Federal energy policy and two Indian nations

Material Information

Federal energy policy and two Indian nations
Wilson, Daniel James
Publication Date:
Physical Description:
vi, 333 leaves : ; 29 cm


Subjects / Keywords:
Apache Indians -- Government relations ( lcsh )
Cheyenne Indians -- Government relations ( lcsh )
Energy policy -- Social aspects -- United States ( lcsh )
Apache Indians -- Government relations ( fast )
Cheyenne Indians -- Government relations ( fast )
Energy policy -- Social aspects ( fast )
United States ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Includes bibliographical references.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science.
Statement of Responsibility:
by Daniel James Wilson.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
28440449 ( OCLC )
LD1190.L64 1992m .W54 ( lcc )


This item is only available as the following downloads:

Full Text


FEDERAL ENERGY POLICY AND TWO INDIAN NATIONS by Daniel James Wilson &.A., University of Colorado at Denver, 1989 A thesis submitted to the Faculty of the Graduate School of. the University of Colorado at Denver in partial fulfillment of .the requirements for the degree of Master of Arts Political Science 1992


This thesis for the Master of Arts degree by Daniel James Wilson has been approved for the Department of Political Science by Jana Everett Stephen Thomas date


Wilson, Daniel James (M.A., Political Science) Federal Energy Policy and Two Indian Nations Thesis directed by Professor Joel Edelstein Abstract This study examines the impact of federal energy policies on two Indian nations. The policies examined are in the areas of development of domestic coal reserves and disposal of high-level nuclear waste. Also included is discussion of non-energy federal policies that have shaped the current relationship between Indian nations and the United States. The methodology used is a combination of archiva-l research and field interviews. The .research shows that the survival of Indian nations as separate and vital cultures is threatened by federal energy policy. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. Signed l.l.l.


CONTENTS CHAPTER 1 INTRODUCTION ............................. 1 Purpose and Scope of This Study ......... 1 Theoretical Framework ................... 4 Methodology ............................ 33 Summary of Findings .................... 37 2. THE NORTHERN CHEYENNE TRIBE AND COAL DEVELOPMENT ........................ 53 Demographics and History ............... 58 Demographics ...................... 59 History ........................... 68 Coal Leases--Round One ................. 73 Montana Power, Western Energy, and Colstrip 3 and 4 ................... 93 Background on Negative Effects of Coal Mining Adjacent to the Northern Cheyenne Reservation ..... 94 Agreement With Montana Power ..... 104 Coal Leases--Round Two ................ 115 Powder River Coal Leases ......... 118 Northern Cheyenne Cosmology ...... 129 Powder River Resolution .......... 135 Tribal Politics ....................... 138 1V


The Traditionalists .............. 148 Questions of Legitimacy .... ...... 153 Edwin Dahle and Coal Development on the Reservation ............... 156 3. THE MESCELARO APACHE TRIBE AND MONITORED RETRIEVABLE STORAGE .......... 162 Introduction .......................... 165 History and Demographics ............. 170 Nuclear Waste Issues .................. 179 What Are Spent Fuel Rods? ........ lBO Nuclear Waste Policy Legislation.190 The Nuclear Waste Negotiator ..... 212 Monitored Retrievable Storage and the Mescelaro Apache Tribe ............ 230 Ruidoso and Other Communities Near the Reservation ............. 234 Opposition at the State Level .... 249 Tribal ................. 255 Conclusions and Speculations .......... 266 4 CONCLUSIONS ............................ 2 7 5 APPENDIX A. A Historical Summary of the Northern Cheyenne ...................... 295 B. Reclamation at Rosebud Mine in Colstrip Montana .................... 315 v


WORKS CITED ................. 3 2 0 vi


CHAPTER ONE INTRODUCTION Purpose and Scope of This Study The purpose of this thesis will be to examine some specific federal policies and their effects on two Indian nations, the Northern Cheyenne in south-eastern Montana and the Mescelaro Apache in south-central New Mexico. These two Tribes1 were selected because they are both strong and intact. Further, they lie at two different foci of federal energy policy. The Northern Cheyenne reservation is almost completely underlaid with large deposits of high quality coal. The Mescelaro Apache reservation is the proposed site for a temporary storage dump for I 1Throughout this study it has been difficult for me to try to de'de when to capitalize tribe. The rule of thumb that I have is to capitalize it whenever it replaces the name of a ific tribe, and not capitalize it when the word refers to tribe asj concept or a group of tribes. An alternative is to use the te nation. One difficulty with this is that the members of the nations themselves consistently prefer to use tribe. I have not seen a consistent usage in the literature. I fear that my e is itself not totally consistent.


spent fuel rods that are the waste product of electrical generation nuclear power. The results of this study, although focused on two specific Tribes, can be generalized to aid in understand the existing relationships between the United States and the surviving Indian nations within the political boundaries of the United States. This understanding potentially has an even wider applicability. One of the most intractable problems in international relations is the relationship between indigenous nations and nation-states of the European model. The struggle of Indian nations encompassed within the political boundaries of the United States for some measure of autonomy, some control of their cultural and economic life, is mirrored in other parts of the world. A second purpose for.this study is to help us to understand how the national government uses its resources to manipulate less powerful local governmental entities. The local entities here are Indian nations, but the lessons of this study have applicability in understanding how the government of the 2


United States may use its power to force policies that go against the interests of the local communities on state and county governments. A third benefit of this study is to illustrate how a specific interest, drawn from private sector business and government bureaucracy, is able to manipulate national policy towards the ends of that interest. This is particularly so in the portion of this study concerning the Mescelaro Apache and a proposed MRS facility on their reservation. A fourth benefit of this study is in the area of land use policy. In the western United States, Indian nations are an important element in land use planning, particularly in the areas of water, mineral resources and waste disposal. Adequate land use planning must take account of Indian nations; this in turn requires understanding of these nations. Finally, it is important to do this study, and many more studies like it, to help the dominant culture understand Indian nations, to change the way we see Indian nations. The most damaging misconception that the dominant culture has about Indian 3


nations is that they are historical in nature. I will discuss this fully in the next section. My analysis will shed light on some important questions in contemporary Indian politics: How do these federal policies affect Indian sovereignty? How do these policies affect traditional governmental structures? How do these policies affect the Northern Apache and Mescelaro Tribal council governmental structures? How do these policies affect relationships between local, state and federal governments and the two specific Tribes in this study? Theoretical Framework My theoretical framework for this study is built around the idea of dependence in relations between more-advanced and less-advanced economies. This is a political economy approach that defines the nature of the relationship between two unequal economies in the ways that the stronger economy dominates the weaker. The dependency model is a critique of the standard approach to economic devel-4


opment, namely export-led .growth and comparative advantage. I will lay out the important facets of this approach in a moment. As I will show, the dependency approach is useful in understanding the relationships between a stronger and a weaker economy; further it makes sense to regard Indian nations as weaker, dependent 'economies' in relation to the United States. I think it would be impossible to understand that relationship in any other way. But if it is essential, it is not sufficient. What other aspects .do I have to incorporate into a theoretical structure to fully understand the relationship? To make the structure more complete requires the use of what I will call cultural factors. These cultural factors come from two sources. The first source is the body of international law developed by European nations to rationalize and justify first the Crusades, and then applied to other non-Christian nations. Robert Williams calls 5


this structure the Discourse of Conquest.2 It can certainly be argued that the motivation behind the Crusades was economic and that the body of law de-veloped to justify it the conquest of non-Christian cultures can be fitted into a political economy framework. My argument is that there remains part of this world-view of Europeans that is essentially cultural in nature, and does not easily or naturally yield to a strictly economic analysis. I extend that argument to the second source of the cultural component of my framework, the cultural differences between the indigenous nations of the American continents and the Euro-American society. These differences frequently manifest themselves in an economic or political manner, but in their es-sence they have nothing to do with politics or eco-nomics. In fact, an attempt to understand the cul-tural differences between Indian nationi and the dominant settler culture in strictly economic or 2Robert A. Williams, The American Indian in Western Legal ht: The Discourses of Con uest (New York: Oxford University s, 1990). Also Kirkpatrick Sale, The Conquest of Paradise (New : Alfred A. Knopf, 1990). 6


political terms is in itself an example of cultural misunderstanding on the part of the dominant culture. A third important part of my framework that has a cultural component can be more naturally dealt with in a political economy approach. That is the role of bureaucratic structures of the dominant society in controlling the weaker society. The important bureaucratic structures in this study are the Department of the Interior, particularly the Bureau of Indian Affairs, and the Department of Energy. These structures play essential roles in enabling the more powerful economy to dominate the less powerful economy. But at the same time, much of the relationship between Indian nations and particularly the BIA has a strong cultural component. The political economic analysis focuses on the relationship between less-developed and more-developed economies, and the key is dependency. This model has been used as a critique of the standard model of export-led growth as a road to development, and is applicable in Latin America, Africa and Asia. 7


It has also been applied to the relationships between Eastern European countries undergoing the transition to market based economies and the western economies. This dependency model views the less-developed economies as trapped in a role where their only or primary source of income is the export of unprocessed commodities. The dependent economy is forced to import both consumer goods and the intermediate goods necessary to produce its export commodities. Specific examples include sugar in Cuba, coffee and bananas in Central America, hardwoods in southeast Asia, and copper in Zaire. A parallel can be drawn between these countries and the Northern Cheyenne. The Northern Cheyenne have limited means of earning the currency needed to buy what they need on the market, and are therefore under pressure to 'export' an unprocessed commodity, coal. Most of the value added to the processing of this coal would be captured by private sector energy companies, in the process of using it to generate electricity, and by 8


56 industries that used the electricity for further processing of materials. A recent extension of the idea of exporting commodities is to use less-developed nations as places to site dumps for waste produced in the more developed countries. In this view less-developed countries would be exporting their lower levels of pollution, their low levels of income translated into lower levels of demand for expensive pollution control, and their lower levels of wages translated into lower valuations of lives lost due to increased pollution.3 A parallel can be drawn between this model and the proposal to site a nuclear waste age site on the Mescelaro Apache reservation. The Mescelaro would be 'exporting' permission to store materials that no other community is willing to take. Other aspects of this political economy model that apply to my study include: the tendency for this type of dependent relationship to produce with-J 3"Let Them Eat Pollution," The Economist, February 8-14, 1992, 9


in the dependent partner local elites whose inter-ests identify more with the dominant partner than with their own people; distortions within the local economy of the dependent partner caused by infusions of relatively large amounts of cash; the destruction of traditional economic forms as the dependent part-ner's economy focuses more and more on the export commodity; lack of linkages within the dependent partner's economy to capture the full benefit of the cash generated by the export of the commodity; and divisions within the culture as some members benefit while others are harmed. One scholar who has applied this model to Amer-ican Indian nations is Roxanne Dunbar Ortiz.4 Ortiz sees Indian nations and the so-called third-world nations as being in similar positions. She shows that Indian nations fit into the dependency model in their relationships with the economy of the United States. She compares Indian nation economies and third-world economies in terms of their relative 4Roxanne Dunbar Ortiz, ed. American Indian Energy Resources Develo ment Native American Studies (Albuquerque: University ew Mexico, 1980) 10


strengths in negotiations with the dominant economies. The specific application of this political economy model in the present work sees the two Indian nations considered as dependent economies in relation to that of the United States. Due to national energy policies that encourage the growth in demand for electrical power while at the same time failing to adequately encourage conservation measures or the development of alternative sources of energy, there is a pressure on the Northern Cheyenne to develop their coal reserves and for the Mescelaro Apache to agree to store nuclear waste from electrical generation by nuclear fission on their reservation. An important mechanism to enforce dependence are the administrative structures of the dominant economy. The federal agency in charge of administering Indian reservations is the Bureau of Indian Affairs (BIA) This agency has consistently failed to adequately represent the interests of its supposedly primary clients, the Indians. This is particu-11


larly so in the area of energy development. The Bureau lacks the expertise to adequately negotiate energy leases that capture the maximum portion of the value of the resources for the Indian owner of the resource. The employees of the Agency also have a tendency to identify with the values of the dominant culture rather than with those of the Indians that they are supposed to represent in a trust relationship. There is also a large potential conflict of interest, in that the BIA is part of the Department of Interior, which has as one of its primary missions the development of mineral resources for the benefit of the dominant economy, whether or not this benefits the Indian owner of resources. Finally, there is little incentive for the BIA to effectively promote sustainable economic development on Indian reservations. Success in this endeavor, after all would put them out of work. An excellent source for understanding the inadequacies of the BIA 12


in assisting Indians in making mineral development decisions is Ambler.5 The specific structure that the BIA has used to enforce the dependent status of Indian nations since 1934 has been the Indian Reorganization Act (IRA} of that year. BIA policy has gone back and forth be-tween assimilation and support of Indian sovereign-ty. The idea behind assimilationist theory is that the best future for individual Indians and the best solution for the Indian 'problem' is for the reser-vations to disappear and for Indian citizens to take their place in the larger pluralistic society that is America. Two particular periods in the history of U.S.-Indian relations have seen strong assimila-tionist pressures, between the enactment of the General Allotment Act in 1887, which allotted reser-vation lands to individuals, and the official halt to this policy by the IRA of 1934, and during the Eisenhower administration of the 1950s. The IRA can be seen as a swing in the other direction, in that 5Marjane Ambler, Breaking the Iron Bonds: Indian Control of Develo ment (Lawrence, Kansas: University Press of Kansas, 13


its stated was to strengthen Indian self-government by setting up governmental structures similar in form to that of the United States. At various times during the reservation period, indige-nous religious practices have been suppressed, Indi-an children have been taken away to boarding schools, Indian languages have been suppressed, and Indian males have been forced to cut their hair. A significant number of Indians have become partially or completely acculturated in the dominant society. Often their experience is that they are subject to racism and do not totally fit into either the domi-nant culture or their own indigenous culture. The IRA authorized Indian nations to write constitutions, adopt bylaws, establish voter lists, and hold elections. An excellent study of tribal governments, both traditional and IRA, is Sharon 0'Brien.6 The dominant culture found it necessary 6Sharon O'Brien, American Indian Tribal Governments (Norman, homa: University of Oklahoma Press, 1989). A good discussion he evolution of Indian law and how the present system of Tribal ts has evolved is Vine Deloria, Jr., and Clifford M. Lytle, ican Indians American Justice (Austin, University of Texas s, 1983). 14


to designate one member or group of members of a tribe as leaders, capable of negotiating treaties, selling land, and making other transactions that fit into the European concepts of law and ownership. This view of power and leadership had no ready ana-log within traditional societies. One result was constant misunderstanding on the part of the indige-nous peoples what was being agreed on. Another was imposition of foreign concepts of government and law on top of traditional forms. Often half-breeds were placed in positions of power within the grafted-on systems, both because they were more likely to share cultural concepts with the dominant culture, and because more traditional leaders frequently reacted to formation of European-style governments with a refusal to participate. A striking contemporary example of this development is the refusal of the Hopi traditional leaders to recognize the Hopi IRA government. This has led to the BIA to threaten to take over Tribal administration.' 'Richard 0. Clemmer, "Crying for the Children of Sacred A Review Article on the Hopi-Navajo Land Dispute," American Spring 1991, Volume 15, Number 2, 225. 15


A similar conflict between traditional forms of government and an IRA government is taking place on the Northern Cheyenne reservation. The 'progre-ssives', who control the IRA gGvernment, and to a large extent are synonymous with it, and the 'tradi-tionalists' disagree on the path the Tribe should take. On some reservations, the IRA Tribal Council government has become so alienated from its people, that it becomes litt1e more than a tool for offreservation business, political and law-enforcement interests. The result can be open warfare between the Tribal Council forces and the people of the reservation. A recent example of such a situation was the Pine Ridge Oglala reservation in South Dako-ta, the deaths of two FBI agents, and the subsequent stand-off at Wounded Knee. One treatment of this episode is Peter Matthiessen's In the Spirit of Crazy Horse.8 This book has weaknesses that are significant within the context of that specific 8Peter Matthiessen, In the Spirit of Crazy Horse (New York: Vi ng, 19 8 0 ) 16


topic, but it is very helpful for getting a feel for the complexity of tribal politics, and the important criticisms of IRA governments. A specific application of the criticism of IRA governments that is important in this paper is the role of Tribal Councils in negotiating mineral ex-ploitation leases. One of the best current writers on issues concerning Indian nations and the mineral resources on their reservations is Marjane Ambler.9 She shows that IRA governments are often ineffective in protecting the interests of the Tribe as a whole, sometimes through ineptness and sometimes due to corruption. The bureaucratic structure that most affects the Mescelaro Apache Tribe is the Department of Energy. In this case the role.of the bureaucratic agency can be seen as protecting the interests of a 'nuclear establishment', whose membership is drawn from private industry, academia, and government agencies. J 9Marjane Ambler, Breaking the Iron Bond (Lawrence, Kansas: ersity of Kansas Press), 1990. 17


The cultural aspect of my theoretical framework has two components; the legal structure of European Natural Law in Robert Williams. and the cultural differences between Indian nations the Euro-American culture that are more non-political in nature. The European doctrine of Natural Law held that the indigenous nations had no right to their lands under international law, primarily because these nations were non-Christian and because their patterns of land ownership and other cultural patterns did not conform to European notions. This goes beyond the simplistic view that the settler cultures simply intended to steal the land and to exterminate the indigenous nations, and shows how a complex and internally consistent legal framework was developed, starting with the Christian Crusades against the Muslims in the Middle East. This legal structure was further refined by the European nations and the Catholic Church for use within the European continent, particularly persecution of heretics and Jews by the Church and various states. The structure was then applied to justify the conquest and extermina-18


tion of the native peoples of the Azores, and then to the Spanish and Portuguese conquest of South America. The structure was adapted and adopted by Protestant nations, particularly England, and used to justify genocidal wars against the Irish. This was a prelude for the its application in the English colonies on the North American continent. The struggle of the Northern Cheyenne to decide for themselves whether their coal will be mined, and if it is, to control development for their own benefit, is an extension of the struggle of all of the indigenous nations of the Americas against this view of Natural Law. The question of whether the Mescelaro Apaches possess sovereignty to place a nuclear storage facility on their land regardless of the wishes of the state of New Mexico or local communities also falls within this legal structure. The current relationship between tribal governments and that of the United States is an extension of the European concept of Natural Law, as developed to deny rights of sovereignty to non-Christian na-19


tions. This body of law is by definition political, and much of its effect is economic, but the driving force behind its development is cultural in nature. The cultural force is an inability by Europeans, and their American successors, to accept the legitimacy of governments that did not meet their criteria of what a governmental structure should look like. The relationship between Indian nations and the United States government within this legal structure is complicated by a contradictory approach taken by the American government, which holds that under some circumstances Indian nations are sovereign. The United States Constitution in some ways treats Indian nations in the same way as other foreign nations, and reserves for the federal government the right to relate to Indian tribes, preempting the states10 In addition, the United States entered into many treaties with Indian nations. Under European concepts of Natural Law, this means that Indian nations have sovereignty and must be treated as equals by the United States. In practical terms, it should be 10United States Constitution, Article I, Section 8, Clause 18. 20


understood that the colonists dealt with Indian nations within this framework until they were strong enough to take what they wanted by force instead of through diplomacy. In the Cherokee Nation cases, Chief Justice Marshall developed the doctrine that Indian nations are 'domestic dependent nations' in relation to the United States.11 This means that Indian nations are not states nor are they completely sovereign foreign nations. They are somewhere in between, with the amount of sovereignty they enjoy unclear and subject to the immediate needs of the dominant culture. The question of how much sovereignty Indian nations enjoy has been muddled ever since. In general, these nations enjoy sovereignty when the United States finds it convenient for them to do so and to the extent that it is useful to the dominant culture. A good discussion of recent Supreme Court decisions concerning the limits of sovereignty of Indian nations can be found in a special issue of a l 1U.S.S.C.,1831, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25. 21


periodical Without Prejudice.12 The Supreme Court has upheld the right of Indian nations to exercise taxing sovereignty is some cases.13 In other cases involving religious practices, the Supreme Court seems to be more willing to let state and national legislation override Indian sovereignty.14 As the Indian nations were pushed off of their land, they were granted reservations. These reser-vations were established by two means, through trea-ty negotiations or through executive order. As instruments between two sovereign nations, treaty reservations would seem to have greater standing under international law. Conceivably, executive order reservations could be terminated by a subse-quent executive order, and in fact that has hap-pened. Both of the reservations that I am concerned with 1n this study are executive order reservations. This has important implications in how the Northern I 12Curtis G. Berkey, "The U.S. Supreme Court and the Assault on nd' an Sovereignty," Without Prejudice Volume II, Number 2 (1989): 71 13Merriam v. Jicarilla Apache Tribe 140regon v. Smith, 1990. 22


Cheyenne and the Mescelaros deal with the federal government. Vine Deloria has written on Indian law. His focus in American Indians: American Justice is on questions of jurisdiction. Indian law is one of the most complex and self-contradictory areas of jurisprudence in the American system. Principles of sovereignty would seem to lead to Indian nations being responsible for law enforcement on their reservations; it is not that simple. The reality is a maze of competing jurisdictions. The second component of the cultural aspect of my theoretical structure is cultural differences between Indian nations and the dominant culture of a less political nature. Differences between indigenous cultures in general, and the Northern Cheyenne and Mescelaro Apaches in particular, and the dominant Euro-Arnerican culture make it difficult for the dominant culture to understand Indian nations. Perhaps most serious is the unwillingness of the dominant culture to understand and respect these differences. 23


Cultural questions are interrelated. Some of these are easy for the observer from the dominant culture to understand and others are more difficult. For example, the traditional origin myths of both the Northern Cheyenne and the Mescelaro Apaches reject the idea that these Tribes, and indeed all peoples indigenous to the American continents, originated in Asia and came to North and South America over a Siberian land bridge.15 The Northern Chey-enne believe that their people originated from a cavern in Bear Butte in what is now the state of South Dakota. The Mescelaro believe that they orig-inated in what is now the state of New Mexico. These beliefs present a problem for the dominant culture researcher, particularly in writing a sum-mary of what is known of the hi"story of these peo-ples. Aspects of this history are important in evaluating the current situation. How to reconcile these opposing sets of facts is not clear, and in I 15Ward Churchill, Marxism and Native Americans (Boston: South Press), 1983, 131. 24


fact I have not attempted to do so, contenting myself with noting the dichotomy. The Civil Rights movement of the 1960s contrib-uted to a resurgence of interest in and respect for traditional cultural forms. Native languages are being taught in schools, traditional governmental structures have been revived, and traditional reli-gious beliefs are being looked to as answers to problems such as alcoholism and drug addiction.16 The social problems associated with the collision of traditional culture and the dominant European cul-ture are known as the Black Road. Healing through traditional culture and religion is known as follow-ing the Red Road. The revival of the Sun Dance ceremony is part of this approach. Assimilation questions overlap from the pdlitical economic aspect to the cultural aspect. There are other important di.fferences in cul-tural values between at least these two Indian na-16There is no large body of literature on this application of itional culture yet developed. While spending time on or nd Indian reservations and in discussions with Indian peoples, author encountered this approach to social problems repeatedly. 25


tions and the dominant culture. The dominant culture defines identity as individual identity, while traditional cultures tend to define identity within the context of a group. Further, the identity of that group is itself tied to a specific piece of land. The Northern Cheyenne own enough coal to make every member of the Tribe wealthy if they sold it. Would an atomized group of individuals with large bank accounts and no group identity or land base still be Cheyenne? Similarly, the Mescelaro have an opportunity to gain at least $10 million annually, for 40 years, from the federal government in return for allowing the storage of spent fuel rods on their land. Can this be reconciled with traditional belief systems? Traditional groups, including some of the Northern Cheyenne and the Mescelaro, hold religious beliefs that regard the Earth as the Mother of their peoples. It is difficult if not impossible to reconcile these beliefs with development that is based on scraping away the earth to remove coal or on storing nuclear waste. 26


The definition of who is a tribal member also is a part of the cultural aspect of my theoretical framework. Tribal membership in tribes recognized by the United States government is usually based on census rolls established when a reservation was created, these tribal rolls being used to distribute rations and to attempt to ensure that the Indians were staying on the reservations and not engaging in raiding or warfare. Some tribal rolls derive from the period when tribal governments were set up under the IRA. Traditionally many tribes readily accepted into their number people who were not born within the tribe. One point of view of some Indian sts, in particular Russell Means of the American Indian Movement, is that by limiting recognized membership the federal government is limiting the capacity of tribes to increase their numbers. Means put forth this argument in a platform statement issued when he ran for Presidency of the Oglala Sioux Tribe.17 Opposed to this view is the position I 17Russell Means, The True Revolution for the Elde-rs, Ancestors, 're ties and Youth, campaign platform for Presidency of the Oglala x Tribe, document transcribed by author. Also available at 27


FoJ Mo:J ind (Lcl ca.Jl I I tri paP, trcl of I ch of Steve Brady, a Northern Cheyenne activist working with the Elders of that Tribe, that a blood quantum of at least one half and a knowledge of the language should be required for membership, particularly to hold office. 18 Another area that overlaps on the cultural and political economic aspects of my framework is the relationship between, and sometimes conflict be-tween, traditional forms of government and the gov-ernments set up under the IRA. IRA governments are modeled after liberal representative democracy, while traditional governments, different for every Indian nation, are rarely structured along those th World Center, University of Colorado at Denver, Dr. Glenn is, Director. This document is also useful to gain insight issues such as: the erosion of the land base of the Lakota ota is the overall name for the Tribe that the dominant culture s the Sioux; the Oglalas are one band of the Lakotas), and the rtance of land base for indigenous peoples; water rights of ty reservations, an important and related topic to this entire r; sovereignty; self-determination under international law; i tional government as opposed to IRA government, in the context overeignty; legal jurisdiction as it relates to sovereignty; a political economy analysis that stresses dependency and rnal colonialism. 18Steve Brady of the Task Force for Elders on the Northern enne reservation. See the section on Tribal politics in ter 3. 28


principles. Karl Llewellyn and E. Adamson Hoebel show that traditional Northern Cheyenne government operated under principles of consensus and wide-spread discussion involving the entire Tribe. Under this system it was not possible for a leader to make a decision that the Tribe disagreed with. Further, a leader held his position only so long as he was regarded as a leader by the Tribe. Leaders were not selected by election; it was not necessary to have an election or a revolution to remove a leader. 19' Apache. forms were muchmore decentralized, as was the Apache social structure in general. The Apache have never been a single nation in the sense that The Northern Cheyenne are. They were loosely organized into perhaps eight tribes, but the impor-tant unit of social organization was a subgroup con-sisting of perhaps a half dozen related family groups. Instead of formal procedures for selection of leaders, they were picked through what is known I 19Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: om lict and Case Law in Primitive Juris rudence (Norman, Oklahoma: ni ersity of Oklahoma Press, 1941) 29


as an emergence process; leaders were leaders simply because other people regarded them as such. The final consideration in terms of the cultural aspect is a general one, but one that underlies all legitimate work done in the field of Indian studies. It is one that is many times not explicitly stated. It consists of a rejection of the widely held view in the dominant culture that Indian affairs, while interesting, are historical in nature. In this view, it is an unfortunate aspect of history that the Indians had to be exterminated in order for civilization to advance. The primitive cultures had no chance of survival once their continents were 'discovered.' This point of view is consistent with the view of Natural Law that the dominant culture used to justify the original c6nquest of native peoples. It is also a comforting view for the dominant culture, in that it enables us to lay the entire episode at the feet of our less enlightened ancestors. It legitimizes attempts to force termination and assimilation of surviving Indian populations. Implicit in this view is the assumption that 30


the native peoples of these continents had nothing to offer the Europeans or the modern world. Recently scholars have. begun to redefine this paradigm. Bruce Johansen was perhaps the groundbre-aker here, in his work that examined possible con-tributions from the political system of the Iroquois Confederation to the American Constitution and Eu-ropean political theorists such as John Locke.20 More recently, the approach of the SOOth anniversary of Columbus landing on the New World has brought forth a number of works reexamining the significance of that event. The thrust of many of these works is to deconstruct Columbus as a hero of European cul-ture, and instead to define him as the first inter-national slave trader and initiator of the genocide of the indigenous cultures of the American conti-nents.21 In addition, interesting demographic work 20Bruce E. Johansen, Forgotten Founders: Benjamin Franklin, the uois and the Rationale for the American Revolution (Ipswich, achusetts: Gambit, 1982). 21Jack B. Weatherford, Indian Givers: How the Indians of the icas Transformed the World (New York: Crown Publishers, 1988); Churchill, "Since Predator Came." Covert Action, Spring 1992, 5; and Sale. 31


has been done, showing that not only have a large number of distinct tribes survived, but they are some aspects thriving. 22 My study is in no sense a historical one, although historical information is included. It concerns questions that confront us immediately, involving real people. How these ques-tions are answered will affect everyone in this country, not just the Northern Cheyenne and the Mescelaro Apaches. My theoretical framework is based on a politi-cal economy approach that focuses on the nature of relationships between more advanced and less ad-vanced economies. This relationship is one of de-pendence. It is drawn from critiques of mainstream development theory. In its application here, Indian nations are seen as dependent economies (cultures) in a subordinate position to the United States econ-orny (culture). This dependent relationship has specific characteristics. If it is accurate in deI 22Russell Thornton, American Indian Holocaust and Survival: A Po lation Histo Since 1492 (Norman, Oklahoma: University of Okl homa Press, 1987). 32


scribing the relationships between the Northern Cheyenne Tribe and the Mescelaro Apache Tribe with the United States, I would expect to see these specific characteristics. But this approach not sufficient. Attempting to force aspects of the relationships between the Indian nations and the United States government into a framework that is not sufficient to hold them would result in distortions and a lack of understanding of some essential elements. The required additional aspect of my theoretical framework is a cultural component. I stress once again that most if not all of the facets of the cultural component of my theoretical framework have somepolitical and/or economic nature. Perhaps the divisions that I have made are sometimes arbitrary; I feel that they are essential. Methodology The methodology of my research was to examine documents and conduct field interviews. The nature 33


of the materials that are available on the two specific areas of study differs. The struggle by the Northern Cheyenne to regain control of their resources drew a great deal of attention from the academic and legal communities. The result was a number of books and articles published about the Northern Cheyenne. Also available are a number of documents connected with an Environmental Impact Statement (EIS) produced by the Bureau of Land Management (BLM). These documentary sources are supplemented by interviews of Tribal members and local officials of coal mining operations just outside the reservation. Although the problems caused by pressures to mine the coal continue to this day, in one sense this is a historical problem, and it is easier to gain some perspective on it than in the case of the Mescelaro Apaches. The question on the Mescelaro reservation concerns attempts by the federal government to find a temporary storage site for spent fuel rods. Sources of information include articles from a public interest group in Washington, D.C., that is interested in 34


the general area of nuclear waste; newsletters from a local (Ruidoso, New Mexico) citizen group opposing the Monitored Retrievable Storage (MRS) site on the reservation; a Native American environmental group based in Oklahoma; New Mexico journalists; ists for the Lakota Times, a Rapids City, South Dakota, based Native American newspaper; a study done by the state of Tennessee opposing MRS siteing in that state; GAO documents; material from the public relations organization for the private sector nuclear energy industry; documents from a federal official in charge of negotiating nuclear waste agreements with tribes or states; an interview with and materials from a private lobbyist hired by the Tribal government; interviews with New Mexico state officials; and interviews with Tribal members and local citizens of Ruidoso opposed to the project. The focus is both technical and political. The different nature of the materials that are available on the two areas, the Northern Cheyenne and coal development and the Mescelaro Apaches and nuclear waste, has resulted in two very different chapters. 35


