FFERDC Implementation in Indian Country FFERDC Implementation in Indian Country

[Aimee Houghton <aimeeh@igc.org>]

Implementing the Recommendations of the Federal Facilities 
Environmental Restoration Dialogue Committee in Indian Country: 
Lessons Learned

Mervyn Tano
Tano & Associates
444 South Emerson Street
Denver, CO 80209-2216

San Antonio, Texas
March 5, 1997

"The Indian System mirrored the basic drives of American society--
social mobility, the acquisition of wealth, unrestricted capitalism, and 
political activism. It was a pathway to power and wealth for the 
ambitions, closely allied to the struggles for power and influence in 
newly formed territories and states. It was also more important to the 
government in Washington than historians have generally realized 
because those regions were on the cutting edge of economic 
development and population migration. It served some groups 
extremely well--politicians, claimants, traders, contractors, and 
agents. Indian removal and its attendant activities had always been 
initiated to serve the needs of European Americans, not the needs of 
Native Americans. 'It produced a system of, by, and for white 
men.'"
Nichols, David A., "Lincoln and the Indians: Civil War Policy and 
Politics," University of Missouri Press, Columbia, 1978, pp 23-24. 
(emphasis added)

"There is a very good reason why the appropr_iations for the Indian 
service should increase. We have been opening and settling a large 
tract of country, rich in mineral wealth. In the territory occupied by 
the Indians the American people are now digging out millions and 
hundreds of millions in gold every year. The enterprise of the 
American people drives them into such places. They go into the 
fastness of the mountains and find gold there, and they enrich the 
nation by it."
U.S. Congress, Senate, Congressional Globe, "Debate on the Indian 
Appropriation Bill," 37th Congress, 3d sess., 25 February 1863, pt 
2:1281

Introduction

For over ten years now I have been working with Indian tribes and 
Alaska Natives to advise them on how best to identify and protect 
tribal interests affected by the federal facility environmental 
restoration activities carried out by different federal agencies. I have 
worked with the tribes of the pacific Northwest and the Southwest on 
the cleanup of the nuclear weapons complex and with tribes 
throughout the United States on Department of Defense 
environmental restoration projects. I have worked with the DOD to 
help design their tribal environmental restoration programs and with 
the Department of energyUs Environmental management Office to 
facilitate tribal participation in environmental technology development 
and clean-up programs. And for what seemed like an eternity, I 
labored on the Federal Facilities Environmental Restoration Dialogue 
Committee with Sam Goodhope, Ross Vincent, and Aimee 
Houghton and other participants of this conference.

The recommendations of the Federal Facilities Environmental 
Restoration Dialogue Committee were intended to lay a foundation 
for cooperative relationships' and partnerships between stakeholders 
and federal facilities managers to ensure cleanup decisions protect 
human health and the environment and reflect the values of the 
affected communities. My concern as a member of the FFERDC was 
to ensure that the report encouraged federal facilities managers to 
recognize that their cleanup activities presented employment 
opportunities for tribal members and for other business and 
institutional participation in all phases of the federal facility cleanup 
program. My concern was triggered by the history of the U.S. 
programs in Indian country--a history that palpably demonstrates the 
accuracy of David NicholsU characterization of the Indian System of 
the 1860's--and to prevent us from repeating that history in the 
1990's. Please don't misunderstand me. By no stretch of the 
imagination am I suggesting that we will again smell the stench of the 
corruption and fraud that permeated the Indian System in 1860. 
What I am suggesting, though, is that I see today in the Department 
of Defense federal facilities environmental restoration programs the 
same sense of cultural and racial insensitivity, the same cronyism, the 
same ignorance of Indian tribes and their institutions, the same view 
of the Indian, not as a coequal, by as an inferior and an opportunity 
for exploitation and profit that characterized the Indian Service in the 
1860's. Tribes don't get barrels of rotten beef or shoddy blankets 
today--they get administrative convenience which generally means 
the Department of Defense will arrange for non-Indian, non-tribal 
contractors to provide services to Indian tribes that could otherwise 
be provided by the tribes themselves or by tribal organizations or 
tribal institution. Tribes today are not under attack by miners and 
farmers--instead they get the perpetuation of paternalism and 
dependency the long-term effect of which can be just as pernicious.

