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Environmental codes frustrate landless tribes

Indian Country Today
June 3, 2005
Jean Johnson

PORTLAND, Ore. - Environmentalists and the tribes don't always see eye to eye, but when it comes to the selective way in which the Bush administration enforces the National Environmental Policy Act (NEPA) they're on the same page.

Under President Bush, the Interior Department allows industry to skate through a streamlined NEPA process like it's Teflon-coated. All the while, tribes trying to put together a land base find a strict bar of unbendable standards firmly in place.

NEPA was designed to protect the nation's natural resources by requiring environmental assessments (EA) of any federal projects that have the potential to impact the land. Like any law, though, interpretation is half the battle; and the Bush administration has shown time and again that it favors big business, not the side of groups like landless tribes that have limited funds.

Wrote the environmental watchdog group BushGreenwatch: ''Landless tribes must pay for their own environmental assessments which contributes to a process called 'slow-rolling.' This occurs when the EA is not paid for by the government - thus decreasing the urgency of the project, and lengthening the review process.''

Indeed, an attorney who specializes in Indian law and spoke to BushGreenwatch on condition of anonymity, said ''because the Bush administration is hostile to the idea of Native Americans gaining more land, they have been hiding behind the NEPA process.''

An EA is costly enough, but under the Bush administration after a year or so a tribe is told they need to undertake another step and complete an environmental impact statement (EIS). This lengthy process can cost tribes up to $800,000, according to John Dosset, general counsel of the National Congress of American Indians.

''Completing an EIS can be very difficult for a tribe. It increases the cost and demands a list of alternatives that just aren't feasible,'' Dosset said. ''Basically the EIS asks tribes to consider an alternative to living on a reservation - and NEPA is not meant to do that.''

Dosset's point is well taken. NEPA was designed for projects like timber harvesting, mining and building highway overpasses. The idea was for those involved to consider various alternatives to their project so that should the first option be too excessive, a less environmentally destructive route could be taken. Tribes trying to piece a homeland back together hardly come under this purview.

Conversely, Douglas Kendall, environmental attorney and author of ''Redefining Federalism,'' noted that the Bush administration gives the gas industry a wink and a nod. ''In the context of developing coal bed methane, industry has been very aggressive in using old, irrelevant NEPA studies to get around the full NEPA process of natural gas extraction. It is very disturbing that the Interior Department appears to be selectively using NEPA to frustrate landless tribes and at the same time accommodate efforts to extract resources.''

According to BushGreenwatch, during its first two years the Bush administration presented arguments focused on weakening NEPA in 94 of 172 cases the Interior Department reviewed. During the same period, wrote BushGreenwatch: ''Rep. Richard Pombo (R-Calif.), chair of the House committee studying the NEPA process, has repeatedly criticized NEPA as an overly burdensome process for industry.''

Clearly there's a flap inside the Beltway over environmental policy. That the tribes have been shunted to the periphery is not surprising. What's unfortunate is that those that are weakest bear the brunt of the double standard. ''Landless tribes'': even the phrase has a hollow ring.

That these struggling nations are caught in a NEPA crossfire of technicalities seems somehow beneath the dignity of a great nation that for a time, a least, was interested in resolving tragedies that emerged from a checkered history. The 1960s and 1970s, though, are long passed and the new millennium has brought a conservative swing to the political climate.

Now the question is whether the religious right can find a place in its heart - not to mention its agenda - for all Americans. Allow the laws of the land to function as intended across a wide spectrum of the population. It's quite clear the jury's still out, and that the landless tribes are still waiting.

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