The Northern Cheyenne chapter was driven by extensive interviews conducted by myself and by documents produced under an EIS. The result is an analysis that starts with the Tribe and moves to federal policy. The chapter on the Mescelaro Apache was driven by documents on the policy question, for the most part government publications. Extensive interviews proved difficult to perform. The analysis moves from policy to the Tribe. I spent two periods of two weeks each on the Northern Cheyenne reservation in the summer of 1991. More than half of that time was spent in arranging and conducting interviews. I formally interviewed perhaps two dozen people, and had many more informal conversations. The interview portion of my Mescelaro research was less extensive. I spent a total of seven days riear the reservation. I interviewed perhaps a dozen people, but only two Tribal members. 36


Summary of Findings The Northern Cheyenne Tribe and the Mescelaro Apache Tribe shared the general experience of every other indigenous nation of the American continents in their contacts with the Euro-American culture and that culture's 'Discourse of Conquest.' The Cheyenne, before they were split into northern and southern tribes, lived in what is now Canada, north of the Great Lakes. They migrated west, starting sometime before 1650, probably due to pressures from tribes further east, who were in turn being pressured by the European colonizers. (see Appendix A for historical summary of Cheyenne, and History section in Chapter 2) They had essentially acquired their Plains Indian culture by 1790, and by 1820 they were living in the area near the Bighorn River in eastern Montana that they regard as their homeland. They had acquired the important ceremonial objects and origin myths that make up the core of their religious beliefs. Their present reservation 37


is a portion of their range at that time, near the Little Bighorn bat.tle site. By 1877 the Cheyenne had been utterly defeated by the settler culture, even though at least two peace treaties between the United States and the Cheyenne had been signed guaranteeing them perpetual ownership of their lands. In addition, the Cheyenne had been split into Northern and Southern Tribes. In 1884 the Northern Cheyenne reservation was established by executive order. The essential points in my discussion from Cheyenne history are first, that the Cheyenne had shown themselves to be adaptable and resourceful people, having adjusted to three different ways of living in their migration westward and thriving as Plains nomads, a way of life totally unlike their culture before European contact, and second, their success against overwhelming odds in retaining some small portion of the lands that they now regard as being naturally theirs. This was not an unusual experience for Indian nations in regard to the European conquest, but rather a typical one. Indian 38


nations who lost all of their land base, either through total conquest or by trying to adapt and assimilate to European ways, were usually totally destroyed. The Northern Cheyenne adapted to reservation life too. Under assimilationist policies they endured the suppression of their language, religion and traditional governmental structures. After the IRA of 1934 they were reorganized into a Tribal Council government. In some ways this helped to preserve the Tribe, but it also set the stage for the present conflicts between the Tribal Council government and the traditionalist elements of the Tribe. The NCT survived another assimilationist period 1n the 1950s when many tribes were terminated. The administration of Tribal affairs under the BIA from 1934 until the 1970s can be described as benign neglect. The Northern Cheyenne remained in poverty, but they avoided allotment of their lands, and the usual result of allotment, loss to non-Indians. 39


Between 1966 and 1971 the BIA negotiated coal leases that eventually totaled one half of the reservation land. (Coal Leases--Round One, in Chapter 2) TYpical of Indian mineral resource leases of the time, the terms were unfavorable to the Tribe, were negotiated by the BIA and approved by the Secretary of the Interior, as required by the IRA, with mini mal involvement by the Tribe. The Tribe seemingly was unaware of the danger of losing their reservation. Up-front payments for the leases were distributed as per capita payments rather than invested. The coal leases of 1966-1971 can be seen in the context of the role of the BIA as an administrative structure enforcing the interests of the dominant culture over those of the subservient culture. This relates to the dependency model aspect of my framework in terms of commodity export, and to the cultural aspect of my framework terms of the lack of understanding within the BIA of the absolute necessity of a land base for the continued existence of the Tribe. No coal was mined on the leases. 40


A coal lease offer in 1972 that was enormously more attractive in financial terms alarmed the Tribal Council leadership. Realizing that the Tribe could lose their reservation any time the existing lease-holders chose to mine, the Tribal Council, led by Edwin Dahle challenged the leases. After extensive litigation, the Tribe canceled the leases and affirmed ownership of the mineral resources on the reservation in the Tribe as a whole. Two more important episodes of litigation followed, starting in 1980 and 1982 respectively, this time in connection with off-reservation coal mining (Powder River Coal Leases, Chapter 2) and on-site power generation (Montana Power, Western Energy, and Colstrip 3 and 4, Chapter 2). The Tribe was successful in severely curtailing the extent of mining activities in the areas immediately adjacent to the reservation, and in obtaining preferential hiring agreements and impact assistance funds from existing mining and generating facilities. Chapter 2) (Powder River Resolution, 41


These events are understood in the context of the cultural aspect of my framework in several ways. First, in the Powder River lease sales, the Bureau of Land Management (BLM) prepared an Environmental Impact Statement (EIS). This EIS, which was successfully challenged by the Tribe as inadequate, failed to recognize the profound cultural differences between the NCT as a group and non-Indian residents in nearby communities. Non-Indian communities had already benefitted from coal development, and could be expected to benefit further from more development. Much of the benefit to these communities was from increased business opportunities due to increased population. To the Northern Cheyenne on the other hand, larger communities of non-Indians surrounding their reservation ihreatened to overwhelm their separate cultural identity. Further the EIS treated land as a fungible commodity. Damage to land can be mitigated by a sufficient infusion of cash. This is simply not true in the cultural framework of the Northern Cheyenne. The land of the reservation is unique and cannot be replaced. Fur-42


ther, the federal lands offered for lease, immediately to the east of the reservation, are regarded by the Cheyenne as rightfully belonging to them. Even though the land is not part of the reservation, it is regularly used for religious ceremonies and gathering of plant and animal products used in healing and religious rituals. The District Court in Billings, Montana ordered a revised EIS. This document included a summary of Northern Cheyenne religious beliefs. (Northern Cheyenne Cosmology, Chapter 2) According to traditional Northern Cheyenne beliefs, no mitigation of coal mining impacts is possible. Finally in terms of those aspects of my theoretical framework that I regard as having a large cultural content, is the question of sovereignty. As I have noted earlier, questions of sovereignty can be properly regarded under political economic or cultural aspects of my framework. In this case I choose to see sovereignty within the cultural aspect. The failure of the EIS to recognize the special nature of the Northern Cheyenne sprung from an 43


inability on the part of the dominant culture to understand the and profound cultural differences between them and the Northern Cheyenne. Further, the legal protest against the EIS, and through it to the coal leases, was made in cultural terms. The court order of the District Court Judge setting aside the leases placed its argument in cultural terms. But the political economy aspect is important here too. The preferential hiring agreements with Montana Power and Western Energy create a class division within the Tribe. Most Tribal members are unemployed, and most jobs that are available are low paid and temporary in nature. Jobs at the mining and generating facilities are well paid and permanent. Further, the Tribal Council government is in charge of administering mitigation funds. This involves control of jobs. But the best examples of the predicted effects of the dependency relationship can be found in events subsequent to the litigation above. Edwin Dahle, who was instrumental in canceling the coal 44


leases of 1966-1971, is in 1992 the Tribal Chairman. (Tribal Politics, Chapter 2) The Tribe has split into progressive and traditionalist factions. The traditionalists feel that the IRA government is illegitimate, that Dahle won election through fraud, that Dahle is not qualified to be a leader because he is white and does not speak the language, and that the progressive faction is determined to enrich themselves at the expense of the Tribe.23 The pro-gressive faction feels that the only hope of the Tribe is to modernize and to use the only resource the Tribe owns, This clearly illustrates how a dominant economY is able to create an internal elite that identifies with the values of the dominant economy over that of its own culture. Dahle rejects traditional Cheyenne belief that holds that mining the earth is unaccept-able. He is intent on making an agreement without 23A recent development in the summer of 1992 is a petition e to hold a referendum to remove Dahle from the Tribal rolls. next election for Tribal Chairman takes place in September and apparently Dahle has decided not to run for reelection. e Brady, conversation with author, Birney, Montana, August 5, 45


submitting it to the people for approval. On the other hand Dahle clearly understands the concept of capturing the maximum amount of benefit from the resource; he is insisting on a joint ownership arrangement and would like the deal to include a generation plant to add value to the resource. Without structural changes in the internal economy of the Tribe, the stage is set for the worsening of class divisions between those who have permanent well paying jobs in the coal industry and those who do not. Further, this infusion of cash can be expected to further erode the traditional Cheyenne traditions of sharing and support among extended families. There seems to be no plans in place to create economic linkages on the reservation that would enable the cash from coal development to circulate more than once. Continued and escalating clashes between the progressive and traditionalist factions are inevitable. Finally and most seriously, I wonder if coal development makes it more likely that the Cheyenne will lose their land. Without their land, even with large bank accounts, the Chey-46


enne will cease to exist as a separate and unique culture. This would be a tragedy for them and for us. The Mescelaro Apache Tribe live on their reservation in south-central New Mexico. They are linguistically and culturally related to the Navajo. Both groups are part of the Athapaskan language group. They migrated from what is now.north-western Canada sometime between 1000 and 1500 A.D. When they arrived in what is now the south-eastern United States they found the Pueblo peoples, descendants of the Anasazi, who had been there for hundreds, perhaps thousands of years. The Apache came into contact with the Spanish in the early 16th century. They fought the Spanish, the Mexicans and the Americans for almost three centuries, being the last Indian groups to be conquered. The present Mescelaro Apache Tribe is composed of remnants of the Chiricahua and Lipan Tribes, as well as the Mescelaros. Demographics, Chapter 3) 47 (History and


The discussion above on how the relationship between the Northern Cheyenne and the Euro-Arnerican culture fits into the portion of the cultural aspect of my framework derived from Williams and the 'Discourse of Conquest' applies equally well to the Mescelaro Apaches. Although the westward expansion of the Americans certainly needs to be understood in economic terms, the complete failure of the dominant culture to understand the less powerful culture made the process of conquest much more difficult for both sides than it needed to be. The Mescelaros have been led since 1954 by Wendell Chino. (History and Demographics, Chapter 3) Tribal Chairman for 38 years, Chino has never lost an election. The Tribe is regarded by Indian affairs scholars and by other indian leaders as a success story. They own their own ski area, a luxury resort complete with illegal gambling, and have further income from timber sales and cattle. But the benefits of this non-extractive development are not equally distributed among the Tribe. Chino controls the books, so no one can say if the Tribal 48


enterprises are profitable or not. The annual dividend is low, $50 last year. Chino controls the jobs in the Tribal enterprises. Opponents to Chino do not work. Chino's opponents make allegations that he controls dissent through the threat and use of force. Elections are almost certainly rigged. All of this fits well into the dependency aspect of my theoretical framework. Chino and his supporters in the Tribal Council government are a local elite that identifies with the values of the more powerful economy. The integration of the local economy into that of the dominant culture has introduced distortions in the form of some people receiving well paid jobs while others live in poverty. Chino and his rule can also be understood in cultural terms. Rule by coercion and control of resources is completely foreign to traditional Apache forms. Apache leaders were selected through an emergence process. Their powers depended completely on their success in battle and the respect in which their fellow tribal members held them. 49


Chino derives his position from an IRA government imposed on the Mescelaros. The reason for including the Mescelaro in this study is their involvement with a MRS facility proposal. MRS stands for Retrievable Monitored Stor age. It is part of current national nuclear energy policy. (Nuclear Waste Policy Legislation, Chapter 3) Nuclear energy policy is influenced to a great extent by the 'nuclear establishment.' The civilian nucl.ear power industry is facing a challenge to its credibility in the form of its inability to dispose of the primary waste product from nuclear power reactors. These wastes require special handling and storage. (What Are Spent Fuel Rods?, Chapter 3) The long term solution under current policy is geologic disposal in Yucca Mountain, Nevada. An interim solution 1s short term storage, perhaps forty years, in a facility where the wastes can be monitored and then retrieved for permanent storage. Hence the name MRS. There are very real doubts about the wisdom of current nuclear waste policy. The decisions that 50


produced the policy were driven by political consid-erations, rather than good science. Nobody wants a nuclear waste dump in their state. There is every reason to believe that the current nuclear waste policy was fashioned to encourage Indian nations to apply for the site, as a means of avoiding the veto powers of state governors. 24 This use of the concept of Indian sovereignty and the role of the Department of Energy in enforc-ing the perceived interests of the dominant culture at the expense of the subservient culture is the heart of the Mescelaro study, and what makes it so fascinating. Questions of Indian sovereignty and its limits are best framed in the context of Natural Law as developed by Williams. I have shown that under European concepts of international law, nonJ 24Most of the applicants for MRS study funds were Indian na 1 ons; only two were county governments. Of the two county rnrnents, one withdrew its application after a recall election rem ved the County Commissioners who made the application. The rceecln' ining county government application, from Fremont County in ral Wyoming, was vetoed by the Wyoming governor on August 21, 199 51


Christian nations lack sovereignty, and hence can be conquered. The Euro-American culture has treated Indian nations as if they had sovereignty when they were forced to, and ignored Indian sovereignty when the dominant culture was indeed dominant. Indian nations have and do consider themselves to be sovereign, regardless of the fa.ct that they have been forced to yield to the power of the settler culture. Indian nations have had some successes and some failures in asserting sovereignty. In this context, it is clear that the federal government, through the DOE is using Indian sovereignty to subvert the sovereign powers of state governments to prevent a nuclear waste facility in their state. 52


CHAPTER 2 THE NORTHERN CHEYENNE TRIBE AND COAL DEVELOPMENT The Northern Cheyenne live on a small reservation in southeastern Montana. This area of Montana is dependent on agriculture and coal extraction for its economy, with the added bonus of the annual pilgrimage of Custerphiles to the battleground memorial at Little Big Horn, located directly west of the Northern Cheyenne reservation. The Rosebud Creek cuts through the middle of the reservation, and the Tongue River forms the eastern boundary. The topography ranges from grassland to low hills, the hills covered with lodgepole and ponderosa pine. Low buttes abound, as do springs. This is beautiful land, with a sense of magic to it. The relationship of the Cheyenne to the land and how difficult it was to protect this remnant of a former hunting range that covered much of Wyoming, 53


eastern Montana and eastern Colorado is at the heart of the controversy surrounding the land and the coal. 1 The land of the reservation is also valuable to the dominant culture, but for completely different reasons. Government energy policy and private ener-gy companies place a very high value on the land, or rather on what is underneath it.2 The Northern Cheyenne reservation is completely underlaid with a thick seam of low sulfur coal. Estimates range into the billions of tons.3 A study of energy and development issues on the Northern Cheyenne reservation requires a certain amount of background material. In laying my back-ground, I will first give a quick sketch of the res-ervation as it is now and some information on Chey-enne history. Second I will give the reader a sum-mary of the events in the 1970s that culminated in 1See Appendix A for a historical summary of the Cheyenne. 2See Michael Milstein, Clean Air Act Unleashes a Battle Over ern Coal," High Country News, July 13, 1992, 26. 3Northern Cheyenne President Edwin Dahle, interview by author, Deer, Montana, June 24, 1991. 54


the cancellation of coal leases that had covered much of the reservation. This episode is extremely significant in the history of the relationship be-tween Indian nations and private sector energy com-panies, and has been written on before.4 I will not break new ground here. Very soon after being successful in canceling the coal leases the Tribe applied for and was grant-ed by the Environmental Protection Agency (EPA) Class One air quality status. On the basis of this designation the Northern Cheyenne brought suit against Montana Power (MP) and Western Energy (WE) MP lS the operating partner of four generating plants directly north of the reservation in Colstr-ip, Montana. WE 1s the mining subsidiary of MP that I 4Ambler, 62-67; Steven H. Chestnut, "Coal Development on the hern Cheyenne Reservation," and James P. Boggs, "The Northern Che enne Coal Sales, 1966-1973", Energy Resource Development D.C.: u.s. Commission on Civil Rights, 1978) 159-184; t Ashabranner, Morning Star, Black Sun: The Northern Cheyenne Ind ans and America's Enerav Crisis (New York: Dodd, Mead and Corn:>any, 1982); Ross K. Toole, The Rape of the Great Plains: Norl hwest America, Cattle and Coal (Boston: Atlantic Monthly Press Bod Little, Brown and Company, 1976); Mara Feeney, Cynthia Krq 1, Elin Quigley, Carlos Villalva, Joanne Sooktis, and Ted Ris ngsun; Social and Economic Effects of Coal Development on the Norl hern Chevenne Tribe (Billings, Montana: Bureau of Land Marl gement, 1986), 2.10-2.11. 55


operates strip mines near Colstrip that supply the coal for the generating plants. Again, this subject has been writ ten on. 5 An important result of this suit was an agreement between the Northern Cheyenne Tribe (NCT) and MP. This agreement called for the instillation of pollution control equipment on Co-lstrip 3 and 4, an air monitoring program on the reservation, and a preferential hiring program for Tribal members. I will do some evaluation of the of this agreement ten years later. In 1980 the Tribe signed an agreement for oil exploration with Atlantic Richfield Company (ARCO) In many ways this agreement is ground-breaking in its terms. It also is a good illustration of the intractibility of some of the problems associated with energy development issues on Indian reserva-tions. This has also been written about.6 In the context of energy development on Indian reservations 5Ambler, 183-185; Feeney et al., 2.11. 6James P. Boggs, "The Challenge of Reservation Resource lopment: A Northern Cheyenne Instance," in Native Americans and Develo ment II (Cambridge, Massachusetts: Anthropology urce Center, 1984), 205-236. 56


in the 1970s this was a good agreement. ARCO paid a large bonus up front, the lease required the company to actively explore or lose their rights to do so, and the Tribe retained an ownership interest in any oil or gas discovered. On the other hand the contract allowed ARCO to retain ownership of the interpretation of the data; ARCO may sell this data without the Tribe's permission. There is also some dispute over whether the Tribal Council had the right to grant access to allotted lands for exploration purposes. No oil or gas was discovered. The NCT has been involved in a long-running lawsuit concerning coal lease sales' and the economic, social and cultural'effects that development of these coal leases would have on the Tribe. This litigation has been in process since 1982 and seems likely to reach some sort of conclusion in 1992. There is also some movement towards an agreement to develop coal resources on the reservation itself. These efforts appear to have been initiated by the current Tribal government adrninis-57


trator, Edwin Dahle.' As this project was nearing completion, I was informed by a Northern Cheyenne Tribal member that Dahle had indeed signed an agreement for development of coal on the reservation. Demographics and History In this section I will examine the special relationship that exists between the Northern Cheyenne and the reservation that they live on. This relationship with a specific piece of land and how difficult it was and is to protect this remnant is essential to understand what the debate over coal development means. Ownership patterns on the reservation are important. This section is also important for the reader to get some feel for the area. Field research, for myself at least, is qualitatively different from knowledge gained through reading. When I think or write about the Northern Cheyenne, I see in my mind Lame Deer, the Rosebud Creek, Austin Two Moons, 'Dahle. 58


Edwin Dahle, and all the other places and people I came to know. It is important for me to remember that I am talking about living people and their land, not some abstract model in a study in a jour-nal. Demographics The Northern Cheyenne reservation is on about 450, 000 acres in the southeast corner of Montana, A little under two thousand acres are irrigated and about 25,000 acres are used for dry-land farming.8 In contrast to many other Indian reservation tribes, almost the entire reservation is used by the Tribe. None of the grazing land is held by white ranchers. Even more unusual, 98% of that land is owned by the Tribe, either in common ownership or in allotment. 8Accurate demographic information on Indian reservations is icult to obtain. These figures are taken from a brochure ed Northern Cheyenne Reservation, prepared by the Northern enne Planning Office, Lame Deer, Montana, 1981, revised by ine Whitewolf, Chairperson, Economic Development Planning :o ittee of the Northern Cheyenne Tribal Council Government, July 0, 1990, and Adeline Whitewolf, conversations with author, summer .nd fall 1991. The Northern Cheyenne Tribal Council Government is .n ndian Reorganization Act government. 59


Seventy-two percent of the reservation is owned by the Tribe and 26% is allotted to individual Northern Cheyenne. Of the 90,000 acres of timber land that is considered commercial, a little more than 26,000 is allotted. It is a policy of the Tribal govern-ment to acquire and to reacquire land that passed out of common Tribal ownership under allotment. The Tribe has the first option to purchase allotted land and exercises that option. Although it is possible for land to be taken out of trust, that has not happened since 1970.9 The population of the reservation is about 4,200, of which about 3,500 are registered Tribpl members. Almost all of the rest are married into the Tribe. There are very few white residents on the reservation, and although the main retail busi-nesses in Lame Deer are owned by white business people, they do not live on the reservation. There are 6,200 enrolled members in the Tribe; almost half I 9Bureau of Land Management, Powder River I Regional EIS, Final Eco ernie Cultural and Social Su lernent (Washington, D.C.: 1990), 44J Referred to hereafter as Powder River I. 60


of the enrolled members do not live on the reserva-tion. 10 The summers are hot and dry, the winters fre-quently very cold. The elevation of the reservation varies from 3,000 to 5,000 feet. The land varies from grass-covered hills to narrow valleys. There are many dramatic low rock-covered buttes. The Northern Cheyenne believe that these buttes are the homes of spirits, as are the many springs. There are four small towns or villages on the reservation besides Lame Deer. Busby has a popula-tion of about 600 in the town and surrounding dis-trict and is the site of the Busby contract school, a BIA-operated elementary and high school.11 Busby and Lame Deer are the sites of the only retail busi-nesses on the reservation. Busby has a gas station, 10These figures from the Northern Cheyenne Planning Committee considerably from those in Powder River I. 110ne of the hottest political issues on the reservation today ide of coal development is the lack of a public high school for bern Cheyenne children. The Busby school does not receive e aid and is seen as inferior in its programs to the public ols in Colstrip and Hardin. Most Cheyenne high school students bused long distances and Cheyenne parents feel that the icula of these schools are insufficiently sensitive to Cheyenne ure. Gail Small, interview with the author, August 1991. 61


post office and a small food store. Birney Village is the most remote town on the reservation, with a population of about 166. It is the most traditional community and is where the keeper of the Buffalo Hat lives. A casual visitor to the reservation would never see Birney Village, as it is far off the main highway U.S. 212 that runs through the reservation and connects Billings with Rapid City, South Dakota. Ashland Village, on the eastern edge of the reservation, and Muddy, between Busby and Lame Deer are both on U.S. 212, and have about 400 and 200 people respectively. They are primarily clusters of BrAhousing. Lame Deer 1s at the intersection of U.S. 212 and state road 39, which runs north to Colstrip. It is the main administrative and commercial center of the reservation. Besides the Tribal government offices and the BIA agency buildings Lame Deer is the site of Dull Knife Memorial College. Dull Knife is a two-year, primarily vocational school, founded in 1975. The school also offers academic courses and courses in Cheyenne language and culture. There 62


are about 125 full-and part-time students enrolled an any given time. Lame Deer has perhaps a half dozen small retail businesses. These include a grocery store, three cafes, a gas station, a convenience store and a quick-lube service center. There are several Tribally owned enterprises, including Northern Cheyenne Industries, which makes canvas goods, a bingo hall and a number of construction contractors. There are two additional communities that should be considered part of the reservation even though they lie just outside its boundaries. Ashland is across the Tongue River from Ashland village: It has a state liquor store and an Indian crafts store in the same building. Sale of alcohol on the Northern Cheyenne reservation is illegal; residents who want to drink go to Jimtown, a bar on the border of the reservation on the road to Colstrip. The Tribe also owns Northern Cheyenne Forest Products in Ashland. One mile from Ashland is the St. Labre Indian Catholic School, which has been a religious 63


J be! thi I 1mP. I extf fOlf exP, I re1 1n'{ nati I tY11 The I self Pc;tl C1 I boarding school for many years. Immediately south of the reservation is the village of Kirby. Most employment opportunities on the reserva-tion fall into four categories: 1. The mines or generating facilities in Colstrip; 2. The BIA or the Indian Health Service; 3. Tribal government; and 4. Tribally owned businesses. Depending on who you talk to unemployment is 50 to 80%. Household income is about $5,000 annually, compared to about $11,000 regionally.12 Further, there is very weak linkage between income and businesses on the reservation.13 Most of the income is captured by 12Feeney et al., 4-54. 13There is an extensive literature on linkage income economic development. The most appropriate models here would rawn from development theories of less-developed economies. In view, Indian reservations are dependent economies. The rtant characteristics of a dependent economy are a reliance on rt of extracted natural resources and dependence on importation consumer goods and intermediate goods used in production of rt commodities. Indian reservations that have extensive energy urces almost never have the necessary capital to exploit those urces. Most of the surplus wealth is captured by capital stment by non-Indian private investment. The return to Indian ons is very low in relation to the value of the resource, cally a royalty rate based on production rather than on value. e royalty payments are typically used for provision of social ices and for distribution on a per capita basis. Per capita ents usually are spent off reservation. The result is minimal ulation of cash, providing almost no multiplier effect. The 64


off-reservation businesses. In this type of situa-tion economic growth can actually result in decrea-sed revenue for both households and government. A further problem is the wide fluctuation in employ-ment levels. Problems associated with bust/boom development are discussed in detail below. Employ-ment of Native Americans 6n the reservation and in the St. Labre area was 18% less in 1985 than in 1980, after five years of intensive development of energy resources in Colstrip, just off of the reservation.14 Housing is in very short supply on the reserva-tion. Almost all new housing is built through the Northern Cheyenne Housing Authority with HUD funds. This as much as anything else limits the number of non-Indian residents on the reservation.15 Develop-ment prospects are limited because of lack of capi1e! result is that Indian nation economies become dependent on rot lty payments with almost no development of a larger economic )as Royalty payments can result in an actual deterioration of I :he development picture on the reservation. 14Powder River I, 37. 15Powder River I, 43. 65


tal1& and difficulty in borrowing funds from banks. 17 Water and sewer systems exist in all of the five reservation communities, but none are more than barely adequate.18 Solid waste disposal is completely inadequate,19 and health care is as inadequate as it is on most Indian reservations. The Northern Cheyenne reservation is still an isolated place. The closest place for many services is Colstrip, twenty-one miles north of Lame Deer. The closest substantial town is Hardin, fifty-five miles to the northwest of Lame Deer. The nearest city of any size is Billings, one hundred and ten miles. Before the flurry of coal development in the 1970s, the reservation was truly isolated in a cultural sense. Many Northern Cheyenne feel their existence as a people threatened by the development that has taken place and the potential development I& Powder River I, 38. 17Small, 1991. 18Powder River I, 44. 19Powder River I, 44. 66


that could take place. As well as being completely underlaid by a rich coal seam on the reservation, they are surrounded by potential coal mining and electric generating sites. The building of the four Colstrip power plants brought many problems to the reservation in the form of trespassing and illegal hunting and woodcutting by the white construction workers. Even the aspect that to an observer from the dominant culture seems to be the most positive aspect of this development, employment opportunities for individual Northern Cheyenne, turns out to be ambiguous, as I will show. There is little to draw an outsider to the reservation unless she has a specific purpose. There are no facilities for lodging, few opportunities for recreation and few places to spend money. Development, prosperity and population growth can mean increased business activity and increased incomes in the surrounding counties and towns; it usually means even more poverty for the Cheyenne. 67