First Steps

So how do we avoid repeating the errors of the past? It seems to me 
that the only way that federal facilities managers can begin to 
implement the recommendations of the FFERDC in Indian country is 
for them to gain an understanding of the exactly what an Indian tribes 
is. Briefly stated, Indian tribes in the United States are semi-
dependent sovereign entities with much of their inherent powers and 
authorities over their lands and people intact. Tribes are landowners 
and can accordingly control and condition access to their lands. 
Besides their inherent powers and authorities tribes have been 
delegated powers by the United States to regulate air, water and other 
environmental resources. Tribes are also possessed of treaty rights 
and are the beneficiaries of the federal-Indian trust relationship.

Protecting and Enhancing Tribal Sovereign Rights and Authorities

Understanding then that tribes are not only social, economic and 
cultural entities but governmental entities as well, the foundation 
principle of any federal agency partnership with Indian tribes is that 
every activity undertaken as part of the partnership should either 
protect or enhance tribal sovereign rights and authorities and never 
undermine such prerogatives. While this principle should be an 
obvious part of the approach of anyone working in Indian country, 
the fact is that it often eludes federal agency and contractor personnel. 
For example, it often never occurs to federal staff to look to other 
federal or state statutes and regulations for permitting and other 
environmental protection requirements for cleanups in Indian 
country. And in the off chance they do look to tribal law and 
regulation, they will fall back to state and federal regulations if tribal 
regulations are not exactly on point. This is, of course, the 
administratively convenient way out. And for at least the short term, 
it is also more efficient and economical. However, I would argue 
that this sort of administrative convenience is destructive of tribal 
sovereign rights and authorities and violative of the federal-Indian 
trust obligations. A much better tack is to work with the tribe to 
promulgate tribal regulations or, if the federal or state regulations are 
acceptable to the tribe, to help the tribe adopt the requisite federal or 
state regulations by resolution.

Is what I suggest administratively inconvenient? You bet. Does it 
add costs to the project? Undoubtedly. But I maintain that this is the 
price you pay for being an agent of the federal trustee. These are the 
costs of maintaining a government to government relationship with 
Indian tribes.

Take and Expansive View of "Tribal" Involvement

I suggest that the second means by which the Department of Defense 
can implement the recommendations of the FFERDC in Indian 
country is to take an expansive view of exactly what constitutes tribal 
involvement.

At one time or another I have been asked by federal agency personnel 
one or more of the following questions:

* Which tribes or tribal institutions should be involved in DOD 
 environmental restoration activities?
* When should such tribes or institutions be involved?
* What should be the scope of such involvement?

My responses are: as many as possible; as soon as possible; and, as 
much as possible. Believe me, I am not being flippant. Too often 
federal facility managers take too narrow a view of tribal 
involvement. In many instances tribal involvement is defined in 
geographic terms. You would of course involve the Oglala Sioux in 
the environmental restoration of the Bad Lands Bombing Range 
because the facility lies within the borders of the Pine Ridge Indian 
reservations. But given the scope of the work involved there, there 
is no reason not to involve other tribal organizations or institutions 
that can provide the support services that non-Indian organizations 
will be providing. Taking an expansive view of tribal involvement 
acknowledges the reality of the inter-relationships between and 
among different facilities and the enormous national and international 
networks of researchers, contractors, educators, manufacturers and 
service providers that have developed to address the myriad issues 
related to the cleanup of federal facilities. Contractors and 
universities are not limited in their federal facility environmental 
restoration work to the state in which they're headquartered. Why 
should the tribal construction company, college, or environmental 
remediations trainer be?

