co-management and collaboration agreements with both state and federal agencies, leading efforts to revitalize condor and marten populations to ensure these culturally important species continue to exist for generations to come.
Clashes with the federal government and state, especially when it comes to natural resources and Hehyl-Keek ‘We-Roy, are inevitable and doomed to repeat in an endless loop unless humanity as a whole radically changes the way we relate to the earth.
Consultation — and pushing for a decolonial (or anti-colonial) approach to consultation — is just one advocacy tool for tribes to protect their lands.
The relationship tribes have to the federal government is deeply rooted in violence and as tribal nations, we’re expected to coexist with a legal system that upholds and sanctions our continued oppression.
Should tribes accept the protections that federal and state laws offer? Can we in good conscience rely on legal systems while fighting to retain independence from them?
These are questions that tribes will have to continue to answer for themselves. Coexistence will continue to be fraught until all generations of our people come together to resume our birthright as caretakers of this land.
Tribes need to utilize any tools that we can to achieve this and I am deeply grateful to be able to learn about different forms of advocacy and justice for Indigenous peoples from my work with the Yurok Tribe.
What I admire the most about the intergenerational work the Yurok Tribe has done and continues to do, is how the Tribe serves as a model for government-to-government relations and environmental policy; I hope other tribes can follow the Yurok Tribe’s example in partnering with the state and federal government without sacrificing their values.
Growing up, I often sensed (unwarranted) shame and pain that prevented some elders and older generations from talking about the uranium mine at Laguna and all it has done.
Yet more and more in conversations with young people from Laguna, I feel a deep hope burgeoning inside me at their commitment to openly talking about the mine’s effects and what we can be done for our community.
As activist and indigenous author Lee Maracle wrote in I Am Woman: “The result of being colonized is the internalization of the need to remain invisible.”
As my advocacy continues to evolve and grow, I aim to bring power to tribal communities and render the history of Indigenous struggles for environmental justice and decolonization visible.
I hope to take up work that was started long before I was born, advocating for Laguna’s people, water and land, making the struggle — and our hope — visible and powerful for future generations.
From seminal TV shows like ‘Reservation Dogs’ to Deb Haaland (also a Laguna Tribal member) being appointed Secretary of the Interior, Indigenous people in the United States are more visible than ever.
Tribes must capitalize on this moment and support not just their own efforts but the efforts of Indigenous nations around the world to make material changes by reclaiming all that comes with sovereign nation status. All that comes with our struggle.