I Mo:ro. 1 I 'j fr

feated by the United States Army by 1876 at Little Big Horn. In this sense their 'traditional' culture must be seen to be relatively recent, although there are certainly links of continuity that stretch back before they became a plains tribe. The Cheyenne can claim the northern plains as their homeland because they pushed off other tribes, notably the Crow, who were there before them. The second thing to realize is that the Cheyenne sought peace with the settler cultures that carne to dominate the continent and fought only to try to protect their land, their families and their culture. After they had been utterly defeated and removed to the Southern Cheyenne reservation in Oklahoma, the Northern Cheyenne escaped and returned to their horne, where their present reservation is. They suffered enormous losses; it is miraculous that the Northern Cheyenne survived as a people. Under their leaders Morning Star and Little Wolf the Northern Cheyenne chose to return to their northern lands even though they faced probable death. The Northern Cheyenne feel that they have earned the 69


right to the land that is the Northern Cheyenne Reservation, that they have bought it with the blood of their people. The creation of the Northern Cheyenne reservation, in 1884, was by an executive order.22 This has certain implications, particularly in terms of termination. The reservation was expanded by a second execu-tive order in 1900. As part of this order, white homesteads within the reservation boundaries were bought out, but Cheyenne families that had settled to the east of the Tongue River were forced to relo-cate as well. Many of the Northern Cheyenne still regard this land as rightfully belonging to them, even though title to most of it is in federal hands, administered by the BLM. This has implications for current and proposed coal mining operations east of the reservation. 22There are two types of Indian reservations, those created by utive order and those created by treaty agreements. Executive r reservations are more ad hoc. Reservations created by treaty een the United States and an Indian nation should be considered to ave the status of international law. 70


The influx of white settlers into Colorado in the Pike's Peak gold rush split the Southern and Northern bands of the Cheyenne. Although there is still much communication and travel back and forth between the two now separate tribes, there is inevitably a cultural gap. Perhaps more seriously, the split of the two bands also split the two most important ceremonial objects of the Cheyenne, the Sacred Buffalo Hat, which now is with the Northern Cheyenne in Montana, and the Sacred Arrows which are with the Southern Cheyenne in Oklahoma. The Northern Cheyenne, along with other Indian nations in the United States have been subject to assimilationist pressures, including forcible removal of Northern Cheyenne children to government schools, suppression of the Sun Dance and allotment, one of the most effective tools of conquest of the settler culture. Under allotment each family was given a certain amount of acres considered adequate for supporting a family through agriculture. This destroyed many reservation Indian nations, as allotted land passed out of Indian ownership through 71


various means. The Northern Cheyenne have through a combination of some luck and a lot of determination avoided this fate. The Tribe retains almost complete ownership of both the surface and subsurface rights on the reservation. Finally it is important to realize that the picture that we tend to have of the Cheyenne and the Plains Indians in general as a static culture is completely inaccurate. Five times in the last three hundred years the Cheyenne have been forced to adjust to a completely new way of life. They are resourceful and extremely adaptable. That adaptability has helped them to deal with the challenges posed by development pressures. Much of the source of this strength lies in their cohesive culture. This culture in turn is tied to the land. Ownership and control of a land base is essential to the continued existence as a separate cultural group for an Indian Tribe in the United States. The relationship with the land of the reservation helps to define who they are, what it is to be Cheyenne. Identity for the dominant culture is 72


defined as an individual, atomized identity. Land is a commodity, to be bought,sold and developed. Identity in a traditional community is a group identity, tied to a specific piece of land. The Northern Cheyenne are somewhere in between. In a later section on Cheyenne cosmology I will discuss the significance of the land in the spiritual beliefs of the Cheyenne. Coal Leases--Round One In this section I will discuss federal energy policy in the context of the 'energy crisis' of the 1970s. Raiher than develop truly sources, the government and the private sector energy companies chose instead a strategy of import substitution, with western coal designated to partially substitute for imported oil. The West has large coal reserves and a low population. The strategy proposed was intended to take advantage of both factors. 73


The Northern Cheyenne were even less powerful politically and culturally than the non-Indian com-munities in the West, and therefore in a worse posi-tion to resist this strategy or to demand adequate mitigation measures. Energy leases on Indian lands at this time were negotiated by the BIA. The BIA is not equipped to adequately represent Indian nations. Further, in light of the history of assimilationist policies of the United States towards Indian resertermination is always a very real possibil-ity for Indian tribes that are too successful in resisting the imperatives of federal policy. More than 90 percent of the low-sulfur coal reserves of this country are in the West, over half in Wyoming alone. Of the low-sulfur reserves acces-sible to strip mining, 87 percent are in Wyoming, Montana, New Mexico and North Dakota.23 During the early 1970s the United States was in the midst of an 'energy crisis,' precipitated by an embargo on oil 23Joseph G. Jorgensen, "Energy, Agriculture, and Social Science in he American West", in Native Americans and Energy Development, ed. Joseph G. Jorgensen (Cambridge, Mass.: Anthropology Resource I Ce er, 1978), 17. 74


exports to the United States by OPEC and the associ-ated dramatic rise in crude oil prices. Part of the response of the federal government was the develop-ment on an unprecedented scale of the energy re-sources of the western United States. Parts of the West were to be designated as 'national sacrifice areas'. Some of these areas were to be the site of uranium mining and milling and disposal of radioac-tive wastes, particularly around the Four Corners area of Colorado, New Mexico, Arizona and Utah.24 Another national sacrifice area was to be the North-ern Plains, which were to be the sites of strip mines, on-site electrical generating plants, and coal gasification projects.25 In 1971. the U.S. De-partment of the Interior published the North Central Power Study, jointly funded by the federal govern-ment and several private sector energy companies.26 24Christopher McLead, The Four Corners: A National Sacrifice (Bullfrog Films, 1983) video. 25Toole,133; Ashabranner, 81. 26U.S. Bureau of Reclamation, U.S. Department of the Interior, h Central Power Stud (Billings, Montana: Bureau of Reclama' October, 1971). This report was produced by the Coordinating ittee, North Central Power Study. The North Central Power 75


The study called for forty-two mine-mouth generating stations, half of them in eastern Montana. Thirteen mining and generating sites were proposed to be placed all around the NCT reservation. The report also mentions in a footnote extensive coal deposits on the reservation itself. 27 A combination of factors prevented this exten-sive development of coal resources from taking place, at this time: the oil/energy crisis eased, conservation measures were effective, and opposition by residents of the Western states made development more difficult. Instead of being sur-rounded by twenty or more strip mine sites and elec-trical generating plants, the Northern Cheyenne res-ervation is neighbor to seven existing ing/generating sites.28 During.the 1980s these y was a joint effort of the federal government, through the au of Reclamation and twenty-seven different power entities. 27North Central Power Study, Volume II, VI-2D. 28To the north there are the Absaloka Mine, owned by Westmond Resources, and near the town of Colstrip the Big Sky Mine d by Peabody Coal, and WE's Rosebud Mine, which supplies coal he Colstrip generating plants one through four. To the south he reservation there are the Spring Creek, East Decker and West erMines. All of the mining sites are on federally owned land 76


mines typically produced about thirty million tons of coal annually. 29 The coal seams in this part of southeastern Montana and Northern Wyoming are particularly at-tractive to extractive operations. The coal seams are thick, up to eighty-five feet. The coal itself is of very high quality; it has a low sulfur con-tent, low ash, and a high BTU rating. The overbur-den ratio, that is the amount of earth that has to be removed to mine the coal seam compared to the thickness of the coal seam, is very favorable.30 The Northern Cheyenne reservation is estimated to have between five and eight billion tons of recoveranb they all lie within sixteen miles of the reservation bound ari s. Coal has been actively mined in this region on a commercial ba$s since 1924. The Northern Pacific Railroad built the town of Coi trip and began mining coal for its steam locomotives. When the rai road switched to diesel power in 1958, mining operations cea ed. The MP Company bought the mine, leases and the town of coi trip in 1959 and resumed mining in 1968, through a wholly owned sufu idiary WE. Peabody Coal Company started mining operations at Bi@ Sky in 1969, and the other mines in the area all opened in the ear y 1970s. 29Feeney et al. 2 5. 3Feeney et al. 2 1 77


able coal.31 So far essentially none of this coal has been mined. Private sector energy companies had been leasing and mining coal on Indian reservations for many years, most notably on the Navajo reservation in Arizona. Lacking technical expertise, Indian nations were dependent on the BIA to help them negotiate lease contracts. The BIA is designated as the agency that is to oversee the trust relationship between the United States and Indian nations. As such, it should be aggressive in making sure that the interests of its clients are protected, and any energy leases that Indian nations enter into should capture the greatest value of the resource for the Tribe possible. The potential for conflict of interest is great. The BIA is part of the Department of the Interior, which is charged with facilitating development of the natural resources of the country, among other things. Also included in the Department of the Interior are the Bureau of Reclamation and 31Ashabranner, 83. 78


the Bureau of Land Management. Indian nations often find themselves in conflict with these other bureaus within Interior. BIA officials themselves may be less than completely knowledgeable in the highly technical field of energy development. They may be more sympathetic from a cultural direction to those who wish to develop resources rather than leave them in the ground. In brief, the BIA has traditionally not done a very good job of negotiating and administering energy leases.32 Further, the nature of tribal governments is not conducive to protection of the interests of individual tribal members or of the tribe as a whole. One view of the IRA of 1934 is that it ended a period of assimilationist policy under the Allotment Act, and indeed in some aspects it had this effect. The allotment policy was officially halted and Indian nations were authorized to organize their own governments. The form of these tribal council governments, however, was patterned on a model constitution developed by the BIA. Indian self-rule 32See Ambler, particularly chapters 2 and 5. 79


was subject to the supervision of the Bureau and all important decisions of the tribal governments had to be approved by the Secretary of the Interior.33 The model of the IRA governments was that of the Navajo nation, actually developed just before the passage of the IRA. Critics of the IRA style of governments feel that the Navajo Tribal Council was formed in order to provide a body to sign oil and gas develop-ment leases. 34 IRA governments can be understood in terms of the dependency relationship between more-developed and less-developed economies. This model sees the purpose of elections and government in the dependent culture (economy} as rationalization of the develop-ment process. The dominant culture (economy} de-velops an elite class within the population of the dependent culture (economy}. In return for agreeing to development relationships that may not benefit the majority of their people or the long-term interI 33Corey Dubin, "Washington's Skullduggery in Indian Country," Action Spring 1992, 24. I 34Glenn Morris, lecture for class, "Indigenous Politics," Fall 199), University of Colorado at Denver. 80


ests of the dependent culture (economy), this elite class is rewarded financially and socially. Traditional governmental forms of the dependent culture (economy) are eclipsed and made irrelevant. Within the context of both domestic and foreign dependent cultures (economies), power often passes into the hands of crossbreeds, who often have little or no knowledge of the culture and language of the dependent culture (economy) Leases negotiated in this context are favorable to the energy companies and not very favorable to the Indians, the owners of the resources. Payment from the private sector energy company was channeled through the BIA, as the resource was removed, and was on a flat royalty based on tonnage removed, rather than on the value of the coal. The royalty was low, typically twelve and a half cents a ton, for coal that was worth anywhere from fifty to eighty a ton delivered. Environmental protection measures were inadequate, there were no provisions requiring employment or training of Tribal members. Provisions requiring the developing 81


company to actually mine the coal or lose the leases were generally lacking. Finally, leases usually granted the energy company rights to use water and timber on the reservation and right of way on Tribal and private lands. 35 The result of this type of leasing arrangement is an income that, while small compared to the value of the resources extracted is enormous compared to the other sources of revenue on a reservation. If the members of the tribal government are unscrupulous large portions of the lease payments end up in their pockets; if they are honest the money is distributed in per capita payments. What does not occur is broad based non-extractive development. When the resources have been used up the tribe is in a worse position than it was before. Long term sustainable development has been neglected, the tribal members have become accustomed to living on royalty payments, the resource is gone, and usually the land and water resources are damaged or destroyed. Without development of non-extractive 35Ambler, 35. 82


enterprises on the reservation, the per capita payments circulate once and then are captured by offreservation businesses, almost exclusively owned by whites. In 1966, the NCT negotiated a contract that fit the pattern described above.36 The Tribe asked the BIA to hold a lease sale, and in mid-1966 one bid was received and accepted. The bidder was Peabody Coal Company and the lease covered 94,000 acres, a little over a fifth of the entire reservation. The Tribe received a bonus of up-front money of twelve cents an acre and would be paid fifteen cents a ton for coal used on the reservation and seventeen and a half cents a ton for coal used off the reservation. Another lease sale held in 1969 gave Peabody rights to an additional 55,000 acres under the same terms, giving Peabody the right to mine on a third of the reservation. The BIA regarded these bids as very good because the Agency thought that the coal reserves on the reservation and on federal lands nearby were not very attractive economically. Only 36Feeney et al., 2.10. 83


later did the BIA and the Tribe find out that bonus bids on similar acreage on western federal lands had reached sixteen to one hundred dollars an acre.37 A third sale took place in 1971. By this time the entire context of coal economics had changed. Western coal was no longer a resource of marginal value, but a highly prized substitute for increasingly expensive and uncertain supplies of oil. Further, changes in U.S. air pollution laws had increased the value of low-sulfur western coal in comparison to high-sulfur eastern coal. Extraction techniques had improved to the point where the cheapness of strip mining western coal compensated for transportation costs to eastern markets. Finally, energy production companies had started to build mine-mouth generating facilities connected with the large urban markets for electricity by high-voltage transmission lines. This development contributed to making Western coal economic as well as shifting the pollution problems associated with coal-fired generating plants away from large urban centers and into 37Arnbler, 63 84


sparsely populated rural areas, who could be expected to have less political leverage and sophistication to oppose such operations. The results of the sale in 1971 reflected these changing conditions. Twelve bids were submitted and four exploration permits were issued. Fifty-six percent of the reservation was now leased, at bids averaging nine dollars an acre. The Tribal Council distributed two and a quarter million dollars as per capita payments to Tribal members.38 Finally, in 1972 an offer was received that brought things to a head. Consolidation Coal offered to lease an additional seventy thousand acres for a bonus price of thirty-five dollars an acre, a royalty of twenty-five cents a ton and a one and a half million dollar community health center. Consolidation proposed building four coal-gasification plants on the reservation and mining one billion tons of coal.39 As part of this proposal, Consolidation would build a town of about thirty thousand 38Ambler, 64. 39Feeney et al., 2.10. 85


people, or almost ten times the population of the reservation. Current Tribal Chairman Edwin Dahle, who was then a Tribal Council member, asked an Osage lawyer named George Crossland for advice. He advised the Tribe to challenge the coal leases and in March of 1973 the Northern Cheyenne Tribal Council hired the firm of Ziontz, Pirtle, Morrisset, Ernstoff and Chestnut of Seattle, Washington to attempt to cancel all of the leases.40 Ziontz and Chestnut submitted a memorandum summarizing what they saw as the violations of law that invalidated the leases to Interior Secretary Rogers C.B. Morton, asking him to cancel the leases. This memorandum contained thirty-six different possible legal violations.41 The heart of the legal case against the Interior Department and the Secretary centered on three areas. First, coal leasing regulations governing Indian lands limit leases to 2,560 acres. This acreage limitation can be set aside only if larger acreage is necessary for 40Arnbler, 65. 41Chestnut, 168-171. 86


the success of the project and if it is in the interest of the Tribe. Ziontz and Chestnut argued that the interests of the NCT had never been considered. Second, the second and third coal leases violated the Department's own regulations governing surface mining on Indian lands. Third, In 1970 the United States Congress had enacted the National Environmental Policy Act and the Water Quality Improvement Act. Both of these pieces of legislation required assessment of environmental impacts of large developments. Thus the third lease sale violated United States' statutes. 42 The Secretary did not cancel the leases but rather suspended them until the energy companies and the Tribe could jointly agree on ways to address the problems with the leases. This effectively made it impossible for the leases to be executed, while avoiding admitting liability on the part of the BIA.43 In 1980 Congress passed legislation that essentially swapped leases on federal land for the 42Chestnut, 163-165. 43Chestnut, 166. 87


leased acreage on the reservation.44 This legislation confirmed ownership and control of the subsurface mineral resources of the Northern Cheyenne reservation in the Tribe as a whole. The Northern Cheyenne Allotment Act of 1926 provided that mineral rights would be held in common for fifty years.45 After that time the subsurface rights were to be distributed to the owners of the surface. The Tribe feared that if allotment of the mineral rights were permitted to happen in 1976, individual allottees would negotiate with energy companies for leasing rights. The Tribe persuaded Congress to pass legislation canceling the tion of allotted rights to minerals, and this was upheld in Hollowbreast.46 The actions of the Northern Cheyenne were part of a dramatic shift in how Indian nations approached development of their energy resources. The Cheyenne were greatly influenced by their observation of the 44Ambler, 69. 45Northern Cheyenne Allotment Act, 3 June 1926, 44 Statute 690. 46Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976). 88


experience of the Navajos and Hopi at Black Mesa in Arizona. In 1972, the Committee to Save Black Mesa invited a delegation of Northern Cheyenne to visit them and observe the Black Mesa strip mine and its effects on the environment.47 On the Northern Cheyenne reservation itself the federal government funded the Northern Cheyenne Research Project. Part of the work of this project was to do research on and distribute information on the impact of coal development.48 At the same time non-Indian residents of Montana and Wyoming and organizations such as the Sierra Club were raising questions about the wisdom of the scope of development called for in the North Central Power Study. Some results of the Northern Cheyenne lawsuit were changes in mineral leasing policy within the Department of the Interior. The legal questions raised and the resolution of the suit showed that the BIA was not technically prepared to help the 47Richard 0. Clemmer, 0Black Mesa and the Hopi, II in Jorgensen, 48Arnbler, 65. 89


tribes negotiate fair contracts. The Interior Department has its methods of handling mineral leases, including more accurate and timely accounting procedures and increased minimum royalty rates. 49 The realization that the BIA and the Department of the Interior were unable or unwilling to give them adequate technical advice and negotiating support led the tribes with important energy resources to start consulting each other and sharing infor.mation. This contributed to the founding of the Council of Energy Resource Tribes (CERT) in 1975,50 which can be considered to be a mixed blessing. CERT was founded with the help and funding of the Department of the Interior. CERT can be seen as another instrument designed to help.the more powerful culture make systematic its expl_oitation of the resources of the less powerful culture. CERT is selective of who has access to its information, preferring to deal with elected tribal council gov-49Arnbler, 71. 50Arnbler, 70. 90


ernments, private sector energy consultants, and federal government officials. Its information is not accessiole to environmentalists or researchers. The experience of the Northern Cheyenne drove home an important lesson for all tribes involved in energy development issues. Through ignorance of the value of their resources and reliance on the BIA and the Department of the Interior, the Northern Cheyenne came close to losing their reservation and almost certainly the destruction of the Northern Cheyenne as a separate culture. But they also showed that a sufficiently determined people could control their own destinies, at least temporarily. The Northern Cheyenne were fortunate in that they became aware of the threat to their existence before actual production started on any of the leases. The North Central Power Study and the energy crisis caused by the 1973 OPEC embargo brought into focus questions of sovereignty vital to Indian nations in the western United States and to the state and local governments in the West. President Nixon in 1973 announced an intention to make the United 91


States energy independent by 1980, mostly by exploiting the enormous coal deposits in the western states. President Carter asked Congress for powers that would enable him to overrule state, county and tribal governments to expedite energy development,51 a proposal that was narrowly defeated. This presented Indian nations with a difficult problem. How much sovereignty could Indian nations assert? If they asserted total sovereignty and refused to allow development of their resources, what was to stop the federal government from seizing those resources or even from dissolving the reservations? In the historical context of the Allotment Act and various assimilationist strategies aimed at destroying Indian nations as independent cultural units, these concerns were not far-fetched. If Indian nations agreed to participate ln development, how could they protect the interests of the tribe and individual tribal members? Above all how could they protect the basis of existence for most Indian nations, a land base that gave meaning to a specific culture? 51 Ambler, 68. 92


The success of the Northern Cheyenne in breaking the coal leases and regaining control of their coal made them known as the anti-development Tribe.52 This reputation was further reinforced when they applied for and received Class One air quality status from the Environmental Pro tection Agency. This status would make it extremely difficult to develop any generating capacity on or near the reservation and provided the Tribe with an invaluable tool ih their next encounter with coal development. Montana Power, Western Energy, and Colstrip 3 and 4 In this section I will discuss the next round of coal development pressures that the Northern Cheyenne were involved in. Montana Power (MP) is a large private sector energy company. Western Energy (WE) is one of its subsidiaries, that provides the coal to power four electrical generating plants in Colstrip, immediately north of the reservation. 52Ambler, 69. 93

PAGE 100

Although the Northern Cheyenne had been successful in its efforts to prevent coal development on the reservation, they were surrounded by coal mining. The Northern Cheyenne used federal law to shape coal development off reservation at least partially to their benefit. This discussion will help to illustrate the continuing pressures that coal development brings to bear on the Northern Cheyenne, and the ambiguous nature of mitigation measures that are available. I will also illustrate how development can bring prosperity to off-reservation communities, while bringing negative effects to the reservation itself. This fits into the theoretical framework of economic linkages. Off-reservation communities were prepared to capture the benefits of development, while the reservation economy was not. Background on Negative Effects of Coal Development Adjacent to the Northern Cheyenne Reservation Though no coal mining took place on the reservation itself, that did not mean that coal mining 94

PAGE 101

had no effects on their reservation and culture. In 1976 the NCT applied for Class I air quality designation from the EPA, and this designation was granted.53 This most stringent classification of air quality would have prevented the construction of two new generating plants, Colstrip 3 and 4. The EPA initially approved construction of the power plants, but the Tribe protested on the basis of the degradation of air quality, and the dispute evolved into a complicated court case. Montana rancher Marcus Nance and MP Company brought suit against the EPA to challenge this Class I designation.54 The success of the NCT in this case brought the construction of Colstrip 3 and 4 to a halt. The Northern Cheyenne had also brought suit against MP and in 1980 the Tribe and MP reached an out of court settlement.55 It is important to ask the question: Why were the 53Feeney et al., 2 .11. 54Nance v. EPA, 645 f.2d 701 (9th Cir. 1981), cert. denied. 55Ambler, 184. 95

PAGE 102

Northern Cheyenne opposed to the new generating plants? The most straightforward explanation, that the Tribe was concerned about degradation of its air quality, is not complete. There were two additional reasons. First, the Tribe wanted to avoid the nega-tive impact on the reservation that had been asso-ciated with the construction phase of Colstrip 1 and 2. Second they felt that while the off-reservation communities in Rosebud and Bighorn counties had benefitted from coal development through the first part of the 1970s, the reservation residents had not benefitted or had been harmed by the same develop-ment process. Adverse effects of coal development can be classed into four general groups: increased demand for social services, perceptions of well-being, cultural and religious conflicts, and impacts on governmental structures.56 These effects can be further classified into absolute and relative in nature, relative referring to a comparison of the s6The classification scheme is my own; information in this sec ion is taken from Feeney et al., 1986, chapters 4, 6, 7, 8, 9, I an 10. 96

PAGE 103

effects of coal development on the reservation com-munity and the surrounding non-Indian communities. Absolute social services effects included law enforcement problems connected with increased use of alcohol, conflicts between non-Indians and Indians, and increased incidence of trespass, illegal wood-cutting and illegal hunting and fishing. In-migra-tion of Northern Cheyenne and other Indians to the reservation strained already inadequate social ser-vices and housing. Increased truck traffic resulted in more road kill of cattle and faster deterioration of reservation roads. In a relative sense, more Cheyenne families chose to send their children to school in Colstrip, where the school district was the recipient of funds from the state coal severance tax.57 This made it more difficult for the reserva-57 As late as the summer of 1991, Northern Cheyenne parents concerned about the effects of busing their children to be ated in schools that were majority white. The parents felt their children were being inadequately educated in Northern enne culture. Conversations with author, Lame Deer, 1991. hern Cheyenne parents and political activists are attempting to ince the state to form a school district on the Lame Deer rvation. Currently most Northern Cheyenne children go to ols in either Colstrip or Hardin. Small, September, 1991; y Kipp, "Northern Cheyennes Seek Support for Their Own School," ta Times, August 7, 1991, A14. 97

PAGE 104

tion schools to survive, they receive no funds from taxes on coal extraction and were dependent on monies that the BIA pays on a per capita basis. It is this relative impact that is perhaps the most important. While the counties of Rosebud and Bighorn have experienced rapid growth in population associated with coal development, they have also been the beneficiaries of funds distributed from the state coal severance tax instituted in 1975 and direct grants from the energy companies. Incomes and social services off-reservation have risen while incomes and social services on reservation have stayed the same or decreased. While the impact on the Tribe from the construction phase of Colstrip 1 and 2 has been low in an absolute sense, even small effects on a system that 1s already severely strained are significant. Measures of well-being are both quantitative and qualitative. Quantitative measures include unemployment and relative family income. Unemploy ment on the reservation rose from 30% in 1970 to about 50% in 1985, with a low peak of about 16% in 98

PAGE 105

1972.58 It is possible to attribute the low peak to construction on the Colstrip plants. It is more difficult to relate the rise in unemployment over the fifteen year span with coal development, but once again when this trend is compared to job creation in the neighboring counties, the Northern Cheyenne are not benefiting from coal development. Between 1969 and 1979 adjusted family income for families on the reservation fell 7.2%, while income in the counties outside the reservation rose 4 8. 6%. 59 Qualitative measures of well-being are measured through the perceptions of reservation residents. Interviews with Northern Cheyenne show that they are concerned about the effects of alcoholism, dependence on government programs, and being overrun by non-Indians on their own reservation. While a few Cheyenne have permanent well-paying jobs, this only widens the gap between them and the rest of the Tribe. Most jobs on the reservation are seasonal 58Feeney et al., 4-30. 59Feeney et al., 4-54. 99

PAGE 106

and/or low-paying. Even jobs with the Tribal government are in a sense temporary, depending on funding resources. The traditional Cheyenne social organization is based on extended families and sharing of material resources. The well-paying jobs at the coal mines or generating plants encourage acquisitiveness, individualism and consumption. In conversations with Tribe members in the summer of 1991 I heard comments characterizing people with jobs at the mine or power plant as spending all of their money on alcohol and having parties. Whether or not this is true, the perception is there. Cultural and religious conflicts caused by coal development are, to at least some extent, symbolic in nature. Coal development is seen as a symbol of all that is wrong and threatening in the dominant culture. There is the question whether a Cheyenne can work in the coal industry and remain true to the cultural heritage that makes him/her a Cheyenne. Coal development also has an assimilationist role. Besides jobs in coal development off the reservation, Cheyennes are also involved in energy company 100

PAGE 107

scholarships and training programs. Strip mining is totally incompatible with a proper relationship with the earth in traditional Cheyenne belief systems. In this context, it would create enormous cultural strain to be involved with or benefit from coal development. The disruptive effects of regional coal development, and the legal battles the Tribe engaged in to protect their interests, affected on the stability of Northern Cheyenne governmental structures. The Northern Cheyenne Tribal Council government was set up by referendum under the 1934 IRA. This government was very stable until the 1980s, when the Tribe was forced to expend great effort and resources to regain control of its coal .. Allen Rowland was Tribal President from 1968 through 1984, a time of great turmoil in the relations between the Tribe and energy companies and within the Tribe. Rowland guided the Tribe through the cancellation of the 1970s coal leases, the EPA Class I air rating and the lawsuit between the Tribe and MP. Windy Shoulderblade was elected president in 1984 but removed 101

PAGE 108

from office by the Tribal Council in December 1985. John Buffalo Horn elected President in a special election in January 1985 and served as President until 1988. The current President, Edwin Dahle was elected in 1988.60 Dahle is regarded by at least some members of the Tribe as not being a real Northern Cheyenne.61 Dahle is perhaps one-sixteenth Cheyenne, does not speak Cheyenne and looks like a white person. The Tribal Council usually turns over completely every two years. The frequent turnover of Tribal Council Presidents in recent years is an indication of the factionalism and divisiveness within the Tribe over development related issues. It would be an oversimplification to say that all Tribal conflicts are between pro-development and anti-development factions, but that issue is the one that the pro-development groups feel is most likely to lead to Tribal self-sufficiency and the anti-development factions 6Feeney et al., 5-10; Dahle, 1991. 61Conversations with the author, summer 1991. 102

PAGE 109

feel is most likely to lead to the destruction of the Northern Cheyenne as a separate culture.62 However according to at least some Northern Chey-enne, the division is more apparent than real; while the Northern Cheyenne do disagree among themselves on many issues, there is a basic homogeneity of culture that binds them together. Some Northern Cheyenne feel that the divisiveness on the question of energy development is created by outside fore-es. 63 Finally, it is important to remember that the Northern Cheyenne feel themselves surrounded by coal mining operations. The North Central Power Study and its plans for forty-two coal-fired generating plants in southeastern Montana and northeastern Wyoming have not been forgotten. That plan may have been shelved for the time being; there is a fear that if it is necessary in some future energy crisis the plan can be revived. The prospect for disrup-62Dahle; Tony PrairieBear, Windy Shoulderblade, Cal Wilson and rs, conversations with author, Lame Deer, Montana, summer 1991. 63Small; Bill Tallbull, interview with author, July 10, 1991. 103

PAGE 110

tion or even termination of the Northern Cheyenne reservation is a real one. Agreement with Montana Power In this context the NCT entered into an agree-ment with MP 1980. The Tribe agreed to drop its lawsuit against the construction of Colstrip 3 and 4.64 MP agreed to drop its suit against the EPA, the Tribe and the Northern Plains Resource Council.65 MP also agreed to preferential hiring of Indians, training programs, air quality monitoring and impact assistance funds. The preferential employment program called for MP to give preference to 11 Indians on or near the Northern Cheyenne Reservation in connection with employment opportunities at Colstrip during the 64Northern Cheyenne Tribe v. U.S. Environmental Protection Ag cy, Cause no. 79-7500. I 65Nance Cattle Company, et al. v. EPA, Cause no. 77-3058 and Pu et Sound Power and Light Company, et al. v. EPA and Northern Ch1 enne Tribe and Northern Plains Resource Council, Cause Nos. 782824 and 78-3234. 104