Tribal involvement in environmental restoration programs should be 
like voting in Chicago--early and often. Let's take tribal involvement 
in environmental remediation technology development as our 
example. A bad example is involving the Confederated Tribes of the 
Umatilla Indian Reservations in Cleanup of the Umatilla Depot after 
the decision to use incineration technology has already been made. A 
good example is working with the Oglala Sioux Tribe to test new 
UXO technology on the Bad Lands Bombing Range. A better 
example is the Office of Science and Technology in the Department 
of Energy working with a tribal group to come up with tribal 
technology acceptance criteria to guide environmental remediation 
technology development.

Addressing Tribal Information Requirements

The third means of implementing the FFERDC recommendations in 
Indian country is to appropriately address tribal information needs. 
One of the tribal advisory groups I have been working on some 
Department of Energy projects stated that a common impediment to 
tribal involvement in decision-making is that federal agencies often 
do not understand how to present their information about their 
environmental remediation technology and services in a way that is 
compatible with tribal needs, interests and perspectives. Federal 
agencies are a source of massive amounts of newsletters, technical 
reports and other information. However, you should realize that 
information without context is not communication nor is it education. 
 Providing that context requires you to know what tribal needs, 
interests and perspectives are. Again it is administratively 
inconvenient and time-consuming for you to educate yourselves on 
tribal interests, concerns and priorities to design and execute 
appropriate tribal communications strategies. But if you don't 
provide that context, the information you send out is just so much 
paper.

Follow the Leaders

Fortunately, there is some genuine leadership in this arena being 
exercised by other federal agencies, particularly the Office of 
Environmental Management in the U.S. Department of Energy. EM 
has negotiated separate agreements directly with a dozen tribes and 
tribal organizations to build the systems and programs required to 
support knowing and informed tribal participation in a wide-range of 
activities related to support cleanup of the nuclear weapons complex. 
The Department of Energy promulgated an Indian policy which 
recognized the government-to government relationship between DOE 
and Indian tribes. Accordingly, EM does not use contractors or other 
intermediaries to provide services to the tribes--it "contracts" directly 
with tribes and tribal organizations. For example, it is the Nez Perce 
that has authored the Briefing Book for Tribal Decision-Makers on 
Weapons-Usable Plutonium Management and Disposition. It is the 
Confederated Tribes of the Umatilla Indian Reservation that has 
developed tribal risk assessment models. It was the Council of 
Energy Resource Tribes that put together a Tribal handbook of 
Defense Activities and for two years conducted a series of regional 
workshops on these issues. It was again the Nez Perce Tribes that 
published the guide to the wildlife on the Hanford Reservations and 
that developed an technology acceptance matrix for tribal decision-
makers. Other tribes and other tribal organizations have produce 
similar work. All of this work was done by tribes and tribal 
organizations with DOE support because the Department of Energy 
takes seriously the recommendations o the FFERDC and its treaty 
and trust obligations. I had hoped I could say the same thing about 
the leadership at the Department of Defense, but I can't. There are 
some very good people in the Department of Defense, but there are 
others who appear to make the decisions that either don't 
acknowledge their duty to carry out DOD's treaty and trust 
obligations or the recommendations of the FFERDC or are willing to 
use administrative convenience as the cover for perpetuating tribal 
dependency. So instead of establishing direct relations with the 
Oglala Sioux Tribe, the Walker River Paiute Tribe, the Confederated 
Tribes of the Umatilla Reservations, the Council of Energy Resource 
Tribes and National Tribal Environmental Council to carry out a wide 
range of environmental restoration activities and programs, the 
Department of Defense will be contracting with Booz-Allen and 
Hamilton, TSI, EG&G and other large, non-Indian firms to service 
Indians. So instead of building tribal capacity and expertise in 
technical arenas, the tribes will be enhancing DOD contractor capacity 
to work with tribes and other indigenous peoples making them even 
more qualified to maintain the status quo. Perhaps Indian country 
will be cleaned up, but unless the folks in Environmental Security 
change their ways, as in the Senate report above, non-Indians will be 
cleaning up a lot more.