PAGE 111

construction and operation_of Colstrip 3 and 4."66 A facilitator was appointed to act as a liaison between the Tribe and MP. The first facilitator appointed was Dennis Limberhand. In connection with this preferential employment program, the prime contractor, Bechtel Power Corporation was to set up training programs in conjunction with the trade unions. The agreement also called for a scholarship fund to be set up by MP to provide for training of Northern Cheyenne Tribe members for employment on _the projects. There are contrasting views as to the effec-tiveness of this portion of the agreement. Extreme-ly critical of the results is Windy Shoulderblade, former Tribal Chairman and current administrator of the Northern Cheyenne Tribal Employment Rights Organization (TERO) office. TERO is a federally funded employment and job-training program for Indian res-ervations. Shoulderblade feels that Northern Chey-enne employees of MP and WE are concentrated in the [ 66 "Agreement between Montana Power and the Northern Cheyenne Tr1 e", appendix A in Feeney et al .. 105

PAGE 112

lower paying grades, such as janitorial and labor-er.67 It is difficult for Tribal members to get into the better paying crafts positions. Shoulderblade feels that this is a combination of indiffer-ence on the part of MP and WE management and the active resistance of the trade unions. The Tribe is not promptly notified of job openings and the facil-itator is ineffectual in protecting the interests of the Tribe. Shoulderblade is generally critical of the performance of the facilitators. When calls go to the union, non-Indians are sent. The facilitator position called for in the agreement is crucial. When a strong facilitator is aggressive in promoting the Tribe's interest more Northern Cheyenne are hired. What often happens, according to Shoulderblade is that the facilitator comes to identify more with the company than the Tribe. The original facilitator Dennis Lirnberhand is now an administrator with MP. According to Shoulderblade there is only one Northern Cheyenne in I 67Windy Shoulderblade, interview with author, Lame Deer, Mo tana, June 19, 1991. 106

PAGE 113

middle management. Northern Cheyenne make up about 12% of the workforce at MP, mostly as laborers and janitors. The Northern Cheyenne work force at WE is about 3%.68 In discussions with NCT members on their per-ceptions about the hiring practices at the generat-ing plants, the perception that Tribal members are discriminated against in hiring and subject to ra-cial harassment on the job is widespread, both among those who work or have worked at the plants and those who have not. Evert if these perceptions are not accurate, the fact of the widespread perception is indicative of a problem. The Northern Cheyenne workers at both companies are subject to frequent racial slurs.69 Complaints are seldom filed; most problems result in the worker quitting rather than making a formal complaint. On the positive side, at 68Feeney et al., 5-2. 69I cannot document this remark. It is based on conversations Northern Cheyenne Tribe members who worked for Western Energy ontana Power. The remarks were made in the context of casual co ersations. I feel that it would be a betrayal for me to at ribute such comments. 107

PAGE 114

least one subcontractor of MP was fired for making racial slurs meetings.70 MP's point of view on the effectiveness of the agreement and on relations between the Tribe and MP are much more positive. According to Dennis Limber-hand there are seven Northern Cheyenne in management or middle management.71 During the construction phase of the generating plants about two hundred Indians were employed, many of them in apprentice-ships. In the current operating phase of the project there are about ninety Indians employed. Seventy-eight of these are Northern Cheyenne. Limberhand feels that racial animosity is not a problem on the job site. Limberhand also pointed out that this is the total operating staff of all four power plants. There are one or two Northern Cheyennes working 1n Colstrip 1 and 2, which were completed in 1974 and 70Bill Swartzkopf, Director of Reclamation for Western Energy, rview with author, Colstrip, Montana, June, 1991. 71Dennis Limberhand, Director of Personnel, Montana Power, trip, Montana, interview with author, June 24, 1991; and phone rview August 20, 1991. 108

PAGE 115

1975, before this agreement. Colstrip 3 and 4 added 430 new operating employees. The percentage of Indians working in the two newer plants is about 20. Turnover in the workforce is very low, about 4% annually, and the median age is less than forty years. This lessens the effectiveness of any preferential hiring scheme.72 A major weakness of the MP agreement is that both MP and its subsidiary WE feel that the agreement applies only to the power generating parts of the entire operation. The Tribe has consistently maintained that the agreement should also apply to WE, but with no success. Another problem from the Tribe's point of view is that MP has interpreted the agreement to apply to Indians rather than specifically to Northern Cheyenne. The second major part of the agreement called for an air monitoring program. In order to get EPA approval for construction of the plants, MP had installed state of the art scrubbers. Out of a total investment of about one billion dollars for 72Limberhand. 109

PAGE 116

the two newer plants, about three hundred million dollars was for the scrubbers alone. About thirty five percent of the total maintenance cost is for the scrubbers.73 The agreement also called for the Best Available Control Technology."74 The air quality monitoring agreement provides for three stations on the reservation to monitor for sulfur dioxide, nitrous oxide, suspended particula-tes and trace metals. In addition one site has a camera system that takes a visual record looking towards Colstrip to detect general visibility levels and any plumes from the plants.75 The monitoring is done by a third party and the information interpret-ed by this third party and provided to both the Tribe and the company.76 The third party selected 73Limberhand. 74 Agreement 4 75Mike Machler of GeoResearch, Billings Montana. Phone int rview with author, October 10, 1991. Geo Research runs the no*'toring stations and interprets the data for Montana Power and the Tribe. 76Agreement, 3. 110

PAGE 117

to do the monitoring was GeoResearch of Billings Montana.77 The Tribe established a Department of Environ-mental Affairs to, among other things, monitor this information. The head of this department is Jason Whiteman. Whiteman received two years of training under a geologist and has been in his position for fourteen years. Funding for the monitoring equip-ment and expertise is provided by MP. The original agreement called for ten years from the completion of Colstrip 4, which went on line in 1984. This monitoring system has detected no significant degra-dation in air quality since it went on line in 1980. GeoResearch has started reporting the data to the EPA.78 MP also provided $25,000 a year for five years to provide training. The third important part of the agreement was for impact assistance. These funds were supplied for five years starting in 1980. The funds were in I 77Jason Whiteman, Environmental Affairs Department, Northern Che enne Tribe. Interview by author, Lame Deer, Montana, July 9, 199 78Machler. 111

PAGE 118

three areas; $50,000 a year for law enforcement assistance directly to the Tribe, $10,000 a year for a Community Relations Fund designed to improve relations between the Tribe and the off-reservation residents, and $25,000 a year for three years for community planning directly to the Tribe.79 The Tribe was criticized at the time for selling their air quality in return for funds and employment.80 Perhaps the Northern Cheyenne could .have triumphed in court and have prevented the construction of Colstrip 3 and 4 They would then have lost the employment that they gained in the agreement, as well as the technical training and equipment for monitoring the air quality on the reservation. They also could have lost in court and been subject to the negative impact of the construction and operation of the generating plants with no mitigation funds or preferential employment. Continuing to pursue litigation would have contributed to the 79Agreement, 5-6. 80Ambler, 184. 112

PAGE 119

divisiveness and fractionation within the Tribe as well. How should the agreement between the Tribe and Montana Power be evaluated? Coal development adjacent to the reservation puts further stress on the economy and governmental structures of the Tribe, without the Tribe being able to capture some of the benefits. The preferential hiring agreement provides some Tribe members with relatively high paying, permanent jobs. This is good for them, but it creates resentments in other Tribal members who are not able to benefit from coal development. There is the possibility of creating or of reinforcing an elite within the Tribe composed of those members with employment at the mining and generating facilities, and the members of the Tribal Council government who administer the mitigation funds. On the other hand the Tribe was successful in asserting its rights under environmental protection legislation. MP was forced to recognize that designation of the reservation as a Class I air quality region gave the Tribe certain rights. 113

PAGE 120

Certain individual members of the Tribe are winners in terms of employment. Jobs at the generating plant and the coal mining operation are highly prized. But what seems to be a gain is not without negative effects. Integration into a lifestyle that is in conflict with traditional values might add to a sense of alienation in the workers and cause resentment on the part of those Tribal members who are not employed. In this sense, what the outside culture would see as an unalloyed good might in itself be a negative impact of development near the reservation. The perception that even under the preferential employment agreement non-Indians are more likely to be hired and that Tribal members that are hired are concentrated in lower-paying and less prestigious jobs, as well as being subject to racial prejudice on the job site, also creates strains 1n the fabric of the Northern Cheyenne society. On balance the agreement must be seen as a partial victory for the Northern Cheyenne. The air monitoring program gives the Tribe a valuable re-114

PAGE 121

source in enforcing the Class I designation, and the equipment and expertise necessary to do monitoring probably would not have been acquired without the agreement, although without the presence nearby of the generating plants this equipment and expertise would be unnecessary. The preferential hiring program is also a mixed benefit. These jobs probably would not be held by Northern Cheyenne without preferential hiring enforced by the agreement, but these jobs are also disruptive to traditional Cheyenne value systems and divisive within the Tribe. Coal Leases--Round Two The second round of Tribal involvement with federal coal leases carne with the Powder River I sale 1n 1982. These coal leases were on federal land to the north, east and south of the reservation. These leases were on lands that had significant historical and cultural value to the Northern Cheyenne. The Northern Cheyenne saw these lease sales as the most serious threat to their community 115

PAGE 122

since the coal leases on the reservation itself, in the 1970s. Using the courts and federal environmental regulations, the Tribe challenged the leases. They were successful in preventing development of most of the leases and in forcing WE to give the Tribe the same sort of mitigation concessions that MP had conceded to in order to build Colstrip 3 and 4. The Tribe learned from their mistakes in that negotiation process and gained an agreement from WE that corrected some of the deficiencies of the earlier agreement. Even with these successes 1n mind, this episode must be seem as only a partial victory for the Tribe. The pace of development was slowed and the Tribe gained some mitigation measures from the prlvate sector companies involved. Perhaps most significant, they forced a revision of how the Powder River EIS evaluated the Northern Cheyenne as a community; as a contemporary culture, and one with values different then those of the off-reservation communities. But this victory was not without its costs, including legal expenses, and further divi-116

PAGE 123

sion within the Tribe. Perhaps most significantly, the background question continued to be, how far could the Northern Cheyenne go in asserting their rights before the dominant culture would terminate their reservation? This episode illustrates important cultural aspects of my theoretical framework. The original EIS shows how the dominant culture deals with Indian societies as historical entities, important in an EIS only in terms of archeological sites, instead of contemporary, vital cultures. Further it shows the difference between the dominant settler culture and the Northern Cheyenne in views of land ownership and the importance of land. The dominant culture, and the original EIS, views land as a commodity, as real estate with a dollar value. The Northern Cheyenne view land as the basis for the continued existence of their culture, as distinct from immersion within the surrounding dominant culture. Finally in cultural terms, this section contains a brief summary of Northern Cheyenne cosmology. The reader is cautioned that the treatment here is inadequate for a 117

PAGE 124

comprehensive understanding of traditional Cheyenne beliefs. It is included for the purpose of illustrating that perhaps traditional Northern Cheyenne values are truly irreconcilable with those of liberal capitalism. From one point of view, there is no acceptable method of development of coal resources, nor are there any mitigation measures worth consideration. Powder River Coal Leases All eight tracts offered in the lease sale that came to be known as Powder River, two of them new mining sites and six expansions of existing sites, were just outside the edges of the reservation, and were identified by the Department of the Interior in a process that started in 1979. This process included assessment of environmental impacts and social impacts on the surrounding communities. Bids were received and accepted on six of these sites, and leases actually issued on five of the sites. Three of the leases issued were for expansion tracts 118

PAGE 125

at Colstrip, one was for an expansion tract at West Decker, and one was for a new mine at Cook Mountain, 12 miles east of Ashland Village.81 The NCT filed suit in 1982, before the lease offering, in U.S. District Court for the District of Columbia against the Secretary of the Interior.82 The Tribe's argument was that the original EIS was inadequate in assessing cultural, social and economic impact on the Tribe from the coal lease sales. The request by the Tribe to issue a temporary restraining order was denied and the sale took place. The case was transferred to the U.S. District Court in Montana. 83 In their suit, the NCT objected to the EIS on the grounds that it was totally inadequate in its assessment of the impact of the new and expansion mine sites on the Tribe. This was not an aberration in terms of how the federal government treated Indi-81For a detailed explanation of the process see Powder River 82Northern Cheyenne Tribe v. Hodel, 1985, 2. 83Powder River I. 119

PAGE 126

ans in environmental impact statements in general. These documents usually referred to Indians in the past tense in terms of archaeological sites that might be disturbed.84 Secretary of the Interior James Watt ignored the protests of the Tribe and proceeded with the sales, the largest federal coal lease sale up to that time. The District Court judge in Billings, Montana, was (and is) James Battin. Judge Battin issued an order on May 28, 1985, canceling the leases pending completion of a supplemental EIS, although he later amended that order to allow mining to continue on the Colstrip expansion tracts. The other two tracts remain in suspension. The order directed the Secre tary of the Interior to prepare the supplemental EIS and to reconsider whether the five coal leases should have been issued. Further, Judge Battin held that the Secretary of the Interior had violated the National Environmental Policy Act, the Federal Coal Leasing Act, and the federal trust responsibility to 84Ambler, 232. 120

PAGE 127

the NCT.85 The case had not reached final disposi-tion as of the fall of 1991. The Federal Coal Leasing Act as amended by the Federal Coal Leasing Amendments Act of 1976 requires that a regional EIS be prepared in accordance with the National Environmental Policy Act (NEPA) This EIS must consider ... the environmental impact of the proposed action, any adverse environmental ef-fects which cannot be avoided, ... and alternatives to the proposed action. "86 These environmental effects are not strictly limited to areas such as air and water quality but include economic and social im-pacts. The Department of the Interior's own tions define effects broadly to include ... ecologi-cal ... aesthetic, historic, cultural, economic, so-cial, or health, whether direct, indirect, or cumu-lative. "87 Battin rejected the argument by the De-partment of the Interior that EIS criteria should be 85The Northern Cheyenne Tribe v. Hodel, in Powder River I, 19 5. 86NEPA, 42 U.S.C., quoted in Battin, 10. The complete text of th's order and related court documents is found in Powder River I. 8740 C.F.R. 1508.8(b), quoted in Battin, 11. 121

PAGE 128

strictly limited to physical environment. The Department of the Interior itself recognized the necessity to examine the social and economic effects of coal development. The Department argued that the impacts on surrounding populations had been evaluat-ed, and that the Northern Cheyenne are included in these evaluations. When all is said and done, plaintiff's complaint is that the Environmental Impact State ment does not deal with the effects of the Powder River Sale on Indians. Rather, it deals with Indians simply as people affected by the sale and their reservation as any other real estate [emphasis added] in the sale area. This was a conscious decision of the Department of the Interior. Prior to the preparation of the EIS the Interior team considered whether Indians would be affected as Indians rather than as individuals in the sale area and it was determined that they would not. The environmental analysis was, therefore, continued without regard to the tribe as a tribe but as potentially affected citizens in the sale area.88 This statement reveals the gulf in understand-ing between the dominant culture and the less-power-ful culture. The insensitivity and lack of under-standing of the Department of the Interior towards I 88Federal Defendants'. Opposition to Plaintiffs' Motion for a Te porary Restraining Order at 11, quoted in Battin 16. 122

PAGE 129

the Northern Cheyenne culture serves as an indictment of the Department. The Department did not treat the Northern Cheyenne as a separate culture, a culture that depends for its integrity on ownership of a specific piece of land. Instead the land of the reservation was treated as a commodity, as a piece of real estate. The cultural, social and economic effects of a proposed project will vary with the different cultures impacted. The culture of the Northern Cheyenne is different than the culture of the surrounding mostly white communities. The dominant culture treats land as a commodity, one that can be replaced with money. The Northern Cheyenne culture does not see land as a commodity. Nor are the Northern Cheyenne atomized, individual landowners. The loss of the reservation or negative impact on the reservation can not easily be mitigated, if at all. If any federal bureaucracy should be expected to be sympathetic to the interests and attitudes of Indian tribes, it should be the Department of the Interior, which includes the BIA. 123

PAGE 130

The initial EIS did include analysis on social and economic effects on the communities of Ashland, Broadus and Hardin. Areas of analysis included population increases, schools, medical facilities, law enforcement, housing and employment. The initial EIS failed to apply this analysis to Lame Deer, even though it is larger than some of the off-reservation communities, and did not consider the Tribal government. One of the most serious deficiencies of the original EIS was its failure to take into account the different position of the reservation from off-reservation communities in terms of benefits from the state coal severance tax. Off-reservation communities received assistance from this source of funds; the reservation did not. Battin found that the Department of the Interior did not meet the requirements of the National Environmental Protection Act and its own interior regulations. He also held that a similar obligation exists under the Federal Coal Leasing Act Amendments. 124

PAGE 131

The decision also found that the Department of the Interior had not fulfilled the trust relationship that the federal government has towards recognized tribes. This relationship required the Secretary to" ... [c]arefully disclose and consider significant impacts of the proposed coal development on the Tribe."89 The specific relationship between the United States and the NCT is based on treaties signed in 1825, 1868, and 1877; on the IRA of 1934 and the Northern Cheyenne Tribal Council government organized under that act and recognition of the Constitution and By-Laws adopted by the Tribe by the Secretary of the Interior; by a decision issued on June 4, 1974, suspending the coal leases on the Northern Cheyenne reservation in which Secretary of the Interior acknowledged his responsibility to protect the culture of the NCT; by an act of Congress in 1980 which rescinded those same coal leases, based in part on questions whether the issuance of the leases by the Department of the Interior violated the trust responsibility; and finally by the Hollow-89Bat tin, 23. 125

PAGE 132

breast and Nance decisions, which judicially recognized the fiduciary nature of the trust relation ship.90 Failure to consider the special situation of the Tribe and then to treat the Tribe the same as other citizens in the region violated the trust responsibility of the federal government. After this initial order from Battin's court, the lawsuit has gone through a confusing process. The holders of the coal leases appealed the order canceling the leases. The expansion leases at Colstrip were allowed to continue, but the expansion lease at West Decker and the new mine at Cook Mountain were not allowed. The same order, issued on October 6, 1986, called for the Secretary of the Interior to prepare a supplemental EIS to correct the deficiencies of the original. The Tribe appealed part of this order to the 9th Circuit Court in San Fransisco. The position of the Tribe is that even if the deficiencies of the EIS were corrected, the Coal Leasing Amendments Act requires consulta-90Battin, 24-25. 126

PAGE 133

tion with the Tribe.91 The 9th Circuit Court agreed with the Tribe and sent the case back to Battin's court. Battin conducted six hours of hearings in Billings in April of 1991 and then asked the Tribe, the energy companies and the Department to negoti-ate. The Tribe proposed that they receive a portion of the federal royalty on the coal.92 These negoti-ations broke down and evidentiary hearings were scheduled for September 23, 1991, in Billings. The government's position is these hearings are required to determine whether the leases should be canceled and what process is required by the Coal Leasing Amendments Act. The supplemental EIS is not sufficient as a basis for fixing the flawsin the leasing process. Battin, on the other hand, feels that the Secretary is in error. He has complained about the glacial pace of the litigation (it had been more than nine years since the original sale), and he felt that the Secretary should use the supplemental 91James Boggs, expert witness for the Northern Cheyenne Tribe, e interview with author, 12 July, 1991. 92"Cheyenne Seek Part of Royalties," Lakota Times, May 3, 1991. 127

PAGE 134

EIS to decide whether the leases should have been issued or not.93 The supplemental EIS is a much improved docu-ment over the original.94 The social and economic effects document produced by Mara Feeney is over two hundred pages, plus appendices. Sherri Deaver of Ethnoscience prepared a document on cultural im-pacts, with the help of Tribal elder Bill Tallbull. The documents cover effects on both the Northern Cheyenne and Crow reservations. The social and economic effects portion is probably closer to the type of analysis that is usually found in an EIS. Possible impacts that are studied include population growth, unemployment, education levels of the work-force, income trends, cost of living trends, hous-ing, public utilities, law enforcement, fire protec-tion, health care, education, social services, rec-reation and transportation. Two areas where the analysis might be different from an EIS that was not 93Ed coordinator of this case with the regional office of he BLM, Billings Montana. Phone interview with the author, 8 AU st 1991. 94Srnall; Shoulderblade; Boggs. 128

PAGE 135

concerned with an Indian tribe are effects on tribal government and on social organization. The Cultural impact portion of the study is in essence an anthropological analysis. Great stress is placed on the traditional Northern Cheyenne worldview and religion. An understanding of Northern Cheyenne cosmology will illustrate the profound differences in cultural values between the Northern Cheyenne and the dominant culture. To a Tribal member who holds the traditional views, no coal mining is acceptable and no mitigation measures are useful. Northern Cheyenne Cosmology Part of the revised EIS was a document on predicted cultural impacts to the Northern Cheyenne and the Crow Tribes from the Powder River leases. This was produced by an ethnologist from Billings, Montana, working together with a Tribal member, Bill Tallbull. Tallbull is a faculty member at Dull Knife Memorial College in Lame Deer, and is regarded 129

PAGE 136

as an Elder of the Tribe and a spokesman on reli-gious and environmental issues. The Northern Cheyenne worldview is based on the principle that humans are a small part of a universe that is animate and should live in harmony with nature.9s Stated this way, this view has little impact. To start to understand how this religious view relates to coal mining requires a deeper level of examination. A useful place to start is the topography and characteristics of the Earth Surface Dome (Votostoom). The hills on this dome contain the spirits of animals and spirits waiting to be reborn, including the spirits of extinct animals. These extinct species are not allowedby Maheo (the Creator) to be reborn. The increasing rate of ex-tinction 1s due to Maheo protecting them from de-struction due to industrial development. Exposed cliffs and badlands are Deep Earth. Deep Earth is inanimate. Mountain tops and other high places are I 9sThis discussion is drawn from Sherri Deaver and Bill Tailbull, Cultural Impacts to the Northern Cheyenne and Crow Tribes Powder River I Federal Coal Leasin (Billings, Montana, Bureau of and Management, 1988). 130

PAGE 137

places of spirituality, reaching to the Nearer-Sky Space. Surface waters such as rivers are alive and have spirits that come to be associated with the people living nearby. Springs are also special places of spirituality, associated with three different kinds of spirits. Surface mining affects springs, sometimes causing them to go dry, thus destroying the spirits associated with them. Mining also destroys the small buttes that are common in southeastern Montana, destroying places of spiritual significance and the spirits that live there. The people that live near Ashland Village near the Tongue River have a special relationship with this river and its spirits. They fear that mining activities will pollute the river. Finally, surface mining turns the living Earth Dome into Dead Earth. It is impossible for humans to live in space that is spiritually inert and cosmologically dead. The plants that inhabit the Earth Surface Dome are relatives of the human beings. These plants are not only used in spiritual and healing ceremonies, 131

PAGE 138

but themselves have spirits. These plants require the same things as humans do, fresh air and water. A Cheyenne may develop a personal relationship with a certain tree and maintain this relationship through his or her entire life. The relationship may include the sacrificing of flesh to the tree. Pollution from coal fired generating plants is already making some plants unsafe to gather and use in ceremonies, forcing the gatherers to travel further. The .Earth Dome is also where the animals live. Body parts of different animals are used in many healing and spiritual Mining drives the animals away. The Nearer Sky Space includes the tops of mountains and clouds. It is the horne of the Great Birds such as eagles and hawks. These Great Birds act as emissaries between the spirit realm and humans. Any thing that makes it difficult for the Great Birds to live makes it difficult for humans to communicate with the spirit world. Finally, there are many specific sites of importance near the reservation. Before the bound-132

PAGE 139

aries of the reservation assumed their present form many Cheyenne families lived in the areas east of the Tongue River. There are burial sites, homestea-ds, sweat lodge and Sun Dance sites, and battle and historical sites that would be destroyed by mining. Even if not directly destroyed by mining this area would be affected by pollution and loss of privacy. This area is still used by the Cheyenne for ceremo-nial purposes which require privacy. The Cheyenne have little faith reclamation. The traditional perspective is that mining destroys the living nature of the Earth Dome and that cannot be restored by human intervention.96 From this point of view there can be no effective mitigation measures for the impacts of coal mining except for no mining. The Sacred Arrows are one of the two most im-portant sacred, ceremonial objects of the Cheyenne. The Arrows were brought to the Cheyenne by their most important historical figure, Sweet Medicine. 96See Appendix B for an evaluation of the reclamation program at osebud Mine at Colstrip. 133

PAGE 140

The Arrows now reside with the southern branch of the Cheyenne, in Oklahoma. They are rarely brought to Lame Deer, only for the most important ceremonies. In the 1970s an Arrow Ceremony was held on the reservation. The Arrows were asked to help the Northern Cheyenne resist the lure of coal development. According to a traditional Northern Cheyenne, anyone who wanted to develop coal would be speaking against the arrows. 97 The Deaver study is important in that it shows that it is not possible to reconcile traditional Northern Cheyenne religious beliefs with any level of mining. Reclamation is not sufficient to return the land to the state it was in before mining. There seems to be such a deep and basic clash of values between this point of view and that of anyone, Northern Cheyenne or not, who would propose to solve the problems of the Tribe by development of the coal resources on the reservation, to leave no room for compromise. 97Tallbull 134

PAGE 141

Powder River Resolution The social and economic effects portion of the revised EIS examines what impacts on the Tribe could be expected from different levels of activity, ranging from no new federal coal leases in the Powder River Basin to fifteen new leases.98 We have seen some of the general considerations in assessing impacts to the Tribe of coal mining off the reservation. The crucial part of the revised EIS is that it indicates that economic and social effects to the Tribe from the three expansion sites at the Rosebud mine near Colstrip would be minimal. These three sites are now (fall of 1991) the only substantive issue in the Powder River I coal lease sales. All of the other successful bidders have asked to be allowed to withdraw.99 This makes the issue of effects on the reservation of large scale development of new coal mining sites immediately adjacent 98Powder River I, 9 99James Boggs, phone interview, July 12, 1991. 135

PAGE 142

to the reservation moot, at least for the time being. Based on the final EIS the Secretary of the Interior on 20 September 1991, signed a record of decision finding that activity on these expansion sites did not require mitigation of economic impacts, but only of cultural and social impacts.100 The record of decision recommends a revised cultural resource stipulation to inventory and identify sites of religious or cultural significance on the expansion tracts along with an ethnographic study. If sites are identified the Northern Cheyenne Cultural Resources Board will be contacted. The decision whether or not to mine or to protect any religious or cultural sites identified would probably be made in accordance with the principles laid out in Lyng v. Northwest Indian Protective Association. 101 The principle here is a balancing of the public interest against the value of the religious sites. In Lyng construction of a road and timber 100Hughes. 101485 U.S. 439, 108 S.Ct. 1319 (1988). 136

PAGE 143

cutting operations in a sacred area was permitted. Lyng has been criticized as a critical diminution of Indian nation sovereignty. The Secretary's finding becomes effective thirty days after publication in the Federal Register. 102 Before the September 23rd evidentiary hearings in the Powder River I case the Tribe and WE reached a settlement. This agreement corrects one of the major deficiencies of the MP agreement in that it applies to WE provisions in terms of preferential hiring and impact assistance. In exchange for the Tribe dropping its objections to the expansion tracts at Rosebud, WE agrees to provide $100-,000 a year for ten years to the Tribe. These funds will be administered by the Tribal President. WE also agreed that fifty percent of all new employees at the mining operations would be Tribal members and WE will provide reports listing hires and discharges of these new employees. A weakness of the agreement that it does not specify whether the new hires will be in management, the trades, or as unskilled 102Hughes. 137

PAGE 144

laborers. The provisions apply to subcontractors of WE. A scholarship. program will be continued that provides for four Northern Cheyenne Tribe members a year to attend area colleges, and a bus service from Lame Deer to Colstrip will continue to be supported by WE. 103 This agreement is stronger than the one with MP in that preferential hiring applies to Northern Cheyenne and not all Indians and there are stronger provisions for listing of job openings and tracking of new hires. Tribal Politics The central characteristic of tribal politics is the conflict between the 'progressives' and the 'traditionalists.' Typically the progressive faction is identified with the Tribal Council government, particularly the Tribal Council President and the members of his staff. The traditionalist faction is often excluded from any meaningful role in the Tribal Council government. This is certainly so 103Hughes. 138

PAGE 145

in the Northern Cheyenne and Mescelaro Apache Tribes. The Tribal Council governments are a result of the IRA. Therefore, one of the most important sources of division within these two Tribes plays itself out in the context of a political system imposed by the dominant culture. This conflict can be seen in cultural terms. The progressive factions are, almost by definition, more assimilated into the values of the settler culture. In the case of Edwin Dahle, it can be argued that he is not a Northern Cheyenne at all, as I will show. Tribal politics also fits into the political economy aspect of my framework. Dependency theory predicts the creation of a local elite who will identify more with the values of the more-powerful economy than with their own. Further, the ability of this local elite to gain access to the material benefits of the dominant economy will create resentments within the members of the less-developed economy that are denied access to these benefits. The United States government supports the Tribal Council 139

PAGE 146

governments as the only legitimate representatives of the interests of the tribes. Agencies such as the BIA or the Department of the Interior regard decisions made by the tribal council system as legitimate and representing the interests and will of the people of the Tribe, even though this may not be true. Any discussion of Tribal politics is difficult and dangerous for the outside observer. Traditionalists within the Tribe are reluctant to speak to a researcher from the dominant culture. Misunderstandings and miscommunication occurs readily. Tribal members, whether traditionalist or progressive in orientation, are reluctant to air their differences to an outsider. There is a tendency for an outside observer of tribal politics to magnify differences and to minimize the basic underlying unity of a homogenous group such as the NCT. The very classification scheme that divides Tribal members into traditionalists or progressives is artifi140

PAGE 147

cial, in many ways carrying on the dishonorable tradition of the IRA. 104 In many instances traditional structures of organization are themselves somewhat artificial. Conquest, reservation life, and assimilation has led in many tribes to an extinction of many or all of the traditional forms. In some tribes, the tradi-tions have been preserved; in some tribes the tradi-tions have been revived; in some tribes the tradi-tions have disappeared. The Northern Cheyenne fall into the middle category. The traditional forms of organization, what the dominant culture calls government and law, were eclipsed for many years. Yet the traditions remained, and in the climate of resurgent Indian nationalism of the 1970s, many of the traditional societies were revived. In many tribes, traditional 104I will not pretend that this section is a rigorous analysis. It presents what an outsider can pick up in a few visits to a reservation, in a few conversations. In a way, these visits and co1 ersations were frustrating. I had enough time to spend on and ne r the reservation to get to know a fair number of people, and fo these people to lose some of their distrust of an outsider come tolpry into their affairs. By the time I felt that I was making pr gress, I had to leave again. 141

PAGE 148

belief systems have become increasingly important to some of the middle-agedand younger tribal members who are alienated from the tribal council government system. The traditional forms are seen as a way to deal with alcoholism and drug abuse, and as a way to rebuild tribal pride. From my own conversations with many Indians of different tribes, I can state that the movement to return to at least some of the traditional values is very strong among Indians who live in the Denver area. My starting theoretical framework was Llewelly-n' s Cheyenne Way. 105 This work describes Cheyenne jurisprudence as an example of 'primitive' law, or rather the systems that served the Cheyenne needs for both law and government. The 'Cheyenne Way' was based on principles of inclusion, fairness, consen-sus and restitution. Liberal democracy is based on principles of hierarchical power, exclusion and retribution. The two approaches to solving the same problems are essentially incompatible. The tribal 1 105Karl N. Llewellyn, and E. Adamson Hoebel. The Cheyenne Wav: Co lict and Case Law in Primitive Juris rudence (Norman, Ok] homa: University of Oklahoma Press, 1941) .. 142

PAGE 149

council form of governments imposed on Indian nations by the IRA has difficulties in integrating the wisdom of the traditional forms. In most instances, IRA governments act to exclude the members of the tribe that retain knowledge of the traditional ways, the elders of the tribe. The whole tribe, traditionalists and progressives alike, suffer when this happens. The U.S. government recognizes the Tribal Council government as the sole legitimate representative of the NCT. The Tribal Council government was set up under the IRA of 1934 and in form resembles a liberal democracy. The Tribe adopted its constitution in 1936, and amended it in 1960. There is an executive, the Tribal Chairman, a legislative branch, the 24 member Tribal Council and a judicial branch, the Tribal Court and Tribal Appellate Court. The Tribal Chairman and Tribal Council members are selected by election by registered Tribal members. The Chairman serves for a four year term and the Tribal Council members for two year terms. The business of the Tribe is conducted much as a small 143

PAGE 150

city would. There are Council meetings monthly, the Chairman has a staff, there are various bureaucratic departments and a Tribal lawyer. 106 The current Tribal President is Edwin Dahle. Dahle was elected in 1988 for a four year term. Dahle was instrumental in the.successful effort by the Tribe to cancel the 1970s coal leases. I will discuss Dahle and his present role it Tribal poli-tics in a separate section. The Tribal President is the most important single person within the Tribal Council system, due to two factors. First, the President serves a four year term as opposed to two year terms for the Trib-al Council. Second, the President has a staff to support him. The President's administrative assistant is Tony PrairieBear. According to PrairieBear, the Tribe must be run as a business in order to provide the benefits that the people need.1m He sees coal 106For a discussion of Tribal governments see O'Brien. 107Tony PrairieBear, interview with author, Lame Deer, Montana, Ju 24, 1991. 144

PAGE 151

as the best asset that the Tribe has, and as such it should be developed. It is difficult for the Tribe to develop capital in any other manner. The Tribe needs capital to found a bank and other businesses, in order to keep money on the reservation. The capital needs of the Tribe are great, and the re-sources that the federal government offers are com-pletely inadequate. PrairieBear feels that reclamation of mined land is possible. Development of coal could put the Northern Cheyenne in the position of being a power-ful political force in southeastern Montana. The Tribe has adapted to many different economic forms and now is the time to adapt to the modern world. Another important member of Dahle. s staff is the Tribal lawyer, Cal Wilson. 108 Wilson is Dahle's nephew. Wilson did not have much to do with the Tribe's litigation against the Department of the Interior, MP and WE. Those cases were handled by specialists. The most important case Wilson has 108Calvin Wilson, interview with author, Lame Deer, Montana, 19, 1991. 145

PAGE 152

been working on has been negotiations between the Tribe and Montana to settle water rights for the Tribe. Water rights litigation involving Indian reservations are complex, even for water law. The important aspect in terms of this discussion is that Wilson, and presumably Dahle, feels that it is im-portant to avoid litigation in state courts over the Tribe's water rights. Wilson has concluded an agre-ement with the state. Implementation of .this agree-ment is contingent on approval by Congress. Many of the traditionalists feel that the water compact is not in the interests of the Tribe. Another important progressive Tribal member is Adeline Whitewolf. Whitewolf is a Tribal Council member, and Chairperson of the Northern Cheyenne Economic Development Cornrni ttee. 109 Whi tewol f agrees with Dahle, PrairieBear, and other progres-sives that coal development is the key to future prosperity for the Tribe. She feels that an agree-ment to develop coal is very close, perhaps includ-109Adeline Whitewolf, ana, June 20, 1991. interview with 146 author, Crow Agency,

PAGE 153

ing construction of a generating facility that would be owned by the Tribe. She would like to see the Tribe in partnership with a coal company, involving joint ownership. The Northern Cheyenne would be educated in the coal business and then run it themselves. Whitewolf feels that any coal development agreement needs to be submitted to the Tribe in a referendum, and feels that such a referendum would pass. Dahle, PrairieBear, Wilson, and Whitewolf constitute a representative cross-section of the progressive element in the Tribe. Only Whitewolf is full blood Northern Cheyenne and speaks the language. Dahle and Wilson have small blood quanturns, PrairieBear is a Lakota. They see that the Tribe is in desperate need of jobs and development capital, and they see that the surrounding communities have benefitted from coal development. They feel that it is their duty to the Tribe to use the Tribe's best asset in a responsible manner, capturing the greatest possible fraction of the value of the coal, to benefit the Tribe now and in the future. 147

PAGE 154

The Traditionalists Before conquest and imposition of the IRA government the Cheyenne were ruled by elders of the Tribe .110 These elders were organized into the Council of Forty-four and the Military Societies. Also important were medicine men and women. The Council of Forty-four was composed of men of the Tribe who were generally regarded as possessing wisdom and vision. They were expected to place the interests of the Tribe above all other considerations and to provide an example of proper Cheyenne behavior. They were selected once every ten years and represented the ten bands that made up the Tribe, four from each band. Four of the forty-four were of greater stature and were selected from the previous term's forty lesser chiefs. These four 110Llewellyn and Hoebel. 148

PAGE 155

served for life or until they retired. The other forty were selected by their predecessors. Decisions made by the Council of Forty-four applied to the Tribe as a whole and were reached after discussion and consultation with the people and the military societies. The six military societies were also men's social clubs. The membership of the military societies cut across band membership, and they were responsible for conducting warfare, protecting the people, and organizing the movement of the people during migrations and hunts. They were also instrumental in organizing ceremonies, particularly the Sun Dance. Medicine men and women conducted ceremonies, aided in vision quests, conducted healing ceremonies and were responsible for maintaining knowledge of the uses of plants and animals in healing ceremonies. Among the Northern Plains Indians societies the Cheyenne system of government was one of the most sophisticated and organized. The members of the 149

PAGE 156

Tribe were both subject to the law and participants 1n the fashioning of that law. Decisions were made by the Council of Forty-four that affected the en-tire Tribe, but they were not made on the basis of arbitrary power. Every important decision was dis-cussed at length in the Council and sent to the Societies for consultation. When a decision was made it was the result of widespread consensus among the people of the Tribe. Homicide was very rare among the Cheyenne. When it did occur it was the responsibility of the Tribe to deal with the offend-er. The punishment was banishment for four years, and the criminal could never serve on the Council. This illustrates that justice and law among the Cheyenne was not a personal matter but rather was the responsibility of the entire Tribe and a form of government that enjoyed a level of legitimacy that we can envy. Conquest and confinement to reservations led to assimilationist policies. These included suppress1on of the Sun Dance, allotment, education of Chey-enne children in boarding schools, and in general a 150

PAGE 157

J fr suppression of traditional methods of social organi-zation. The traditional form of goverrunent was re-placed with an IRA goverrunent in 1935. The tradi-tional societies went into an eclipse that did not end until the period of renewed Indian activism and self-awareness of the 1960s and 1970s. The traditional societies have been reorganized on the Northern Cheyenne reservation, and Sun Dance ceremonies have been performed annually since 1972, some years more than once. The piercing ceremony was revived in 1982.111 There are four main soci-eties active on the reservation today. The Dog Soldiers reorganized in 1973, the Chiefs, Elkhorns and Kit Foxes reorganized about 1982. What role are the elders of the Tribe playing in the internal politics of the Tribe in 1991? According to a spokesman for the societies,112 the elders of the Tribe" ... have been observing and silent on many issues concerning the destiny of the 111Feeney et al., 7. 9. 112Steve Brady, interview with author, Lame Deer, Montana, ber 15, 1991. Most of the information in this section is drawn this interview. 151

PAGE 158

people ... and have ... decided to assume responsibility for the people." The Societies were approached by the people of the Tribe who felt that the Tribal Council for.m of government was illegitimate, and according to the responsibilities of the Societies, they honored the request of the people. On March 20, 1989, the Elders told the Tribal Council that they did not recognize them as the leaders of the people. The Elders are the leaders of the most traditional portion of the Tribal society. Many of them are not fluent in English, and they appointed young men trom each of the Societies to look into allegations that the Tribal Council and Tribal administration were not representing the best interests of the people. These young men are fluent in English both as a spoken and as a written language, while at the same time are versed in traditional customs. They formed a task force. The coordinator of this task force is Steve Brady, whose training is as a paralegal. 152

PAGE 159

Questions of Legitimacy The central question here is which form of government is the legitimate representative of the people, the Tribal Council government organized under the IRA or the traditional government. The Tribal Council draws its legitimacy from the IRA Constitution; the traditional societies draw their legitimacy from the history of the Cheyenne people. Accordingly one of the first concerns of the task force was to investigate the documentary history of the ratification of the IRA Constitution. When they approached the Tribal Records office, the task force was told that there were no records. 'They asked the area BIA office in Billings and the area officer, Joe Fox. They were told that the only documentary evidence is a voting tally of the ratification vote. The position of the task force, the Elders and the Societies is that the IRA government is a creature of the federal government and is not legitimate. The traditional form of government is the true representation of the will of the people. Specific 153

PAGE 160

recent issues that the Elders are concerned about include timber sales on the reservation, the possible development of coal on the reservation, exploration for natural gas and methane on the reservation, and a recently negotiated water compact, as well as the Tribal Council system. Steve Brady alleges that the present Tribal Council government is not only illegitimate, but corrupt, self-serving, fraudulent, and engaged in mismanagement. The task force objects to decisions made by the Tribal Council and Dahle not as much on the grounds of their content but more on the process. The task force and the Elders feel that decisions are made and agreements with off-reservation entities negotiated solely by Dahle and other members of the Tribal administration. The Elders and the task force also object to Edwin Dahle serving as Tribal Chairman. They allege irregularities and fraud in the nomination and election processes. They also feel that the Chairman must be at least one half Cheyenne blood and be fluent in the Cheyenne language. Dahle is neither. 154

PAGE 161

They feel that these issues have never been ade-quately addressed. At times Dahle acts as judge on issues concerning his own performance. At other times the Tribal attorney, his nephew Cal Wilson, rules on legal issues concerning Dahle. There is no clear division between the officeof the executive and judicial officers .113 After Dahle's election the Tribal Court called for a new election and the Tribal Appellate Court upheld that decision. The complaint went to the Tribal Council and the Council voted to have a hearing on the issue. Edwin Dahle vetoed this vote. The task force in September of 1991 occupied the Tribal government offices for one day to protest Dahle's administration. They then set up a camp near the government offices and have continued their protest. The camp was struck in the fall of 1992. The Elders and the task force also object to a Constitution Revision Commission that was meeting I 113Susan Braine and Rob Stapleton, "Northern Cheyenne Controve sy Continues," Lakota Times, February 6, 1990; "Northern Ch1 enne Leadership Facing Tribulations," Lakota Times, January 30, I 1990. 155

PAGE 162

1991 to consider revision of the present Constitution. The Elders are not represented on this Cornmission and they feel that it is no more legitimate than the original IRA Constitution or Dahle's administration. Edwin Dahle and Coal Development on the Reservation Edwin Dahle was central in the Northern Cheyenne regaining control of their reservation coal resources in the 1970s. It was Dahle who first approached George Crossland, an Osage Indian on the BIA staff, about the coal contracts held by Peabody and other companies on half the reservation land. This resulted in the Tribal Council hiring Steve Chestnut to fight the coal leases and the eventual canceling of them. Dahle was also instrumental in the redesignation of the Northern Cheyenne reservation to Class I air quality status, 114 which led to the agreement with MP requiring highly efficient scrubbers, preferential hiring and impact assis-114Arnbler, 65 and 184. 156

PAGE 163

tance. As Tribal Chairman Dahle has been responsible for bringing the Powder River suit to resolution in an agreement with WE that extends preferential hiring and impact assistance provisions to that company. Dahle's impact on the history of the Tribe has been enormous, and it is hard to see how it could be argued that it has been completely a negative one. On the other hand Dahle is probably justifiably seen as not responsive to the concerns of the traditionalists. He also is actively involved in trying to negotiate an agreement with private sector energy companies for a mining and/or generating operation on reservation lands. Dahle envisions a 1,000 megawatt power plant with a 500 kilovolt transmission line for sale of power to Wyoming, Idaho and California. lE One possible site for such an operation would be on the Tongue River. Dahle does not want to lease the coal for a low royalty rate, but rather is pursuing a partnership, limited venture or joint venture with an energy company. This would provide 115Dahle. 157

PAGE 164

the Tribe with a partnership interest 1n the operation. Unemployment and poverty are serious problems on the reservation and development of the most valuable resource that the Tribe owns seems to Dahle to be the proper response. This conflicts with the. views of not only traditionalists, but also with many of the more progressive elements of the Tribe. They feel that coal development threatens to destroy the physical resource that makes possible the continued existence of the Tribe as a separate cultural group, the land of the reservation. Further, Dahle feels that a decision on whether the Tribe should sell some of its coal should not go to a referendum but should be made by the Tribal Council. If the Tribal Council form of government is accepted as legitimate it still seems as though a decision of this magnitude should go to referendum. If the traditional forms of government are regarded as the legitimate government for the Cheyenne people, a decision such as this could only be made after long discussion among the people and consultation between 158

PAGE 165

the people and the leaders had resulted in a consensus. From either perspective the actions of the Chairman can be seen as arbitrary and illegitimate. The prospect of coal development on the reservation itself presents the same problems that the Tribe objected to the construction of Colstrip 3 and 4 and the Powder River leases. The revi9ed EIS projected that the economic effects would include an accelerated differential growth rate between the reservation and the white communities just off the reservation. Without provision for non-resource based development on the reservation this situation would still exist. The religious considerations of coal development would be impacted more heavily. The revised EIS reported that the only mitigation strategy possible that would meet these concerns is no mining. There is little evidence of planning to create a reservation economy that would capture some of the dollars that would-circulate if coal on the reservation were developed. I am unaware of any planning being done to deal with the influx of non-Indian 159

PAGE 166

workers to build such a development. I am unaware of planning being done to meet the increased demands for social services that would result from such a development. Unless there is a great deal of careful planning done the development of coal on the reservation has the potential to undo all of the efforts of the past thirty years and to destroy the Northern Cheyenne as a viable culture, unique in the world. The Northern Cheyenne reservation is the only place in the world where Cheyenne are a majority. This land is totally owned by the Cheyenne people. Whether the land and the people could survive development is questionable. It is not and perhaps not useful, for an outsider to evaluate the positions of the various factions. It is possible to say with certainty that there is a great deal of division within the Tribe over the legitimacy of the Tribal Council government. The traditionalist part of the Tribe feels that they are being ignored, and it is certainly true that decisions have been made without the benefit of a full discussion by the people, for instance 160

PAGE 167

the agreement with WE to drop the Powder River suit in return for impact funding and a preferential hiring program. On the other hand the more progressive elements of the Tribal government feel that progress in addressing the serious problems of the Tribe is being impeded at every turn by the traditionalists. There is at least one other faction that exists somewhere in the middle of these two extremes. That group might be exemplified by Gail Small. She is not opposed to change, on the contrary she is working to establish a new school district on the reservation and to bring in some nonresource based development, but she is skeptical of the motives and legitimacy of the Tribal Council government and Edwin Dahle. Dahle does often give the impression that he has the power and authority to negotiate for the Tribe's future without gaining an explicit mandate in the form of a referendum. 161

PAGE 168

CHAPTER THREE THE MESCELARO APACHE TRIBE AND MONITORED RETRIEVABLE STORAGE In this chapter I examine a federal energy policy that presents unusual challenges in its complexity. It is complex in a technical sense, in that it involves concepts that in which most of us are not educated. It is complex in a political sense, in that this difficult science collides with the interests of a powerful institutional group, the 'nuclear establishment.' The federal energy policy is a decision on how to deal with the problems presented by spent fuel rods from civilian nuclear reactors. It is my aim that, even if you now know nothing at all about nuclear reactors, by the time you have finished reading this section you will have the basic knowledge required to understand the nature of the question, if not the proposed answer. The federal legislation that established the policy direction for disposal of spent fuel rods is 162

PAGE 169

Public Law 97-425. It was passed in 1982 and significantly amended in 1987. The nuclear establishment that I will refer to is a cross-institutional entity. It includes private sector energy companies that use nuclear reactors to produce electricity. Most of these are located east of the Mississippi; very few of them are located in the central Western states, that is the non-Pacific coast states. Other important players in the private sector are corporations that mine uranium, the source materialfor all processes dependent on nuclear reactions, and corporations that manufacture the necessary support systems, an important example being casks for transportation and disposal of nuclear waste. This establishment also includes a powerful government bureaucracy, the Department of Energy (DOE). The DOE has responsibility not only for civilian nuclear power reactors, but also for military reactors and nuclear weapons production. In Colorado we are most familiar with the DOE through the Rocky Flats facility, which was one of two fed-163

PAGE 170

eral facilities that produced plutonium triggers for thermonuclear explosive devices. The nuclear establishment is rounded out by academic authorities on nuclear power. Virtually all academics with a technical background sufficient to understand the science involved lack an equally rigorous training in policy analysis that would be necessary to be able to expect impartiality on the part of these experts. I will explain what a Monitored Retrievable Storage (MRS) site is and why it is being studied by the Mescelaro Apache Tribe. I will explain why federal energy policy, as expressed by the defining legislation, is driving this approach. I will examine the sources and nature of opposition to a potential MRS site on the Mescelaro reservation, at a state and local level. I will present some material on Tribal politics on the Mescelaro reservation. 164

PAGE 171

Introduction An MRS site is intended to provide short-term (40 years or so) storage for spent fuel rods from civilian nuclear reactors used to generate electric-ity. The term spent fuel rod is somewhat mislead ing,1 as the spent fuel rods need to be isolated from the biosphere for up to 10,000 years. They are perhaps the most dangerous and toxic byproduct that our technological society has yet devised. They will require a permanent storage site, permanent meaning longer than recorded human history. One aspect of U.S. government plans concerning disposal of spent fuel rods is relatively short term storage, known as MRS, Monitored Retrievable Storage. The Mescelaro Apache Tribe is currently con-sidering placing such a site on their reservation. They have progressed through the first two phases of a study process. This process was devised by the I 1Kemp Houck, Don't Waste U.S., "Spent Fuel Storage: State-ofth -Art Barrels, Same Old Rotten Apples," Atoms and Waste (Washingto', D.C.) volume 1, Number 10, (May 14, 1991). Don't Waste U.S. a private non-profit organization that follows nuclear waste 1ss es. 165

PAGE 172

Office of the Nuclear Waste Negotiator, and is designed help the Mescelaros to decide if they will make an agreement to place such a facility. Local political and citizen organizations, state officials and national anti-nuke public interest groups are extremely concerned. The non-energy federal policy that 1s important in this discussion is the IRA of 1934. IRA governments are in many ways not well suited to represent the wishes and interests of the tribal members. Traditional governmental structures in the Mescelaro Apache Tribe were very different from the liberaldemocratic model that is the basis for IRA tribal governments. I will show that there is a great deal of disagreement with the way the current Tribal Chairman, Wendell Chino, has used the IRA government to rule in what his opponents characterize as an undemocratic manner. The traditional government structures of the Apache were perhaps less developed than those of the Cheyenne. Criticism of Chino and his policies is not necessarily made in terms of a conflict between IRA and traditional government. 166

PAGE 173

Chino's critics feel that he has usurped all meaningful sources of power, that he runs the Tribe for the financial benefit of himself, his family, and his a1lies. This is possible because Chino has manipulated the IRA government to give a facade of legitimacy to his actions. The first section of this chapter will give some background information on Mescelaro Apache culture and history and demographics. The second section of this chapter will discuss the relevant nuclear waste issues, including the Nuclear Waste Policy Act of 1982, 1987 amendments to that act, and explanations of the technical issues involved. The purpose here is to build a context that makes it possible to understand the policy problem represented by high-level nuclear waste and the nature of the political solution that has been devised. The third section will apply the background material to the specific MRS proposal involving the Mescelaro reservation. This will lead into discussions on local politics, Tribal politics, interac-167

PAGE 174

tions between Tribal and +ocal politics, Tribal and state politics, and local and state politics. In theoretical terms, this discussion can be most easily understood in the context of the relationship that exists between a more developed econo my and a less developed economy, as this theory relates to Indian nations within the United States. Wendell Chino and the Mescelaro Apache Tribe fit into this model. Chino has done very well for himself, manipulates elections to .ensure his continued position of power, and may be in the process of negotiating for himself the biggest payoff ever. In fairness, I must say that difficulties of research make it hard to be absolutely sure of these conclu The subject of non-extractive development on the Mescelaro reservation presents another interesting area for analysis. On one hand, the Tribe has done very well in developing enterprises that are not dependent on exporting unprocessed commodities, much better than the Northern Cheyenne for instance. On the other hand there is a very real question 168

PAGE 175

about whether the benefits from this development have been equitably distributed among the residents of the reservation. The question of sovereignty of Indian nations is central to the discussion of the MRS proposal on the Mescelaro Apache reservation. As I will show, an assertion of sovereignty of Indian nations over state government is essential to the Nuclear Waste Negotiator, the Mescelaro Tribal Chairman and to the hired consultants to the Tribe, to advance their proposal. This chapter is weak in the role of traditional governmental forms of the Mescelaro Apache in the debate, and in Tribal politics in general. The important bureaucratic structure is the Department of Energy 169

PAGE 176

History and Demographics The Mescelaro Apache reservation is located in south-central New Mexico. The reservation was es-tablished by an executive order of President Grant in 1873, and later executive orders.2 The reser-vation is 460,661 acres, all of it Tribally owned. Individual members of the Tribe are granted the right to use specific tracts called assignments, but title to the land remains with the Tribe. The Mesc-elaro Apaches never entered into a treaty agreement with the United States. The executive orders establishing and expanding the reservation specified that the reservation was to be used for "Mescelaro Apache Indians and such other Indians as the Department may see fit to lo-cate thereon."3 Survivors of other Apache bands were placed on the reservation, including Lipans, 2Mescelaro Apache Tribe, "Mescelaro Apache Reservation: ral Information, pamphlet issued by the Mescelaro Apache al Council, no author, no date. Obtained by the author July from Tribal Council offices. 3Mescelaro Apache Tribe. 170

PAGE 177

Chiricahua and Warm Springs. When the Tribe was formally organized under the IRA, the Chiricahua and Lipans became members of the Mescelaro Apache Tribe. The newly organized Tribe numbered about 400; today 3,200 enrolled members live on the reservation. The Mescelaros are one of several Apache bands that lived in the present states of New Mexico and Arizona when the Spaniards arrived about 1541.4 There is question over how long before the Spaniards the Apaches had been there, perhaps five hundred years earlier, perhaps just before the Spaniards The name Apache was given to them by the Spaniard Onate the Colonizer in 1598. The accepted origin of the name is it derives from the Zuni word for enemy.6 The name for themselves was Dini. Linguistically the Apache are part of the Atha-paskan language group, as are the Navajo. According I 4C.L. Sonnichsen, The Mescelaro Apaches (Norman, Oklahoma: of Oklahoma Press, 1958), 32. This is truly a badly "":I tten book, but it seems to be the only history that deals sp cifically with the Mescelaro. 5Michael E. Melody, The Apaches: A Critical Bibliography (B oomington, Indiana: University of Indiana Press, 1977), 2. 6Sonnichsen, 32. 171

PAGE 178

to the linguistic and anthropological sciences of the dominant culture, the Apache and the Navajo mi-grated to what was to become the southwestern United States from western Canada.7 The Apache themselves, at least in traditional belief, place their origin in the deserts where the Europeans found them.8 Gran Apacheria, as the Spanish called the lands that the Apache considered their range, included all of New Mexico, and parts of Texas, Colorado, Kansas, Arizona, Oklahoma and northern Mexico.9 The Apaches in historical times were divided into Western and Eastern groups. Each group was composed of many tribes, the division between which is confusing and probably somewhat arbitrary. It is certain that the Apache themselves recognized these subdivisions; it is uncertain what the distinctions entailed. The Spanish, and later the Americans regarded the Apaches as a single political group, as 7Melody, 3. 8Donnalyn Torres, interview with the author, Mescelaro, New Me ico, June 1992. 9Melody, 3. 172

PAGE 179

a nation.10 This was an inappropriate attempt to understand Apache political organization in Western terms. The Eastern group included the Jicarilla, Lipan and Kiowa Tribes. The Western group included the Chiricahua, Mescelaro, and Western Apaches. Linguistically, the Navajos are classed with the Western group.11 Each Apache tribe was composed of bands that were 1n turn made up of local groups. These local groups were the basic social, economic and political unit. Usually but not necessarily these local subgroups were composed of several related families.12 For the most part the Apaches did not have tribal chiefs. Chiefs could command the loyalty of a local group. Leaders such as Cochise and Geronimo, who could exercise authority on a wider scale, were historical developments, in response to the need to organize large scale resistance to the Spaniards and Americans.13 10Sonnichsen, 33. 11Melody, 3. 12Melody, 4. 13Melody, 5. 173

PAGE 180

The Apache economy was based on hunting and gathering, combined with some raiding on the settled Pueblo Indians. After the Spaniards brought horses, as well as cattle and settlers, the mainstay of the Apache economy became raiding. They also engaged in a 'primitive' style of agriculture, one that did not force them into a sedenta:ry life. 14 The Americans annexed Arizona and New Mexico in The history of the confrontation between these two cultures is a fascinating and tragic story. In general, it followed the same pattern that contact between the Euro-American culture and indigenous nations usually did. The collision of cultures was not made easier by the understandable feeling among the Apaches that anyone who passed through or settled on their lands was fair game for raiding. The Apaches resisted final conquest later than any other Indian group in the United States. Their final great warrior, Geronimo, was finally captured, 14Melody, 4-5. 15Sonnichsen, 57. 174

PAGE 181

for the last time in many times that he had surren-dered or been captured, in 1886. He, along with all of the Chiricahua and Warm Springs Apaches were transported to Florida.16 Among them was the war-rior Cochise. A direct descendent of Cochise lives on the Mescelaro reservation today, as do many de-scendants of Geronimo. Five hundred prisoners were confined at St. Augustine, Florida, among them a few Mescelaro families.17 In 1894 they were removed again, this time to Fort Sill Oklahoma. Finally, in 1911 the remainder that wished to do so, 187, were allowed to return to New Mexico, and to settle with the Mescelaro.18 This is why the Mescelaro Tribe, as it was officially organized under the IRA, in-eludes members of other tribes. The Lipans no lon-ger exist as a separate group; the few left are all elderly. 19 16Sonnichsen, 198. 17Sonnichsen, 204. 18Sonnichsen, 206. 19Conversation with Elbys Hugar, great-granddaughter of Co ise, Mescelaro, New Mexico, January 1, 1992. 175

PAGE 182

The Mescelaro avoided the negative effects of the Dawes Act, also known as the Allotment Act. This 1887 law called for reservations to be divided up into individual allotments, usually 160 acres, and distributed to tribal members. This was in contrast to traditional views on land ownership, which saw the land as belonging to all people. Allotment usually led to land passing out of the hands of the Indian owner, and out of the tribe altogether. Many reservations today suffer from what is called the checkerboard effect, with Indianowned lands interspersed with land owned by nonIndians. Perhaps the Mescelaros avoided this fate because the land is not suitable for breaking up into allotments; much of it is rugged mountain and forest country. Between 1887 and 1934, the year of the IRA, two-thirds of Indian land passed out of Indian ownership. 20 On the reservation today, the main residential center is Mescelaro. It lies on U.S. highway 70, 20Sonnichsen, 240. 176

PAGE 183

which runs between Ruidoso and Tularosa. The Tribal Council headquarters are there. Other facilities located in Mescelaro are the BIA agency headquarters, two churches, a grocery store, gas station, an elementary school, a 15-bed hospital, and a small museum. There are other small settlements at Three Rivers, Elk Springs, Carrizo, Whitetail and Mudd Canyon. The more traditional members of the Tribe live in the more isolated communities, including Mudd Canyon and Elk Springs. The reservation lies within the Sacramento mountain range. In contrast to much of southern New Mexico, the reservation is wooded, cool in the summer, well-watered, and stunningly beautiful. Sierra Blanca, the White Peak, is in the northeast corner of the reservation. This mountain at 12,000 feet is the dominating topographical feature of the region. A ski area, Ski Apache is located there. Ski Apache is owned by the Mescelaro Apache Tribe, provides significant amounts of employment for the Tribe, and is a vital element of the Ruidoso economy. Sierra 177

PAGE 184

Blanca was the center of the traditional hunting and raiding range of the Mescelaros. Besides the ski area, the Tribe has several other enterprises. The principal source of income is timber sales.21 Other Tribal enterprises include cattle grazing, the Inn of the Mountain Gods, a Tribal Lounge and a General Store. The Mescelaro Apache Tribal Council was estab-lished in 1936 under the IRA. There are eight Coun-cil members, a Vice-President and a President. All of these serve two year terms. The Tribal Council has the legal responsibility to represent the Tribe in dealings with the federal government and approve a Tribal budget, including disbursement of funds received from Tribal enterprises. The Mescelaro Apache Tribal Court has jurisdic-tion over crimes committed on the reservation. The Tribal Council President appoints the judge of this I 21It needs to be understood that this is taken uncritically fro the Tribal Council pamphlet. As I will show, questions about her or not the Tribal enterprises are profitable or not, and happens to the profits if they are, are central to criticism ::>f I Tribal Council President Wendell Chino by dissident Tribal ne. ers. 178

PAGE 185

court. The Tribe has its own police force, which is supervised by A BIA special officer. The current BIA special officer is Mark Chino, Wendell's son.22 The closest town to the reservation, and the one to which it is most closely tied economically, is Ruidoso. In 1990 Ruidoso had 4,600 permanent residents.23 Its economy depends on the ski area and tourism. Nuclear Waste Issues This section will explain the technical and political context connected with spent fuel rods generated by civilian nuclear power generating plants. An understanding of where spent fuel rods come from, what they are, and what the government and industry is proposing to do with them, is essential to understand the MRS controversy on the Mescelaro reservation. First I will explain why spent fuel rods are high-level nuclear waste, and why 22Torres. 23Ruidoso Valley Chamber of Commerce. 179

PAGE 186

storage of these wastes such a challenging problem. Then I will look at the policy-making legislation in high-level waste disposal, the Nucle-ar Waste Policy Act of 1982, and its 1987 amend-ments. Finally in this section I will focus on the activities of the Nuclear Waste Negotiator, a posi-tion created by the 1987 amendments. What Are Spent Fuel Rods? "Even if all uses of nuclear energy were to cease tomorrow, there would be no fundamental change in the radioactive waste management problem. "24 That opening sentence from a study on nuclear waste published in the late 1970s accurately states the problem that faces anyone who deals with policy issues in this field. It is as true today as it was then, with the added urgency created by the passage of time and the accumulation of more nuclear waste. Since the beginning of the nuclear age, an enormous 24David A. Deese, Nuclear Power and Radioactive Waste (Lexin gt Massachusetts: Lexington Books, 1978), 1. 180

PAGE 187

quantity of waste products associated with weapons production, research, and military and civilian power reactors, as well as various miscellaneous sources such as medical technology, has accumulated. During the early periods of nuclear development, little attention was paid to the problem of disposal of these wastes. In the late 1970s opponents of the civilian and military applications of nuclear power began to focus on it. The future of nuclear power, along with the profits and careers of the 'nuclear establishment' were at risk. 2'' It became vi tal for this establishment to 'solve' the problems of safe disposal of nuclear waste. This problem may not be solvable, at least in a manner that will enable the nuclear establishment to build new generations of generating I 25Gerald Jacob, Site Unseen: The Politics of Siteing a Nuclear Wa te Re osito (Pittsburgh: University of Pittsburgh Press, 19' 0), xii. This book is an excellent examination of the nuclear es ablishment, how it was threatened by opposition to nuclear po1 er, and the development of P.L. 97-425, the Nuclear Waste Policy Ac of 1982. 181

PAGE 188

Nuclear waste has been somewhat arbitrarily divided into low-, medium-, and high-level.26 The defining difference between these categories is the amount of what is called ionizing radiation. Ioniz-ing radiation is damaging to biological systems, including humans, and is the result of radioactive decay, the same process that produces heat in the enriched uranium fuel rods to produce electricity. Low-level wastes are contaminated with lower levels of radioactive elements that produce ionizing radia-tion, high-level wastes are contaminated with a much higher level. Medium-level wastes are somewhere in between, although what exactly constitutes the dif-ference between medium-and low-level waste is nei-ther clear nor consistent. High-level waste, be-sides producing high levels of ionizing radiation, also generates enormous amounts of heat, which fur-ther complicates disposal. Initially low-level waste, which constitutes perhaps 90 percent of the waste stream, was disposed I 26This discussion is drawn from Deese; Jacob; and Organization Ec nomic Co-Operation and Development (OECD), Geological Disposal ofl Radioactive Waste, (Paris: 19 84) 182

PAGE 189

by simply burying it or dumping into the sea.27 There has never been any question that this is inadequate for medium and high level wastes. These need to be permanently isolated from the biosphere. Proposals have centered around three main approaches: geological depositories, reprocessing, and disposal into the sun by rocket. Disposal by rocket has never seriously advanced because of the immense dangers associated with the potential failure of such a rocket during launch. It was originally thought that reprocessing of spent fuel, to recover plutonium and uranium, would reduce the volume of high level waste. This turned out not to be so; reprocessing produces more high level. waste than it eliminates. Further, in 1978 President Carter abandoned development of a breeder reactor, a type of reactor that would use as its fuel plutonium from reprocessing. Thus the rationale behind reprocessing disappeared. Geological storage has become the solution by default. It has become apparent that dumping low-level wastes at sea or by simple burial 27Deese, 8. 183

PAGE 190

is not adequate, and current policy is to treat lowlevel waste similarly to high-level waste, and to place it in geologic storage in facilities such as the Waste Isolation Pilot Plant (WIPP), in New Mexico. What is meant by geologic storage? Why is it necessary? Geologic storage is intended to isolate wastes from the biosphere, essentially forever. It is a passive storage system, one that does not require human monitoring. Two basic approaches have been discussed. The Deese study cited earlier looked at the possibility of geologic storage in the deep sea bed. More recently, in the United States attention has been focused on a land-based facility. This storage site has to be placed in formations that have been stable for perhaps 500,000 years and can be confidently be expected to remain stable for that length of time into the future. Potential geologic storage sites must isolate the waste from water and not be subject to earthquakes or volcanic activity. Present knowledge in disciplines such as geology and hydrology may not be adequate to make 184

PAGE 191

predictions to ensure that wastes will be sufficiently isolated. Our knowledge of the behavior of high-level radioactive waste is based on less than 50 years experience. Uncertainty about the reasonableness of geologic storage is one argument that could be used in favor of temporary monitored storage until we know more. There are two problems associated with highlevel nuclear wastes. The first is heat generation. After perhaps fifteen months in a nuclear reacto"r core, fuel rods become contaminated with byproducts of nuclear fission and become less efficient in producing heat. They are replaced with fresh fuel rods, and become a waste product. However, the spent fuel rods still generate an enormous amount of heat. Left to themselves, the heat generated would be sufficient to melt the fuel rods and their casings, resulting in releases of radioactive elements that would render the surroundings permanently uninhabitable. Such an event involving the number of spent fuel rods now typically stored on-site at a nuclear reactor would 'permanently interdict,' or 185

PAGE 192

render permanently inhabitable, an area of 224 square miles, or a circle with a radius of 35 rniles.28 For the first 10 or 15 years after removal from the core of the reactor, the spent fuel rod assemblies require an active cooling system. This is currently done on-site, in large pools of water that completely cover the assemblies, both to dissi-pate the heat generated and to shield the radiation. After that time, the fuel rod assemblies can proba-bly be placed within the geologic storage site. The nature of the geologic storage site must be such that it can dissipate high levels of heat that will continue to be generated for perhaps 600 years. The second problem associated with disposal of high-level waste is radioactivity. The spent fuel rods, which contained enriched'uranium when they went into the reactor core, come out contaminated with a large number of radioactive elements, which are byproducts of the fission process. They range I 28V. L. Sailor, K. R. Perkins, J. R. Weeks, and H. R. Connell, Se. ere Accidents in S ent Fuel Pools in Su ort of Generic Safet Iss e 82 (Washington D.C.: Nuclear Regulatory Commission, 1987), 74L 186

PAGE 193

from Plutonium 241, with a half-life of 13 years, to Cesium 135, with a half-life of 2,000,000 years. The half-life of a radioactive element is the time that is required for the substance to lose half of its radioactivity. In the examples above, a sample of Plutonium 241 will have undergone enough radioactive decay in 13 years to have lost half of its radioactivity. In another 13 years it will be onefourth as radioactive as it was initially, in another 13 years, or a total of 39 years it will be oneeighth as radioactive as it was originally, and so on. A rule of thumb is that radioactive substances must be isolated for 10 or 20 half-lives.29 For Plutonium 241, that means 130 to 260 years. For Cesium 135, that means 20 to 40 million years. Sixteen different radioactive elements are present 1n important amounts in spent fuel rods.30 Obviously, it is absurd to talk about isolating nuclear wastes for 20 or 40 million years. According to the dominant paradigm in nuclear waste dis-29Deese, 7. 30Deese, 4. 187

PAGE 194

posal science, we don't have to worry about wastes for that long. The dangers from high-level radioactive waste are a combination of the radioactivity of each element, the amount of each element present in the spent fuel rods, and the tendency for organisms to use the elements in biological processes. This last refers to radioactive isotopes of elements such as Iodine. Iodine is an essential element in biological processes; there will be a tendency for any iodine available in the biosphere to be incorporated into organisms. Thus the potential for damage from ionizing radiation is increased. Uranium plays no biological role; it is less likely to be retained in the body. In the current state of the science, a measure of radiotoxic potential is generated using these factors, and compared to an equivalent amount of uranium ore. Using this model, an isolation time of 10 thousand years is arrived at. In other words, it is calculated that in 10 thousand years, spent fuel rods will pose no more danger to the biosphere than did the original uranium ore that was the starting 188

PAGE 195

material for the nuclear fuel.31 This is the origin of the 10 thousand year figure that is encountered in non-technical literature about high-level waste. It should be understood that these calculations are based on a model that will take 10,000 years to test. By the late 1970s the nuclear establishment faced a crisis. High-level waste from twenty five years of research, weapons production and power generation had accumulated. Public perceptions of nuclear power had become increasingly negative and opposition to new and existing nuclear power plants threatened to terminate the entire industry. Much of that centered around the waste disposal problem. It became essential, at least for the continued viability of the nuclear power industry, that a decision be made on how to handle the waste issue, in particular that a geologic storage site be selected and developed. It was within this context 310ECD, 16. 189

PAGE 196

that Public Law 97-425, the Nuclear Waste Policy Act(NWPA) of 1982, was developed.32 Nuclear Waste Policy Legislation The NWPA was an attempt to, through federal legislation, meet the crisis in the nuclear industry and restore predictability. The most pressing need was to provide for disposal of nuclear wastes. According to Jason, the new legislation could have taken on one of two broadly defined approaches. In one approach, all of the assumptions of the nuclear establishment could have been thrown open for reconsideration. State and local governments would be invited into the decision making process; additional and independent research would be initi-ated on disposal technologies and site selection; the federal government would end its subsidization and promotion of nuclear power; public interest groups would be encouraged and funded; utilities 32A discussion of the nature of the nuclear establishment and ho the crisis of confidence in the nuclear establishment developed is found in Jacob, chapters 3 and 4. 190

PAGE 197

would be required to pay the full costs associated with nuclear power; or some combination of these efforts. Perhaps the entire question of whether the country would continue to pursue the goal of electrical generation by nuclear power would be thrown open to debate. The other approach would be to reaffirm the direction that nuclear development had taken since the 1950s. To solve the crisis, the federal government would gain the power to override local and state. objections to disposal site selection; citizen and public interest groups would be excluded from the decision making process; the process would be schedule driven and rely on existing levels of technology; the DOE would be the lead agency; and the nuclear establishment would continue to receive subsidies from the government in the form of responsibility for waste disposal. 33 The result, as embodied ln the NWPA of 1982, was the second of these approaches. The crisis in public confidence was to be met with continued gov-33Jacob, 73. 191

PAGE 198

ernment promotion of nuclear power and the selection of a permanent geologic storage site. Further, site selection would be limited to sites already under consideration. Site selection would be tied to a fairly short and rigid schedule, with final approval of the first repository site to be complete by January 1, 1989. Doubts about the adequacy of our knowledge of the geologic factors involved, both within and without the nuclear establishment, would be pushed aside. The question of whether the spent fuel rods should be considered as waste to be permanently isolated from the biosphere, or whether the uranium, plutonium and other radioactive elements they contained would one day be considered as valuable products, and therefore should be stored where they could be easily retrieved; was to be decided in favor of permanent storage. The NWPA specifically exempted the DOE from the EIS requirements of the National Environmental Protection ACT (NEPA), 1n stead requiring a less rigorous environmental assessment. The DOE was placed in charge of site 192

PAGE 199

selection, and mandated to streamline the site se-lection process. 34 The NWPA made two provisions for the eventuali-ty that the permanent repository might not be ready to accept spent fuel rods before on site storage capabilities were exhausted. The first authorized the federal government to provide for interim stor-age of up to 1,900 metric tons of spent nuclear fuel at reactor sites.3s The second provision was for the possibility of construction of a MRS site eluding a specific disclaimer that a MRS site could not act as a replacement for a permanent geologic storage site.36 Any MRS would also be exempt from EIS requirements. 37 One of the central arguments in disposal of high-level nuclear waste centers around the advis-ability of placing it in permanent geologic storage I 34Jacob, 97; Nuclear Waste Policv Act of 1982, Public Law 97-42, sees. 111(b) (1), 111(a) (1-4), 112(b) (2-3), hereafter cited as NW A. 35NWPA, sees. 131 (a) (3) and 133. 36NWPA, sec. 141 (a) (5). 37NWPA, sec. 141(c). 193

PAGE 200

now or storing it in an interim manner, where it can be retrieved easily, either for permanent disposal when our knowledge of geologic storage is more advanced, or for use as a valuable resource. Monitored storage of high-level waste, after the initial period during which the high level of heat produced by the spent fuel rods requires active cooling, had been discussed in the technical literature from the beginning of the nuclear age. The NWPA was the first time that the possibility of a mid-term, monitored storage system had been raised in nuclear policy legislation. A provision of the NWPA that would become extremely important in the MRS debate ten years later provided for the transfer of title of spent fuel rods in on-site storage at nuclear reactors from the private sector owners of the electrical generating facilities to the federal government in the person of the Secretary of Energy. The Secretary is obligated to take title when the permanent repository begins operation, and is obligated to dispose of 194

PAGE 201

spent nuclear fuel not later than January 1, 1998.38 As the schedule for construction of the geologic storage site slipped, this provision would take on enormous importance. Another aspect of both the NWPA and the amendments of 1987 is that they placed states and Indian reservations in the same category. Siteing of both the geologic repository and any MRS required consul-tation and approval of the affected local govern-ments. There were mechanisms for Congress to over-ride any objections from local governments, but under the language of the act it appears that an Indian tribe can negotiate a wastestorage site, either permanent or temporary, without the approval of the government of the state within which the reservation is located. Jacob feels that the selection criteria for the geologic storage site was slanted so as to ensure selection of Yucca Mountain in Nevada.39 The 1987 38NWPA, sec. 302 (a) (5) (A-B). 39An important aspect of nuclear waste policy as it applies to In ian nations involves Yucca Mountain directly. The Yucca Mo1 tain site, along with much of the rest of southern Nevada, is 195

PAGE 202

amendments to the NWPA did indeed designate Yucca Mountain as the selected site and removed all other candidates from consideration, in a section entitled "Redirection of the Nuclear Waste Program. "40 The amendments contained five provisions impor-tant to MRS considerations: 1. Authorization for the Energy Secretary to construct one MRS site and formation of a MRS Review Commission to make recom-mendations to Congress whether "such a facility should be included in the national nuclear waste management system ... "; 41 2. A schedule of benefits for a state or Indian tribe willing to accept a MRS site;42 3. Creation of the office of the Nuclear Waste Negotiator;43 4. Requirements that spent fuel rods be transported in containers approved by the cl imed under treaty agreements by the Western Shoshone. 40Nuclear Waste Policy Amendments of 1987, sec 5011. Referred he eafter as NWPA amendments. 41NWPA Amendments, sec. 143 (a) ( 1) (C) ( i v) 42NWPA amendments, sec.5031. 43NWPA amendments, sec. 5041. 196

PAGE 203

Nuclear Regulatory Commission;44 and 5. Nullifica-tion of a proposal to site a MRS at Oak Ridge Ten-nessee.45 I will discuss each of these provisions. The MRS Review Commission issued its final report to Congress on November 1, 1989.46 At that time about 20,000 metric tons of spent fuel rods had accumulated. This figure is expected to rise to about 87,000 metric tons by the end of the lifetimes of all existing and licensed nuclear power planbs, around 2013.47 Most of this waste is currently stored on-site in water-filled pools, but this stor-age will be inadequate for the spent fuel rods that will accumulate over the lifetimes of the reactors. The NWPA amendments linked construction of a MRS site to licensing of the permanent repository.48 44NWPA amendments, sec. 5061. 45NWPA amendments, sec. 5021. 46Monitored Retrievable Storage Review Commission, Nuclear Wa te: Is There a Need For Federal Interim Stora e? (Washington, : Government Printing Office, 1989). 47MRS Review Commission, xv. 48NWPA amendments, sec. 5021. 197

PAGE 204

This decision was politically-based, not technically-based, to prevent a MRS from becoming a de facto long-term storage site. Congress intended for the permanent repository at Yucca Mountain to be ready to accept spent fuel by 1998, but the DOE has already pushed that back to 2010, and it is unlikely that this deadline can be met. The issue of linkages between construction of a MRS site and the geological repository site at Yucca Mountain is central in the MRS policy debate. The NWPA amendments specify that: 1. Construction of a MRS facility cannot begin until the Nuclear Regulatory Commission has approved a license for the construction of a permanent geological repository. This means that a MRS site potentially could go through the entire approval process that I will explain below, but construction cannot begin until all of the technical, environmental and political hurdles that lie between where the process is now and final licensing of Yucca Mountain are successfully jumped. Yucca Mountain may never be built; this linkage would prevent construction from ever 198

PAGE 205

starting on a MRS facility; 2. Construction of a MRS facility must halt if, for any reason, the license for the geologic storage site, Yucca Mountain, is revoked. This means that even once construction on a MRS facility begins, there is still the possibility that the process can be halted before the facility is ready to accept shipments of spent fuel; 3. The amount of spent fuel that a MRS facility can accept cannot exceed 10,000 metric tons before the permanent geologic repository actually accepts its first shipment of spent fuel. This means that at present levels of spent fuel inventories, a MRS site, if it existed today, could store one half of the present inventory of spent fuel rods. In 2013 a MRS facility could accept a little more than one ninth of the inventory of spent fuel rods; and 4. The maximum amount of spent fuel rods that a MRS facility can accept is 15,000 metric tons. The implications are obvious from the above discussion. 49 49MRS Review Commission, 5. 199

PAGE 206

The MRS Review Commission recommended that it would make no sense to build a MRS facility if linkages between the MRS and Yucca Mountain remain in place. This would be particularly true if completion of the permanent repository is delayed beyond 2013, when many currently operating reactors are scheduled to be decommissioned. If these linkages remain, the Commission recommended construction of an emergency storage site capable of handling 2,000 metric tons and an interim storage site with a capacity of 5,000 metric tons. Congress should reconsider by 2000 whether it makes sense for the linkages to remain in place. The amendments to the NWPA set up a schedule for payments to a state or Indian tribe which accepts a MRS site. After an agreement has been reached between the Secretary of Energy and a state or tribe, and before the first shipment of spent fuel reaches the MRS, the federal government will pay $5 million annually. After the MRS site is functioning and spent fuel is being stored there, an annual payment of $10 million will go to the state 200

PAGE 207

or tribe. The benefits agreement is not subject to judicial review, can be amended only by mutual consent of both parties, and can not be terminated by the state or tribe. The state or Indian tribe waives its right to disapprove a site recommendation once a benefits agreement has been signed with the DOE. The amendments to the NWPA also established an office within the executive branch called the Nuclear Waste Negotiator. I will discuss this office fully below. A fourth provision of the NWPA amendments dealt with transportation of spent fuel rods. As with the rest of the nuclear industry, standards for transportation casks were developed in a piecemeal manner. Indeed one of the major criticisms of all aspects of federal nuclear energy policy lS that it has never been considered from a total systems approach. The NWPA amendments require that spent fuel rods shipped to geologic storage or to a MRS site be shipped in containers certified by the Nuclear Regulatory Commission. Transportation risk forms a 201

PAGE 208

central component in the discussion of whether a MRS site is necessary or desirable. It will be useful to examine the issues involved. Until now, very little spent fuel has been transported away from reactor sites. Before 1970 disposal and transportation were not important is-sues, as the number of reactors was small and it was assumed that spent fuel would be reprocessed to recover uranium and plutonium. Even as late as 1981 only 96 shipments of spent fuel took place annually. This is expected to rise to perhaps 13,000 shipments every year when the geologic storage site opens.50 The extremely high level of radioactivity of the spent fuel rods, combined with the long half-lives of some of the radioactive elements, makes a potential spill extremely serious. Anyone in the close vicinity would die immediately, people further away would die later, a certain amount of land would be permanently uninhabitable. How many people would l 50Marvin Resnikoff, The Next Nuclear Gamble: Transportation and St a e of Nuclear Waste (New York: Council on Economic Priorities, 198 ) 1 14 7 202

PAGE 209

die and the extent of the contamination would depend on factors such as wind, weather and population density. A major spill has never occurred; all of the assumptions in the literature are based on computer models. With a level of perhaps 13,000 shipments annually, it is inevitable that eventually a truck carrying spent fuel will be involved in a serious accident. Prevention of a spill with catastrophic results depends on the design of the casks approved by the Nuclear Regulatory Commission for transportation. They must be able to withstand the conditions of any reasonably conceivable accident without release of their contents. Present cask standards derive from data collected in the 1950s and 1960s by Oak Ridge National Laboratories.51 Under present standards casks must meet four tests; impact test, a 30 foot drop onto a flat, unyielding surface; puncture test, a drop of 40 inches onto a six inch diameter vertical steel bar; fire test, a 30 minute fire at 1,475 F; and an 51This discussion is taken from Resnikoff, chapter 5. 203

PAGE 210

immersion test, in three feet of water for eight hours. All of these standards can be criticized as being inadequate. For instance, impact at well over 30 miles per hour would be predicted at average highway speeds, perhaps as much as 120 miles per hour if the impact resulted from a head-on collision. The fire standard of 1,475 F is much too low. Many substances commonly shipped on highways burn at temperatures of up to 4,000 degrees, and fires of longer than 30 minutes duration due to highway accidents have been well documented. The puncture tests are designed for cool materials, while casks heated by fire may puncture much more readily. The immersion test standard of 3 feet is a completely unrealistic simulation of a cask falling into a deep river or the ocean. Finally, the most serious weakness of these test standards is that cask designs are not even required to actually undergo them. All testing is done by computer model simulation. Not one cask currently in use or proposed for use has actually 204

PAGE 211

been subjected to even these inadequate test requirements. Further criticisms of the cask certification procedures focus on the need for and current lack of tests designed to simulate torch fires, crushing or missile impact. Further, design standards for valves and seals are insufficient and weld quality control is lacking. The safety of transportation depends on confidence that transportation casks for spent fuel can survive any conceivable truck or rail accident without release of radioactivity. The current generation of cask designs does not give that confidence. A MRS facility would require that spent fuel be transported twice, once from the reactor site to the MRS site and then to the geologic storage site. A waste disposal system without a MRS site would cut out this extra trip for each shipment. Opponents of MRS argue that the risk of an accident may be small, but the consequences are so devastating that any unnecessary transportation must be avoided. 205

PAGE 212

The finally important provision of the NWPA amendments was a rejection of Oak Ridge, Tennessee, as a MRS site. Under the NWPA the DOE and the Sec retary of Energy had developed a proposal to place a MRS facility at Oak Ridge. Rejection of the Oak Ridge MRS proposal was the culmination of a political battle between the DOE and the local and state governments involved. Under the provisions of NWPA, the DOE in 1985 informed the state of Tennessee of its plans to site a MRS in that state. The state conducted public meetings and studies on the MRS proposal. Tennessee sued DOE to prevent submission of a MRS proposal to Congress. Tennessee lost this court case on appeal to the Supreme Court, and the governor issued a notice of disapproval to Congress, under the provisions of NWPA. The 1987 amendments to NWPA specifically annulled the DOE's selection of Tennessee for a MRS site. As many of the same issues are being raised in connection with the Mescelaro Apache MRS proposal, it will be useful to exam the Oak Ridge MRS. 206

PAGE 213

Opposition to the MRS by the state of Tennessee is perhaps surprising and potentially very signifi-cant from a technical standpoint. Oak Ridge is the site of one of the earliest and most important of the federal nuclear research laboratories. The state of Tennessee has a long history of experience with nuclear power and nuclear issues. In a 1991 document submitted to the DOE, Ray-mond Hoskins, a researcher on contract to the state of Tennessee outlined the basis for opposition a MRS site.52 The need for a MRS site within the con-text of an waste disposal system is questioned. DOE plans still call for geologic storage, although not until 2010. The Department still in-tends to take title to spent fuel rods in 1998, necessitating construction of a MRS facility. This will require removal of the linkages between the geologic storage site and any MRS, provisions 1n-eluded in the 1987 NWPA amendments to prevent a MRS I 52Rayrnond E. Hoskins, Comments on DOE's September 1991 Draft Mission Plan Amendment Pertainin to Monitored Retrievable Stora e, Uni ersity of Tennessee, Waste Management, Research, and Education 1991. 207

PAGE 214

from becoming a de facto long-term storage site. But it is unnecessary for the DOE to take title to the spent fuel rods in 1998. There is sufficient on-site storage at the reactor sites in storage pools, and the DOE is in the process of approving on-site dry storage casks. Further, the DOE is unrealistic about the prospects of siteing an MRS. In general, the DOE has consistently failed to take a systems approach to the problems of waste dispos-al. One of the arguments used against a MRS in Tennessee was a study that indicated that a MRS could be damaging to tourism. 53 This study indicat-ed that one half of the people surveyed would alter their travel plans if they later discovered that their vacation destination was near a MRS site. A further objection by Tennessee had to do with rod consolidation. A MRS site, as envisioned in various proposals over the past 20 years, and in DOE and industry documents as recently as 1991, would I 53ci ted by Gayle Hudgens, "Hot Rods and Megabucks : the MRS Ruidoso News ,November 28, 1991, 1. 208

PAGE 215

include facilities for repackaging and consolidation of the fuel This would have the advantages of being able to examine the spent fuel rods for damage to the metal cladding and decreasing the storage space needed for the eventual geologic re-pository. It would have the disadvantages of ensur-ing that there would be some long-term high-level contamination of the MRS site and of increasing the chances of a catastrophic radioactivity release. Finally, the state of Tennessee argued that including a MRS in the waste management scheme would be more expensive than on site storage. The DOE's own figures calculated that a MRS option would in-crease waste management costs between one and two billion dollars. DOE figures are probably low by at 54Department of Energy, "Spent Fuel Storage at the Monitored ievable Storage Facility," DOE/rw-0324P (Washington, D.C.: DOE, ); U.S. Council for Energy Awareness, "Monitored Retrievable age of Used Nuclear Power Plant Fuel" ( Washington, D.C. : A, 1991) .; and Department of Energy, "A Monitored Retrievable age Facility: Technical Background Information," DOE/rw-0311P hington, D.C.: DOE, 1991). 209

PAGE 216

least a billion dollars, as they do not include impact assistance to the affected communities.55 By 1987 almost all of the components of present federal policy on nuclear power and the most criti-cal aspect of that policy, management of high-level nuclear wastes in the form of spent fuel rods from civilian reactors, was in place. The first component was selection of a, geologic, storage repository, at Yucca Moun-tain. This is important for three reasons. First, by showing that the problem of nuclear waste is solvable, uncertainty can be removed and opposition to a new generation of nuclear power plants can perhaps be defused. Presently, much of the politi-cal opposition to nuclear power focuses on the prob-lem of disposing of radioactive waste. Second, the technical debate over whether spent fuel rods are waste or valuable resource is decided. Some techni-cal experts feel that the radioactive isotopes in spent fuel rods may at some time in the future be I 55Tennessee Planning Office, "MRS: A Temporary Solution for Nu lear Waste Disposal Is Not Needed in Anybody' s Backyard," pa1 hlet issued by Tennessee Planning Office, 1987. 210

PAGE 217

valuable materials. NWPA represents a resolution of that argument on political rather than technical grounds. Third, selection of Yucca Mountain puts the geologic repository in a politically weak state. The second component involves linkages between licensing of Yucca Mountain and construction of a MRS. This would prevent a MRS from becoming a de facto long-term storage site. It also lessens the value of constructing a MRS. The third component concerned title to spent fuel rods. The 1982 NWPA appears to commit the DOE to take title to fuel rods in 1998. Yucca Mountain cannot be licensed until 2010, and there are very real questions if it will be licensed then. If DOE intends to take title to the spent fuel rods 1998 and store them in a MRS until Yucca Mountain is ready, it must have the linkage between the MRS and Yucca Mountain removed. The fourth component had to do with the revival of Indian sovereignty. My interpretation of the NWPA, the 1987 amendments, and federal government policy, particularly the actions of the Nuclear 211

PAGE 218

Waste Negotiator discussed below, is that the nucle-ar establishment sees Indian sovereignty as a vehi-cle to avoid state government veto of MRS siteing, thus avoiding the type of protracted political bat-tle associated with Tennessee's successful fight to avoid MRS siteing in that state, New Mexico's objec-tions to WIPP, and Nevada's objections to Yucca Mountain. A serious technical question left unre-solved was and is safety of transportation and cask The Nuclear Waste Negotiator According to the NWPA amendments, the Nuclear Waste Negotiator ... shall attempt to find a State or Indian tribe willing to host a repository or monitored retrievable storage facility at a technically qualified site on reasonable terms and shall negotiate with any State or Indian tribe which expresses an interest in hosting a repository or monitored retrievable storage facility.56 This office remained unfilled until August of 1990, when David Leroy was confirmed by the Senate 56NWPA amendments, sec. 5041. 212

PAGE 219

as the United State$ Nuclear Waste Negotiator.57 In 1991 the Negotiator invited states and Indian gov-ernments to apply for feasibility assessment grants to study hosting a MRS facility. These grants are divided into different phases. Phase I grants are awarded ... to assist prospective hosts in determin-ing whether initial interest exists," and are worth $100,000.58 The Negotiator's report to Congress stresses the process is completely voluntary on the part of state or tribal governments, Preliminary discussion will not be viewed as a commitment to proceed further, and ... [a] prospective host is entitled to achieve an equity for helping to solve a national problem, and the nature and the means of achieving that equity should represent the concerns, needs and desires of the host."59 In October of 1991 the Negotiator issued a formal invitation for interested governmental units to apply for the Phase I feasibility grants. The I 57David H. Leroy, 1991 Annual Report to Congress (Boise, Idaho: Office of the United States Nuclear Waste Negotiator, 1992). 58Leroy, 1991 Annual Report, 1. 59Leroy, 1991 Annual Report, 4. 213

PAGE 220

Mescelaro Apache Tribe was the first to apply on October 10, 1991. By January 1992 two county gov-ernrnents and four Indian nations had applied. Why the Negotiator accepted applications from county governments when the enabling legislation specified states and Indian tribes is not clear to me. As far as I know this question has not been raised. In July of 1992, the total list of applicants included 20 different governmental entities, 4 coun-ties and 16 tribes. No states have applied. One county and two Indian nations changed their minds and either declined an award or withdrew their ap-plication. 60 60Mescelaro Apache Tribe, "MRS Study Applicants," MRS Newslette June 1992, 2; Mescelaro Apache Tribe, New Mexico, applied Ocfober 11, 1991, awarded Phase I October 18, 1991; Grant County, No th Dakota, applied November 18, 1991, awarded November 25, 1991, te1 inated project March 1992; Chikisaw Indian Nation, Oklahoma, ap1lied December 31, 1991, awarded February 14, 1992, declined aw'rd; Fremont County, Wyoming, applied January 1, 1002, awarder Ja1 ary 23, 1992; Prairie Island Indian Community, Minnesota, ap lied January 1, 1992, awarded March 17, 1992; Sac and Fox Nation, applied January 1, 1992, declined award; Yakima Indian Nation, Washington, applied January 1, 1992, awarded January 23, 199 ; Apache County, Arizona, applied March 18, 1992; Skull Valley of Goshute Tribe, Utah, applied March 19, 1992, awarded April 17 1992; Alabama-Quassarte Tribe, Oklahoma, applied March 26, 199 ; Eastern Shawnee Tribe, Oklahoma, applied March 26, 1992; Tet in Village Council, Alaska, applied March 30, 1992; Lower Brule sib X of North Dakota, applied March 30 I 199.2; Akhiok-Kaguyak, 214

PAGE 221

The Negotiator's 1991 Report to Congress out-lines the process that an interested applicant will go through. The Phase I grant money of $100,000 is to be used to enable the applicant to gain an under-standing of the nuclear waste management system and to determine whether the applicant has a real inter-est in pursuing the process any further. Phase II is divided into two parts. Phase II-A funding is worth $200,000. The interested state or Indian tribe is required to produce a preliminary proposal that includes information about coordination with other affected units of government. The funding for Phase II-A is to finance information activities, including public MRS meetings; a letter from the state or Indian government that they intend to enter into discussions with the Negotiator that may lead to an agreement with Congress; and some potential sites for the MRS. Phase II-B funding is for up to Inb./Akhiok Traditional Council, Alaska, applied March 30, 1992; he Development Authority, Oklahoma, applied March 31, 1992; Abs ntee Shawnee Tribe, Oklahoma, applied March 31, 1992; San Juan ty, Utah, applied April 3, 1992; Ponca Tribe, Oklahoma, applied Apr'l 6, 1992; Caddo Tribe of Oklahoma, applied April 6; 1992; Fort MciD rrnitt Paiute Shoshone, Nevada, applied May 30, 1992. 215

PAGE 222

$3,000,000, and is to be used for site selection and environmental assessment studies. After this phase a negotiated agreement can be submitted to Congress for enactment into law. 61 Phase II-B, worth up to $3 million 1n funding, is the stage in the negotiating process in which an agreement between the state or Indian tribe and the Negotiator is made, to be submitted to Congress for approval. The Negotiator's Report stresses that the state or Indian tribe can opt out of the process any time during Phase II. 62 All of the literature produced by the Negot-iator's office stresses that his position is corn-pletely independent of the DOE.63 Further, he ern-phasizes the benefits beyond the cash payments pro-vided for in the NWPA arnendrnents that a recipient of 61Leroy, 1991 Annual Report, 17. 62Leroy, 1991 Annual Report, 18. 63David H. Leroy, Moving Beyond the Headlines: Negotiated Nua ear Facilit Sitin in the 1990s, speech at High Level Rad oacti ve Waste Management Conference Exposition, Las Vegas, da, April 30, 1991. Available from the office of the United Sta es Nuclear Waste Negotiator, Boise, Idaho. Referred hereafter to s speech, 1991. 216

PAGE 223

a MRS can reasonably expect to negotiate with the Negotiator. What form can that compensation take? Any form that capably addresses the mutual benefit of the jurisdiction and the nation. It's negotiable. Where co-location of more desirable federal facilities would assist job creation, let's talk about it. If improved transportation corridors can enhance safety and also benefit state and interstate commerce, let's talk. If enhanced educational opportunities and research facilities are needed and wanted, let's talk .... The federal government is willing to 'pay' exactly that much by negotiating a reasonable agreement. 64 Much of the work of the Negotiator is of a public relations nature, to try to convince a state or tribe to accept a MRS. As part of that PR effort the Office has produced a publication entitled In-formation Sourcebook on the Management of Spent Fuel and High-Level Nuclear Waste.65 This lists inforrna-tion on 23 organizations that were asked to submit lists of educational materials on nuclear waste. The booklet is heavily slanted towards government and industry sources. The environmental organiza-64Leroy, speech, 1991, 11. 65David H. Leroy, Office of the Nuclear Waste Negotiator (B0'se, Idaho: 1991). 217

PAGE 224

tions .that are included tend to be mainstream ones, such as Environmental Defense Fund and the League of Women Voters Educational Fund. The Office also produced a videotape that is being shown at a MRS information office on the Mescelaro reservation.and to citizen's groups in the area. This videotape summarizes the operations of a MRS, emphasizing financial benefits and safety. It also shows footage from transportation cask studies done by Sandia laboratory. These images are vivid and convincing. They are also seriously flawed. In 1977 and 1978 Sandia National Laboratories in Albuquerque tested the effects of crash impacts and fire on three used fuel casks.66 The films were intended to assess how well computer simulation tests corresponded to the physical world. Since then the films have been put to another use; to convince the public that transport casks are indeed 'virtually indestructible.' Unfortunately for truth, the version that the public sees has been shortened from 14 to 4 minutes, omits many important 66Resnikoff, 211. 218

PAGE 225

qualifying statements, and does not show tests where the casks failed. Other serious methodological problems with the tests, as well as distortions introduced in the editing process, tend to invalidate the message of the film.67 I saw this video in Mescelaro, with two local politicians, and we were all impressed. Unfortunately it appears that we were all misled. Cask design is an important part of the picture for at least two reasons. First, a release of radioactive material in a shipping accident has the potential to kill many people and permanently contaminate large areas of land. Much of the local opposition to the Mescelaro proposal centers around this danger. oped stage. Second, cask design is at an undevelThe ideal situation would see the mini-mum number of times that spent fuel rods need to be repackaged. Under current technology, conceivably the rods are repackaged four times; from the reactor to on-site wet storage, from wet storage to on-site dry storage, from on-site dry storage to a transpor-67Resnikoff, 211. 219

PAGE 226

tation cask, and finally a final repository cask. The GAO has been critical of cask develop-ment. 68 This is not the only criticism of the activi-ties of the Negotiator. Some observers feel that the DOE, the private-sector nuclear industry, and the Negotiator have deliberately fashioned the MRS initiative to appeal specifically to Indian tribes.69 These writers feel that the MRS proposal is designed to take advantage of the endemic unem-ployment and poverty of Indian nations, and at the same time to use the concept of Indian sovereignty to drive a wedge between the reservation governments and those of the states within which they are locat-ed. The concept of sovereignty of Indian nations I 68General Accounting Office, Development of Casks for Trans POii ino Soent Fuel Needs Modification (Washington, D.C.: GAO, '); General Accounting Office, Weak DOE Contract Management Inv ted TRUPACT-II Setbacks (Washington, D.C.: GAO, 1992); and Geri Accounting Office, Operation of Monitored Retrievable Std a_ge Facility Is Unlikelv bv 1998 (Washington, D.C.: GAO, 1991). I 69Hughes; Valerie Taliman, "The Toxic Waste of Indian Lives," Action, Number 40, Spring 1992, 16; Ana Radelat, "Trading Awa lr Their Future: Will the Mescelaro Apaches Share Their Land with Rad oactive Waste?", Public Citizen, January/February, 1992, 16.; Elmar M. Savilla, "White Trash: The Poisoning of Indian unpublished manuscript. 220

PAGE 227

and how it has been applied has an extensive literature. It is sufficient to note that Indian sovereignty is valuable to the federal government when it suits its purposes, and dismissed when it does not. The United States government and the BIA constantly cut back on educational, health and development funding for Indian tribes, but the Negotiator is in a position to offer money for 'health care, education, railroads, highways, waterways, airports, public schools, recreation facilities, and environmental and economic development programs. "70 Even the Phase I funding of $100,000 is not an insignificant motivation for an Indian nation or county government to apply to study a MRS. The Negotiator's efforts are not occurring ln a vacuum, but appear to be well coordinated with other groups. A request to the Negotiator's Office for information on the MRS proposal brings, in addition to the publications from that office, eight pamphlets published by uscEA, the U.S. Council for Energy Awareness. USCEA is the public relations branch of the nuclear energy 70Tal iman, 21 221

PAGE 228

I I 6-8 d I industry. Their information packet includes two pamphlets on MRS, emphasizing safety and reliability of nuclear power. The Negotiator also is coordinating efforts with the Council of Energy Resource Tribes (CERT) CERT and the Mescelaro Apache Tribe sponsored a conference on April 6-8 in Colorado Springs.71 The agenda of this conference and its participants de-serves an extended discussion. Three representatives from the Mescelaro Apache Tribal Council attended; Tribal Council President Wendell Chino, Tribal Secretary Fred Peso, and Silas Cochise, who heads the MRS information center on the reservation. Twelve other Indians attended, mostly executive officers of other that have applied for Phase I grants. The federal government was represented by three different offices. The Office of the Nuclear Waste Negotiator was represented by its Director, David Leroy; its General Counsel, 71Council of Energy Resource Tribes and the Mescelaro Apache e, "Dialogue on Tribal Perceptions of the Ethical and Moral s of Nuclear Energy and Radioactive Waste Development", April 1992, unpublished agenda. Referred to hereafter as CERT ogue. 222

PAGE 229

Robert Mussler; and its Chief of Staff, Charles Lempesis. The Department of Energy sent four peo-ple, and the BIA two. Five people from four differ-ent organizations represented the private sector branch of the nuclear establishment, including TRW-Inc., Pacific Nuclear, Edison Electric and USCEA. The list of attenders was rounded out by two repre-sentatives from the National Conference of State Legislatures and three academics, including a pro-fessor of religion from Duke. Attendance was by invitation only, and at least one Indian environmen-tal activist was denied admittance.72 The agenda, as the title of the conference indicates, centered around discussions of the ethics and morality of nuclear power and radioactive waste. The purpose of the dialogue was ... to explore the Indian and American traditional, cultural, reli-gious, ethical and moral underpinnings of nuclear I 72Avis Little Eagle, "Tribes Meet to Discuss Role of Nuclear Was e, Lakota Times, April 18, 1992, 1. 223

PAGE 230

energy and radioactive waste management and dispos-al .... 73 The introduction to the agenda mentions that (at that time) five Indian tribes and two county governments had applied for Phase I study grants, and expressed surprise that negative public reaction had forced one of the Indian applicants and one of the county applicants to withdraw. The Negotiator's invitation contemplated a purely voluntary, non-coercive, non-binding, and rational examination of the scientific, technical, economic, social, health and safety, and environmental issues relative to the MRS. The tribal decision to apply for the grants was based in large part on the non-binding nature of the invitation. The attitude for some was 'Why not learn about high-level radioactive waste management and get paid to do it? Obvi ously, on one could possibly object to a study of these issues.' Neither the counties nor the tribes expected, and were therefore unprepared for, the immediate, and often vituperative response their grant applications engendered.74 This expression of surprise can only be regard-ed as disingenuous. The Tribes that were represent-ed at the meeting had plenty of negative experience with the nuclear development program of the United 73CERT dialogue, 2. 74CERT dialogue, 1. 224

PAGE 231

States. The agenda introduction itself lists Indian nations who had already been involved in or had been harmed by U.S. nuclear policy, including the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation, and their efforts to prevent shipment of nuclear waste from Fort St. Vrain reactor in Colorado across their lands; the Yakima Indian Nation, the Confederated Tribes of the Umatilla Indian Reservation and the Nez Perce Tribe, which are all affected by the Hanford Reactor site in Washington state, one of the most polluted sites in the country; the Laguna Pueblo in New Mexico, who have been devastated by the after effects of large-scale uranium mining on their reservation; the Navajo Nation, many of whose members died from lung cancer caused by mining uranium for the United States' weapons program; and the Hualapai, who are fighting, along with the Havasupai, proposed uranium mines on the Grand Canyon's south rim. How should I analyze this conference? If I am to understand its significance, I need to focus on who answered the Nuclear Waste Negotiator's invi-225

PAGE 232

tation to apply for Phase I funding. Out of 19 applicants, only two were not Indian tribes. Per haps the creation of the Negotiator's Office was not aimed at circumventing local opposition with the tool of Indian sovereignty, but that is the effect. Siteing of a MRS outside of a reservation would require approval of the governor of the state. State governors are responsive to political pressure, pressure that would certainly be brought to bear by local groups. Tribal Chairmen are less subject to political pressure from members of their tribes. As I will show in the next section, there is ample evidence that Chairman Chino is totally unresponsive to political pressure within the Mescelaro Apache Tribe. Indian sovereignty means little when it is applied to issues like water rights and religious freedom; apparently the federal government holds it sacrosanct when it applies to a MRS application. The CERT-and Mescelaro-sponsored conference attempted to build a moral and ethical framework within which decisions on nuclear waste management 226

PAGE 233

decisions could be made. Within the context of indigenous religious beliefs, this approach seems strange and inherently contradictory. Further, the presence of Indian leaders other than Chino, Peso and Cochise seems to be window dressing. The Mescelaro Apaches were the first Tribe to apply for Phase I funding. That funding was granted in less than a week, a suspiciously short time for a federal agency to process an application. The inference is that the application was expected and pre-approved. The Nuclear Waste Negotiator only needs one tribe to accept a MRS. The presence of representatives from USCEA, the nuclear power lobbying group, and other industry representatives, including Pacific Nuclear, is also significant. As explained earlier, the civilian nuclear energy establishment must find a solution to waste disposal. If they do not, a new generation of nuclear reactors will probably not be built. The result would be loss of jobs, loss of profit opportunities, perhaps loss of invested capital. On the government side, the absence of a solution would .227

PAGE 234

mean loss of much of the reason for the existence of DOE. The schedule for Yucca Mountain keeps getting pushed back. There is a possibility that it may never be built. The industry and the federal agencies involved in regulating the industry need a contingency plan. A MRS site will give them at least 40 years of breathing room, perhaps more. Pacific Nuclear is one of the leading manufacturers of transport casks. It stands to make large profits if a MRS is built, supplying casks that would not otherwise be needed if on-site storage is used. The sponsorship of the conference by CERT can be interpreted within the same context. CERT was initially founded with the help of the Department of the Interior. Definitive studies of the role of CERT within the political economy of development of mineral resources on Indian reservations are lacking at this time. It is, however, not unreasonable to use as a working hypothesis that the role of CERT is to rationalize the development process of these resources. One of the resources of Indian reserva-228

PAGE 235

tions that is becoming increasingly attractive is the ability to accept waste, nuclear or otherwise. This conference must be seen within a context of rationalizing a decision that is probably not in the interests of the Mescelaro Apache, and legiti a process that is inherently illegitimate. In the next section I will focus on the Mescelaro Apache Tribe, its applications for Phase I and Phase II funding, and the political relationships between the Tribal government, Tribal members, local communities, and the state. 229

PAGE 236

Monitored Retrievable Storage and the Mescelaro Apache Tribe As mentioned above, the Waste Negotia-tor sent out formal invitations to the governors of all states and territories of the United States as well as Indian tribal leaders, asking them to ex-press interest in opening discussions that might lead to a MRS siting.75 Four days later, on October 11, Wendell Chino, Tribal Chairman of the Mescelaro Apache Tribe in south-central New Mexico, in a let-ter to Leroy, applied for funding for Phase I.76 Chino had already hired consultants from the private sector nuclear industry, Pacific Nuclear and Science Applications International. This was not a spur of the moment or last min-ute application. The Negotiator's staff had briefed 75Leroy, 1991 Annual Report, 2. 76Wendell Chino, letter to David H. Leroy, October 11, 1991. Ob ined by the author in an information packet prepared by Miller Hu on, consultant to the Mescelaro Apache Tribe. At the Mescelaro MRS information center, Mescelaro, New Mexico, June, 1992. 230

PAGE 237

the Mescelaro Tribal Council on the MRS project and possible benefits, in a presentation at Inn of the Mountain Gods, in August of 1991.77 The Negotiator was ready to respond quickly to the Mescelaro Apache Tribal Council The Phase I study grant was approved by the DOE on October 18, 1992, seven days after the application.78 The response of the surrounding communities and the state of New Mexico was almost immediate and universally negative. The town of Ruidoso lies adjacent to the Mesce-laro reservation, to the north. It is a tourist town, largely dependent on Ski Apache, a ski area owned by the Mescelaro Tribe, for revenue in the winter, and in the summer, visitors from Texas and other parts of New Mexico, who come to enjoy the beautiful Sacramento mountain range, as well as a world famous horse racing track, Ruidoso Downs. Ruidoso also benefits from its close proximity to Inn of the Mountain Gods, a Tribally-owned and oper77MRS Newsletter, 2. 78Frankie Jarrell, 11 Feds Approve $100, 000 N-Waste Study Grant, 11 oso News, October 24, 1992, 1. 231

PAGE 238

ated resort, that is on reservation land just outside of town. Opposition in Ruidoso centers around fears that a nuclear waste dump will destroy tourism and cause a catastrophic drop in property values. Some local opposition is environmental in nature. Opposition on the state level seems to be centered around a perception that New Mexico is already bearing a vastly disproportionate share of the nuclear burden. The first atomic explosion took place at. White Sands, a few miles south of the reservation. Albuquerque is horne to Sandia National Laboratories, where much nuclear research is done. Los Alamos, the nuclear laboratory and industrial establishment where the original nuclear research was done, is still a military reserve a fewrniles north and west of Santa Fe. Finally, the state of New Mexico has been fighting WIPP, the low-level nuclear waste site near Carlsbad 1n the southeastern corner of the state for years. It is much harder to speak knowledgeably and confidently about opposition within the Mescelaro 232

PAGE 239

Tribe. It certainly exists, along with dissatisfaction with Chino. Opponents within the Tribe claim that they are the target of retribution, including violence, from Chino for opposing him in this and other issues. In this section I will trace the evolution of the controversy from October of 1991 up through June of 1992. I will examine the nature and sources of opposition to the MRS proposal within the local communities that border on the reservation, mostly in Ruidoso. I will look at the opposition to the proposal at the state level, and will have some comments about the relationship between the Chino administration and the state of New Mexico. I will present what information I have been able to gather on opposition within the Tribe, but I must caution that it is in many respects anecdotal and fragmentary. Ruidoso and Other Communities Near the Reservation 233

PAGE 240

I Ful Ove 1. Chino announced his application for Phase I funding on Friday, October 11, 1991, in a copyright-ed story in the Albuquerque Journal.79 Reaction on the local, state and regional level followed irnmedi-ately. The Ruidoso News carried an article the following Monday. Governor King of New Mexico called a news conference on the same Friday to an-nounce adamant opposition to the proposal.80 TheEl Paso Times interviewed Chino and carried a long story about the MRS. The day after the first article carne out in the Ruidoso News, representatives of the Mescelaro Tribe met with the Lincoln County Commissioners.81 Lin-coln County borders the reservation on the north, and includes Ruidoso. The Mescelaro representatives included Tribal Council Secretary Fred Peso, and two consultants from the private sector nuclear indus-79Wendell Chino, "Mescelaro Apache Tribe Applies for Study ing," Albuquerque Journal, October 11, 1991. 8Frankie Jarrell, "Mescelaro President Makes Plans for a Study High-Level N-Waste Storage," Ruidoso News, October 14, 1991, 81Dianne Stallings, "Commissioners Hear Plans for N-Waste Sto age Feasibility Study," Ruidoso News, October 17, 1991, 1. 234

PAGE 241

try, Miller Hudson of Pacific Nuclear Systems, and Jim Tollison from Science Applications International Corporation. The discussion at this meeting covered most of the important points in the MRS context, including the role of the Negotiator, the fact that the Mescelaros were the first to apply for study funding, promises from the Negotiator and the DOE that the facility was temporary until Yucca Mountain could open, the argument for consolidation as opposed to on-site storage, Indian sovereignty as it relates to safety issues and the ease of negotiating an agreement, potential economic benefits for both the Tribe and surrounding communities, and the possibility of serious harm to the existing economic mainstay, tourism. Three of the consultants' remarks are particularly interesting. First, Tollison mentioned that he had been working for the Tribe for more than a year, but he did not say on what. Second, Tollison claimed that the MRS does not represent new science. This is a questionable claim, as anyone who has even 235

PAGE 242

as much background as this paper has provided can realize. MRS facilities have never been built, transportation casks have not been approved for transportation, the overall question of the advis-ability of attempting geologic storage at this time is an open question, in science circles if not at the policy level. Finally, Miller Hudson stated that a MRS site would be subject to requirements for a full EIS under the National Environmental Policy Act.. This is completely untrue. The relevant leg-islation in nuclear waste Policy, NWPA and its 1987 amendments, specifically exempts MRS siting from the EIS process. Chino made a similar appearance before the Ruidoso Village Council on October 17, 1991, six days after the initial announcement.82 Chino stated that he had the full support of the Tribe, as ex-pressed through the Tribal Council. I 82Charles Stallings, "Chino Defends Study," Ruidoso News, Oct ber 21, 1991, 1. 236

PAGE 243

Approval of the $100,000 Phase I study grant was announced by the DOE on October 22, 1991.83 Opposition to the proposal developed quickly. One of the catalysts of opposition, on both a local and regional level, is Bill Petty. Petty is a resi-dent of Dallas, Texas and a property owner in Ruido-so. He is a former contractor at Los Alamos. His opposition first appears in a letter to the editor of the Ruidoso News.84 Petty says in his letter that he had planned to retire in Ruidoso, but he is putting those plans on hold until the MRS is decid-ed. Petty was instrumental in founding one of the two local organizations to come into being to fight the MRS proposal, Southwest Nuclear Alliance (SWNA). He is an articulate and opinionated man. It will be useful at this point to present some of his views. J 83Frankie Jarrell, "Feds Approve $100,000 N-Waste Study Grant, 11 Rul oso News, October 24, 1992, 1 .I 84Bill Petty I n Plans t9o91Stolrbe Nuclear Waste Alarm Reader, n Ru1 oso News, October 24, 1 237

PAGE 244

They express themes that are at the heart of the political controversy.85 Chino is seenby Bill Petty, and by many other white residents of the Ruidoso, as a dangerous man. In this view, Chino rules the Mescelaro Apache Tribe as a despot, using fear, threats, physical violence, control of the Tribal economy and jobs, fixed elections, and magic. According to Petty, Chino has many private properties, including homes in Santa Fe, California, and the Bahamas, and a private airplane. He visits Ruidoso in a Lincoln limousine with body guards. He controls the local BIA agency and the FBI agent. According to Petty, Chino also wields a large amount of power in Ruidoso. The town is economically dependent on the Mescelaro-owned ski area, Ski Apache, and Chino has threatened to close it down. This applies pressure on property owners and business persons in Ruidoso. Further, Chino is also a power in a state-wide context. The Tribally-owned and operated Inn of the Mountain Gods appeals to esBill Petty, phone interview with author, _May 28, 1992. 238

PAGE 245

tourists with more than its golf courses; it also has video gambling machines that are illegal in New Mexico. Petty, and other observers, feel that the state government is reluctant to take on Chino on the gambling issue. Taken by themselves, these claims about Chino do not hold much weight. They come from a person outside of the community, who perhaps sees a finan-cial investment in danger, who perhaps sees Indian affairs through a prism of racial bias and intoler-ance. What makes Petty's claims more interesting is that they are encountered again and again in conver-sations and documents, both from white residents of the off-reservation communities and from Tribal members. Another founding member of SWNA was John Wein-berg.86 Weinberg is a retired aerospace engineer from Southern California who has bought a retirement horne just outside of Ruidoso, near the racetrack at Ruidoso Downs. Weinberg and his wife have put their I 86John Weinberg, interview with author, Ruidoso Downs, New Me co, June 23, 1992. 239

PAGE 246

horne up for sale and intend to leave the area, after living there for three years. Weinberg feels that it is inevitable that the MRS will be built. According to Weinberg, SWNA was founded in January of 1992, and by June of 1992, it had already lost much of its momentum. Weinberg became inactive in May. The organization has a core of perhaps ten active members, with 15 to 30 people showing up for meetings. SWNA experienced the sort of problems that inexperienced activist organizations encounter, including divisiveness within the organization, problems focusing on goals and tactics, and burnout. Weinberg says that 'at first they thought they were fighting a mistake by the DOE, and as soon as they explained why it was such a bad idea, it would be over. They carne to reali"ze that they were fighting a well-thought out ahd concerted policy. Weinberg feels that the citizens and politicians of Ruidoso could have stopped the project in its early stages with strong opposition, but now it is too late. The members of the Ruidoso business community are 'in an advanced state of denial.' 240

PAGE 247

Local and state politicians have promised that the MRS proposal would go away. Local business persons are afraid to oppose Chino, and are equally afraid to publicize the MRS proposal to the state and country as a whole. They fear that public perception of Ruidoso as the site of a nuclear waste dump will ruin their business interests, even if the dump is ultimately rejected. Weinberg characterizes Chino as 'one step away from a third world dictator.' Weinberg wrote and published a newsletter for the organization from January 1, 1992, through May 5, 1992, sixteen issues altogether.87 This well written publication focused on educating local ers on the issues connected with MRS siting, and monitoring and recording actions taken by local governmental bodies. A second locally organized opposition group is Sacramento, headed by Dave Dale. Dale has lived in Ruidoso since the first part of 1991. Originally 87John Weinberg, MRS Watch, Ruidoso, New Mexico. 241

PAGE 248

from the Albuquerque area, Dale is retired from a career in real estate development.88 Sacramento was formed in the first part of January, 1992. About 50 people attended the first meeting to talk about how they could oppose the MRS and to express fears that the MRS proposal had al-ready damaged real estate values and the tourist business in Ruidoso.89 Other themes expressed in the meeting included frustration with the perceived arrogance of the DOE and inaccessibility of Wendell Chino, the start of a petition drive opposing the MRS, and claims by a high school teacher that Mescelaro students did not want the facility, but did not want to become involved in opposition efforts be-cause they feared their parents might suffer. A Mescelaro Apache activist who opposes the MRS spoke at the meeting. Donnalyn Torres said that after she became vocal in her opposition to Chino on earlier issues, she lost her job. Torres said that 88Dave Dale, interview with author, Ruidoso, New Mexico, June 23, 1992. 89Dianne Stallings, "Angry Citizens Lash out in Fear Over NWa e," Ruidoso News, January 9, 1992, 1. 242

PAGE 249

other members of the Tribe shared her opposition but feared retribution if they spoke out. One of the concrete results of this first burst of organizing effort was the collection of signa-tures on a petition to Chino asking him not to pur-sue the proposal further. The petitions were col-lected by a student group called Save the Earth, advised by Dale. The students staged a protest in Ruidoso on a Saturday and Sunday. They were joined on Sunday by Tribal member Harlyn Geronimo.90 On the next Monday, Chino visited local business lead-ers in Ruidoso. He said that he had been informed that Dale and the students intended to present the petitions at the Inn of the Mountain Gods or Ski Apache. Chino threatened to close the ski area if this happened.91 He visited several Ruidoso busi-ness leaders to ask them to prevent a demonstration 90Dianne Stallings, "Picketers Protest MRS, Ruidoso News, ary 20, 1992, 1. 91Marliyn Haddrill, "Chino Would Have Closed Ski Apachen, El Times, January 23, 1992; Dianne Stallings, "Chino Warns eters to Stay Off Indian Lands, Ruidoso News, January 2 3, 1; and Dave Dale, interview with author, Ruidoso, New Mexico, 23, 1992. 243

PAGE 250

on Indian land. The business leaders visited Dale, who called off plans to present the petitions to Chino in person. Chino later sent Tribal Secretary Fred Peso to pick up the petitions from Dale.92 Dale has also become inactive and feels that it will be very difficult to organize local opposition suf-ficient to overcome the DOE and Chino. Sacramento, as an organization, has become inactive as well. Another source of opposition is a group called the Water Defense Association. This group was formed to fight an attempt by the Mescelaro Apache Tribe to change allocation of water rights in the area. This group is funded and controlled by large landowners in Lincoln County, among them a former Interior Secretary. 93 Local opposition has also.taken the form of actions and resolutions by governmental bodies. The first body to pass a resolution against MRS siteing was the Ruidoso Village Council, in November of I 92Dianne Stallings, "Chino Sends for Protest Petitions," Ru1 oso News, January 27, 1992, 1. 93Weinberg. 244

PAGE 251

1991. That action was also taken by the Lincoln County Commissioners, on December 18, 1992, to oppose a MRS in Lincoln County or any adjacent county.94 By May of 1992 local governments opposed included the City Councils of Ruidoso Downs, Alamog-ordo, Roswell, Tularosa, and Carrizozo. The only local government bodies not to oppose the proposal were the Otero County Commission and the Cloudcroft Town Council. The most active of all these local government groups was (and is) the Ruidoso Village Council. The leader in this has been Councilor Bill Karn. Karn proposed that the Village Council form a perma-nent committee to keep track of the proposal. In February of 1992, the Ruidoso Village Council formed such a group. What preliminary conclusions is it possible to make about the relationship between the Mescelaro Apache Tribe and the off-reservation communities that border it? The community with the greatest 94Dianne Stallings, "Commission Opposes a Nuclear Waste Dump in incoln County," Ruidoso News, December 19, 1991, 1. 245

PAGE 252

number of links to the reservation is Ruidoso. Much of the economy of the town is dependent on Ski Apache. More than one business person has said that without the ski area, the town might as well close down in the winter. Most of Ruidoso's tourism busi ness has traditionally come from west Texas. The collapse of the oil industry in the 1980s hit west Texas hard, and consequently Ruidoso. Property values fell dramatically and many businesses failed. The past two years has seen a slow but steady improvement, particularly the last ski season, which had very good snow. Businesses are hopeful of seeing continued steady improvement. The prospect of a nuclear waste dump on the reservation is potentially devastating. Business persons are frightened that it will scare away tourists and potential buyers of retirement homes. There is some evidence that this is already happening. On the other hand, they are equally fearful that a publicized battle over the MRS could have the same effect. Wendell Chino is a powerful force in local politics. Elected officials and business persons 246

PAGE 253

are reluctant to go against him. There are very serious questions about whether Chino could legally close the ski area. It is on leased public land, and potentially the lease could be broken if he took such an action. The local politicians and citizens groups that are opposing the MRS are operating at a disadvan-tage. They are trying to counter a well-financed and well-organized campaign by the Negotiator, DOE and private sector consultants to convince local residents that a MRS is safe and would benefit the local economy. The Ruidoso Village Council, at the urging of Bill Kern, applied to the DOE for a Phase I study grant, with the purpose of using the funds to keep track of the Mescelaro proposal. This ap-plication was vetoed by New Mexico Governor King.95 The Governor offered the resources of his office to help Ruidoso oppose the site. By June of 1992, Councilor Karn was proposing to bypass the state and I 95Frankie Jarrell, "Governor Says 'no' on Funds, 'no' on NWas e," Ruidoso News, Deceinber 16, 1991, 1. 247

PAGE 254

take the anti-MRS fight directly to the federal government. 9& Ruidoso displays none of the signs of. overt racism that are common in towns bordering reserva-tion. It would be surprising if relations had been universally cordial between the communities, but there does not appear to be a noticeable level of hostility and tension between them now. The MRS proposal has the potential to create these sorts of tensions. The local citizens feel powerless to oppose the MRS. Some feel that it is inevitable that the federal government and the Mescelaros, in the person of Wendell Chino, will make a deal.97 They know that if they attempted to apply for MRS study grants, it would be vetoed by the state gover-nor, and they feel that it is unfair that the feder-al government takes the position that the Mescelaro Tribe is a sovereign government, and does not need the approval of the state to site a MRS. Residents 96Frankie Jarrell, "Ruidoso Bypasses State in Its Efforts to N-Waste Dump," Ruidoso News, June 11, 1992, 1. 97For instance, Bill Karn, quoted in Buddy Baker, "Karn Says ste Site's a Done Deal," Ruidoso News, November 28, 1991, 1. 248

PAGE 255

of Ruidoso feel that Chino controls the Inn of the Mountain Gods, and gets away with illegal gambling because the state is afraid to take him on. When the Inn was built, a stream that runs through Ruidoso was impounded to form a large lake. Ruidoso residents feel that this was also illegal. It is rumored that the Inn loses money. The chief of security at the Inn is Chino's son Mark, and he is rumored to handle problems withviolence. Many local residents and activists feel that perhaps Chino has no intention of building a MRS, but is going the process as a means of acquiring a bargaining tool. Opposition at the State Level There are two important aspects to the relationship between the state and the Mescelaro Apache Tribe. The first is the adamant opposition by Governor King to any further facilities having to do with the nuclear industry in New Mexico. The other concerns the sovereignty of Indian nations, and the 249

PAGE 256

unclear jurisdictional relationships between state and Tribal governments. New Mexico is host to WIPP, the facility near Carlsbad designed to provide permanent storage to low-level nuclear waste. That facility has been tied up in litigation between the federal government and New Mexico for years and a permanent resolution of the issues involved may not come for many more years. Meanwhile, no waste is being stored at WIPP. Governor King feels that it is not fair to New Mexico to site a second nuclear waste dump in New Mexico, even if it is designed to be temporary. Indeed this argument can be expanded to a regional level. The vast majority of nuclear reactors are sited west of the Mississippi. Proposals for permanent and temporary storage sites near to reactors have been defeated repeatedly. It is.not unreasonable to see the problem of nuclear waste as not a national problem, but a problem of the eastern states. While the Governor has opposed the MRS, he 1s also concerned with maintaining good relations between the state and all of the Indian reservations 250

PAGE 257

in New Mexico, not just with Chino and the Mescelaros. As Ray Pal, his Environmental Secretary put it, "[T]he Governor is adamantly opposed to the waste site, while at the same time respecting the sovereignty of the Mescelaro Nation. 1198 The Governor is concerned that some groups in Ruidoso may be turning this controversy into a conflict. It is the Governor's understanding that early on in the process officials of the Negotiator's Office implied that if the state opposed the plan, it wpuld not go in, and that transportation would be under state regulation. A related aspect of the sovereignty question is gambling on Indian reservations. Current federal law allows Indian nations to have gambling on their reservation of the same sort that is legal ln the rest of the state, and requires the Indian nation and the state to negotiate an agreement on exactly what sorts of gambling will take place on the reservation. There are also involved disputes about what constitutes equivalency of gambling, technical ques-98Ray Pal, phone interview with author, April 27, 1992. 251

PAGE 258

tions that I will not consider here. The important point here is that the Inn of the Mountain Gods, the Mescelaro-owned facility on reservation land immedi-ately adjacent to Ruidoso, offers gambling that al-most certainly would not be allowed off of the res-ervation. In February the New Mexico State House of Rep-resentatives passed a memorial opposing the MRS, by a vote of 50 to 9.99 On a national level, both Senators and two out of three Representatives oppose the proposal. The U.S. Representative for south-central New Mexico, Joe Skeen, seems confident that the Negotiator will not approve MRS siteing without the governor's approval. 100 The status of relations between the state of New Mexico and the Mescelaro Apache nation are hard-er to summarize than those between the Tribe and local communities. Wendell Chino has political power that the state cannot ignore. In this in-99John Weinberg I "J. Underwood Resolution Passed, n MRS Watch, e 1, Number 7, February 21, 1992. 10Frankie Jarrell, 11N-Waste Studies Stalled, 11 Ruidoso News, ary 27, 1992, 1. 252

PAGE 259

stance the federal government seems ready to treat the Mescelaros as a sovereign nation, capable of entering into an agreement with the Nuclear Waste Negotiator to site a MRS on Mescelaro land without the approval of the state. It also seems clear that the DOE and the negotiator are telling the governor one thing and Chino another. The governor is reluctant to take on Chino in a dispute that will be framed in terms of the sovereignty of the Mescelaro nation. He is also very reluctant to allow another nuclear waste facility to be placed in New Mexico. By April of 1992 the lines of confrontation and the terms of the debate had become clear. Support-. ing Wendell Chino and at least part of the Mescelaro Tribe in their desire to at least study the MRS was the DOE, the Negotiator and private sector consultants, primarily Miller Hudson of Pacific Nuclear. Opposition to even studying MRS was strongest at the local level, being driven by the organizing efforts of SWNA and Sacramento, as well as by Bill Karn of the Ruidoso Village Council. Other local politicians and local business people were fearful of both 253

PAGE 260

the prospect of a MRS on the reservation and of publicity the controversy killing their businesses. Opposition at the state level, and its effectiveness, is harder to evaluate. The Governor seemed adamant in opposition, as did most of the state government and national representatives. Predictions on the prospects of whether a MRS would actually be built spanned the spectrum. The Governor expressed his understanding that the Negotiator would not press the issue in the face of state and local opposition. That optimism was shared by other state officials. On the local level, the feeling was quite different. Dave Dale of Sacramento and John Weinberg of SWNA both felt that the battle was over and a MRS siteing on the reservation was inevitable. Bill Karn of the Village Council felt that the site was an accomplished deal. The pessimistic viewpoint of the local activists and government officials seemed to be confirmed, and the optimism of state officials contradicted in April of 1992 when the Mescelaros applied 254

PAGE 261

for and received Phase II-A funding .101 This money is to be used for public education efforts. The Tribe has applied for Phase II-B as well. The final phase of the process is construction, which could take place after the Tribe and the Negotiator agree on a benefits package and the United States Congress approves the agreement. Tribal Politics The distinction between Tribal politics and relations between the Tribe and outside communities is somewhat arbitrary. My interest in Tribal politics is driven by the MRS proposal, and I am trying to understand Tribal politics in a context of how it will affect outside communities. In this section I will discuss Wendell Chino, starting with what I can treat as facts and moving to accusations and rumors. I will present the results of two long conversations with Mescelaro activists Francine Magoosh and Donn-101Frankie Jarrell, 11DOE Awards Mescelaros $200, 000, n Ruidoso April 23, 1992, 1. 255

PAGE 262

alyn Torres. I will discuss the role of the Tribe's paid consultant, Miller Hudson. Any discussion of Mescelaro Tribal politics has to begin with Wendell Chino, or more accurately, I Mescelaro politics is Wendell Chino. At 72 years old, Chino has been Tribal Council President for 39 years, since He has a reputation among Indians and non-Indians interested in Indian affairs as a shrewd leader and businessman. The Mescelaro Apaches are regarded as one of the more financially successful Tribes. Their ventures include Ski Apache, the Inn of the Mountain Gods, a store and gas station at Mescelaro, timber sales and cat-tle. 103 Yet despite their in these business ventures, unemployment and poverty are serious prob-lems among the Mescelaro. Unemployment is perhaps 102Radelat, 18. 103Mescelaro Apache Reservation, General Information, brochure ss ed by Mescelaro Apache Tribal Government, no date, no author. 256

PAGE 263

55%, and most employed Mescelaros work for one of the Tribal enterprises. 104 I have mentioned some of the perceptions of off-reservation residents about Chino, but what do the members of his Tribe have to say about him? I talked with two dissidents and will draw on pub-lished remarks of some others. This is not the first time that Chino has been criticized for promoting potentially ecologically disastrous development. In late May of 1989 Chino entered into an agreement with Molycorp to mine yttrium and zirconium on the Mescelaro reserva-tion. 10s This agreer.nent was negotiated in secret between Chino and Molycorp and approved by the Tribal Council. There is a widespread perception on the reservation that the Tr.ibal Council is a rubberstam:p body under Chino's control. 106 104Radelat, 18. 105Bill Diven, 0Mescelaros Seek Leader's Ouster Over Molycorp a ,"Albuquerque Journal, June 11, 1989, c3. I 106Donnalyn Torres, interview with author, Mescelaro, New et'co, June 25, 1992; and Francine Magoosh, interview with author, he Pass, New Mexico, June 24, 1992. 257

PAGE 264

Mescelaro opponents to the agreement criticized it on the grounds that it was not adequately discussed by the Tribe, that the 10-year term of the agreement was too long and that the financial terms were unfavorable to the Tribe. Critics of Chino and the agreement formed a group called Tribal Concerns, one of the leaders being Donnalyn Torres. Tribal Concerns criticized Chino on other grounds as well. They included the high level of unemployment among Mescelaros; dishonest elections; poor education; fear and intimidation of critics of Chino and his administration; and criticism of Chino's wife, Rita, and a demand that she be removed from her job as manager of Inn of the Mountain Gods. Tribal Concerns also asked for full and open accounting of all Tribal enterprises. The Molycorp agreement fell through because of a drop in the price of yttrium that made it unprofitable to mine. The rest of the complaints of Tribal Concerns are still One of Chino's opponents, Harlyn Geronimo, was a Tribal Councilor in 1989. He presented a resolu-258

PAGE 265

tion to the Tribal.Council asking for Rita Chino to be removed from her job. Other members of Tribal Concerns claim that there is no accounting of monies at the Inn, that Rita Chino interferes with manage-ment and that the Chinos are skimming profits to finance their lifestyle.107 Another issue raised by Tribal Concerns is the Tribal bar in Mescelaro. 108 Tribal Concerns feels that it is inappropriate for a Tribal Council not only to allow but to encourage alcohol consumption, when alcoholism is such a serious problem among Indians in general and the Mescelaro in particular. Elections are held for Tribal Council and al Council President every two years. Joseph Geron-imo ran against Chino in 1975, 1979, and 1987, and attempted to run against Chino in the 1989 election, 107Magoosh, Torres. 108Tribal Concerns, letter, October 3, 1989. Obtained by the tt or from Tribal Concerns. 259

PAGE 266

but was denied a place on the ballot. Joseph Geronimo claimed that he was illegally excluded.109 In the 1991 election Harlyn Geronimo and Donna-lyn Torres ran against Chino. Torres was eliminated in the primary, and Chino won the general election. Ballots are marked in pencil and are counted in secret by an election commission appointed by Chino. The city of Alamogordo has offered to let the Tribe use its voting machines, but Chino maintains that the Mescelaro IRA constitution of 1936 requires the procedures in place. 110 Another important 1ssue 1s a loan taken out by the Mescelaro Tribal Council to finance construction of a sawmill. The loan is for $17 million and is guaranteed by proceeds from the Inn of the Mountain Gods. The terms of the loan require the Tribe to waive its sovereign immunity from suits to recover I 109Frankie Jarrell, "Chino Tops in Primary Balloting, 11 Ruidoso 1ewa_, October 7, 1991, 1; "Tribal Election Officer Says Election aP, Filed Incorrectly, Alamogordo Daily News, September 2 6, 11; and Joseph Geronimo, letter to Mescelaro Election Board, ep ember 21, 1989. J 110Torres; Magoosh; Jarrell, October 7, 1991; Tribal Concerns, c pber 3, 1989; and Charles Stallings, "Chino Wins by Landslide,n uiaoso News, November 7, 1991, 1. 260

PAGE 267

the loan, if necessary. Harlyn Geronimo fears that if the sawmill is unsuccessful, this would lead to the Tribe losing control of the Inn.111 Tribal Concerns has brought up other issues as well.112 The Tribal store and gas station in Mescelaro was closed down and had been closed for four or five years in 1989. It has since reopened, but a promised laundromat has been converted into the MRS information center. Besides the question of Rita Chino being employed as the manager of Inn of the Mountain Gods, Tribal Concerns also feels that too many non-Tribal members are employed at the Inn; They object to Mark Chino being the Special Officer for the BIA police, the only law enforcement agency on the reservation. They believe that the previous FBI agent was responsive when they brought problems to him, but he was replaced with one who is afraid of Chino. Chino is a good friend of recently con-victed Navajo President Peter MacDonald, and they 111Harlyn Geronimo, letter to Mescelaro Apache Tribe, November 989. 112Magoosh. 261

PAGE 268

have been seen together in Las Vegas. According to Torres and Magoosh, they both lost their jobs due to their activities in Tribal Concerns. The entire context of Tribal politics on the Mescelaro reservation revolves around Wendell Chino and the power that he wields. Many of the claims made against him by his opponents are impossible to confirm, but there are some conclusionswith which I can feel confident. The first concerns the elections. The election procedures do not meet minimum standards. The ballots are marked in pencil, counted in secret by an election commission appointed by Chino, and his margin of victory is suspiciously high. There is no reason to have confidence in the honesty of the process. Second, it is impossible for Tribal members to get an accurate accounting of the Tribal concerns. No one knows if they are profitable, no one knows where the money goes if they are profitable. These concerns may be well-managed, but the perception is widespread among Chino's critics that they are being milked of profits to support Chino's and his wife's lifestyle. Just as many off-262

PAGE 269

reservation critics believe that Chino owns houses in other parts of the country, so do Tribal members. Jobs in Tribal enterprises are dependent on not criticizing the President. Last, there is an atmosphere of fear and apathy on the reservation. The. two activists that I talked to said that they were not afraid to talk because they had nothing to lose. They, and their family members had already lost their jobs. Their organization had collapsed, as members had dropped out. There is a fear of Chino that goes deeper than that of loss of jobs or of retribution. More than once I heard the word magic used, a belief that Chino has powers beyond that of an ordinary man. Total control of the political arena by Chino and his associates has destroyed the political process. Faced with the MRS proposal, opponents do not know what to do. Part of the Phase II-A grant lS for educational activities concerning the MRS. MRS critics characterize this as propaganda. Phase II-A monies are going to pay the salary of Miller Hudson and to fund a MRS education center next door to the store and 263

PAGE 270

gas station in Mescelaro. The MRS center opened on the July 4th weekend. This weekend is perhaps the biggest tourist day of the year for the Mescelaros, as it is the time of the annual Mescelaro coming of age ceremony. In addition, Mescelaros who live off the reservation frequently pick this time to return to visit with family and friends. Miller Hudson plays a key role in the MRS pro-posal. He was long active in Colorado state Demo-cratic party politics, serving as party chairman and a state legislator. 113 He has been working on nu-clear waste issues for about two years, mostly on trying to find a site for low-level nuclear waste for the states of Colorado, New Mexico, Nevada and Utah. These states joined together in an agreement under federal legislation passed in 1985 requiring states to be responsible for disposal of low-level waste produced in their boundaries. Hudson, and Nuclear Pacific, approached Trinidad, Colorado for 113Miller Hudson, co,June 25, 1992. interview with 264 author, Mescelaro, New

PAGE 271

this purpose in 1989.114 Opposition by residents led Nuclear Pacific to look elsewhere, including the Mescelaro Apache Tribe. When the Mescelaros received the original notification from the Nuclear Waste Negotiator in May of 1991, Tribal Secretary Fred Peso approached Hudson. According to Hudson, he was then placed on the payroll of Pacific Nuclear, which is acting as consultant to the Tribe under the Phase 1 study. I visited the MRS education center in Mesce1aro with Hudson in June of 1992. The exhibits come from industry material. and include the edited version of the Sandia crash tests that I mentioned earlier. According to Hudson, the majority of the Tribe has confidence in letting the Tribal Council look at the proposal. Hudson repeated the incorrect claim that a MRS site would require a full EIS. His timeframe for completion of the negotiation phase was the end of 1993, with construction to take 5 or 6 years. Hudson claimed that the compensation package would have to include the state and local communi-114Nancy Lowe, phone interview with author, July 13, 1992. 265

PAGE 272

ties, another contradiction of the relevant federal legislation. Under the 1987 amendments, the affected governmental unit would be considered the reservation, not the surrounding communities. What conclusions can be drawn about Tribal politics in connection with the MRS? How does Tribal politics fit into the larger context of federal policy? What role do state officials play? Concluslons and Speculations First of all, Chino has certainly been an effective leader for many years. He has built a reputation as a strong advocate of the interests of his Tribe and of Indian sovereignty. The Mescelaro Apache reservation has an impressive record of nonextractive development. The Inn of the Mountain Gods is an impressive and beautiful destination resort. Ski Apache is a successful business operation. Instead of the reservation being dependent on the surrounding communities for marginal employment, the surrounding communities are dependent in many 266

PAGE 273

ways on the Tribal enterprises. Chino is a national leader. Other Indian tribes look up to him and follow his example. On the other hand there is certainly some doubt about the honesty of the elections that have retained him in office for almost forty years. The argument that a constitution written in 1936 requires ballots to be written in pencil and counted in secret by a group that is obligated to Chino for their jobs cannot be given credence. It is equally unlikely that in a honest series of elections any leader, no matter how competent or popular would continue to be re-elected for twenty elections. Fractionation is a facet of tribal politics on any reservation. It is not likely that Chino has retained office through honest elections. How are we to evaluate the nature and charges of the opposition? It sounds unprofessional and unacademic for me to say that the people that I talked to seemed honest, that they impressed me as having high character, that they were not flakes, but there is no other way to say it, and I believe 267

PAGE 274

it to be true. Francine Magoosh and Donnalyn Torres are, I believe, sincerely working, against great disadvantages and possible physical harm, for the good of their people. I believe what they have told me, even though I am not in a position to gather credible evidence to support them. Why do I believe them? The most important factor is a subjective one. There is an atmosphere of fear and of intimidation on the reservation. People are genuinely afraid to be seen talking to an outsider, are afraid to be interviewed, afraid of the possibility they might be quoted as saying something against Chino. In contrast while the NCT was deeply divided among itself in which direction it should take in the future, no one was afraid to talk to me. The difficulty that I encountered in talking to people on the NCT reservation was an unwillingness to bring an outsider into a family argument. People expressed the sentiment that the divisions between factions in the Northern Cheyenne were caused by and exploited by outsiders. That is not true of the Mescelaro. 268

PAGE 275

Very real questions exist as to the management of Tribal enterprises on the Mescelaro reservation. Here again I have only claims and stories to go on. But the claims and stories come from people who have tried to find out the information and have been denied it. Nobody knows if the Tribal enterprises make money. Nobody knows if Wendell Chino really owns property in California and the Bahamas, or if Rita Chino takes cash out of the resort safe. But it is possible to observe that a lot of the Mescelaro people are suffering in poverty and unemployment. The outside view of the Mescelaros as a prosperous and successful Tribe is not an accurate one. If the Tribal enterprises are successful, more people should have jobs and the annual dividend should be more than $50. It 1s very unclear what Chino's aims are here. So far, the MRS team within the Mescelaro Tribe consists of Chino, Tribal Secretary Fred Peso, and the director of the MRS information center, Silas Cochise. There is absolutely no evidence that other 269

PAGE 276

members of the Tribe have been brought into the decision making loop. It is widely believed in the white community that this is another one of Chino's bluffs. He is willing to take $100,000 for Phase I and $200,000 for Phase II-A. He is probably trying to get his hands on the rest of the $3 million in Phase II-B. But he has no intention of ever letting the DOE build a MRS on the reservation. He wants a bargaining lever with the state. He wants the state to stop hassling him about illegal gambling at the Inn, and maybe throw in a few other goodies, in exchange for ultimately turning down a MRS. Miller Hudson's.role is significant, and to a great extent argues against the interpretation above. Hudson must be considered a public relations flack for the nuclear waste industry. Pacific Nuclear stands to gain millions from any program that involves moving nuclear waste from one point to another. Yucca Mountain will not open before 2010, and it may never open at all. That is a lot of foregone profit for a firm that needs nuclear waste 270

PAGE 277

199 i to be moving around in its casks. Each cask de-signed for shipment by truck would hold between four and nine fuel assemblies, while casks designed for rail shipment will hold between 21 and 52 assem-blies. A cask that is used to ship spent fuel rods by truck 1s worth about $1.5 million. A cask for shipment by rail will cost perhaps $3 million. 115 There are thousand$ of spent fuel assemblies that need to be moved. There is an enormous potential for profit for manufacturers of transport casks. What role do state officials play in all of this? The governor has gone on record repeatedly that he unequivocally opposes any further nuclear waste sites in the state of New Mexico. He has offered state resources to Ruidoso to oppose the MRS, but has failed to follow through. He has stat-ed that the Negotiator has assured him that a MRS will not be approved over objections of the state or local residents, but Phase II-A monies were approved after it was abundantly clear that there is ample Accounting Office, Development of Casks for ent Fuel Needs Modification (Washington, D.C. : GAO, 271

PAGE 278

state and local opposition. Governor King does not want a MRS in his state; he also does not want to butt heads with Wendell Chino. Perhaps he is trying to wait the whole thing out, hoping that it will go away. How does the MRS proposal fit into federal policy? This is more complicated, but it is possible to be much more confident about what is happening. The federal government has promoted and subsidized nuclear energy since the end of World War II. The question of disposal of the wastes associated with the generation of electricity by nuclear fission was never fully faced. At first, it was assumed that wastes would be reprocessed to recover uranium and plutonium. The possibility of making nuclear devices from reprocessed waste and the realization that reprocessing created more waste than it consumed forced policy makers to confront the disposal problem. Nuclear reactor sites were designed for extremely limited on-site storage capabilities. Design modifications have enabled these sites to expand their storage capacity so that on-site stor-272

PAGE 279

age has been sufficient until now, and conceivably could be sufficient until Yucca Mountain opens. But Yucca Mountain may never open. The schedule has consistently slipped. There are very serious technical and political questions that remain unanswered. At the same time the DOE has made a commitment to accept title to the accumulating inventory of spent fuel rods in 1998. The nuclear establishment realizes that in order to build a new generation of nuclear power plants, it must present some solution to the waste problem to the public. Yucca Mountain is not the best solution from either a policy or a technical viewpoint; but it will enable more power plants to be built, protecting private sector profits and academic and bureaucratic jobs. Current legislation mandates linkages between any MRS site and Yucca Mountain. A MRS cannot be built until Yucca Mountain is licensed. These linkages must be removed for a MRS to be useful. If the linkages are removed, the possibility that a MRS will become a de facto intermediate term storage 273

PAGE 280

site becomes much greater. In fact, my examination of the question has led me to conclude that this is in fact the strategy of the nuclear establishment. Further, the MRS policy is deliberately aimed at Indian nations. By treating Indian nations as sovereign entities, the nuclear establishment hopes it will be possible for the Negotiator and the DOE to override objections by state and local governments to MRS siting. 274

PAGE 281

CHAPTER FOUR CONCLUSIONS I need now to try to answer some of the questions that drove this research project. On one level, I have more questions now than when I started. When I started, I knew that I wanted to learn about some:area where Indian nations and the dominant culture, of which I am a part, intersected. Following my own inclinations, I used policy questions as a vehicle. How can I sum it all up? How can I impose an order on this unwieldy mass of information, history, attitudes, prejudices, rumors and lies? The simple and truthful answer is that I cannot. Theoretical frameworks are useful, sometimes essential, but we must not let the use of them blind us to the essentially chaotic nature of real life. In this study I have looked at how federal energy policy in two vastly different areas, devel-275

PAGE 282

opment of domestic coal resources and electrical generation by nuclear power, has affected two Indian nations. The specific important federal energy policies that effect the Northern Cheyenne are the North Central Power Study produced by the Bureau of Reclamation in t.he 1970s, the Clean Air Act and its amendments in 1991, and the Federal Coal Leasing Act and its amendments. The specific important federal policies that effect the Mescelaro Apaches are the Nuclear Waste Policy Act of 1982 and its 1987 Amendments, and the long history of federal promotion of nuclear energy as a source electrical power. This interaction takes place within the context of a history of non-energy federal policies towards Indian nations. The important federal policies here are the paternalistic approach taken under the Bureau of Indian Affairs since the late 1800s and the Indian Reorganization Act of 1934. The theoretical framework that I have used in examining the effects of federal policies on the Northern Cheyenne and the Mescelaro Apache Tribes combines cultural differences between indigenous nations that lie within the 276

PAGE 283

political boundaries of the United States and the Euro-American culture, and the lack of understanding and respect for indigenous cultural forms by the dominant culture, and a political economy approach that sees Indian nations as less-developed economies dependent on the more-developed economy of the Unit ed States. The most important aspect of the European concept of international law in connection with this study is sovereignty. How do these policies affect Indian sovereignty? They confuse it. Indian sovereignty is confusipg anyway. It is based on two things; the United States found it convenient in various periods of its history to treat with Indian nations on an equal basis, nation to nation so to speak. I doubt that any of the many American officials who signed solemn proclamations swearing undying felicity were under the impression that they were dealing with equals. In any event, the United States was invariably lying whenever it signed a treaty. It did so when it was more convenient than imposing its will directly by force. 277

PAGE 284

The other basis of Indian sovereignty is the not unreasonable assumption by Indians that they are entitled to free and clear title to some portion of the land that they enjoyed before the arrival of the Europeans. It is important to note here that while indigenous notions of land ownership certainly differ from the Euro-American concepts in that individual ownership of land plays almost no role in the former and is central to the latter, There is no that at least the two specific societies examined here have a strong concept of ownership of land in a collective sense. The Indians certainly regard their cultures and their nations as being the equal of, if not super1or to, the Europeans. Sovereignty has waxed and waned. Recently, it has appeared to wane. Supreme Court decisions, particularly regarding Indian religious practices, have gone against the Indians. On the other hand, the Supreme Court seems to understand sovereignty questions when they involve property and money, so perhaps it is not too surprising to see the Congress of the United States assert that Indian nations are 278

PAGE 285

completely free to accept nuclear waste that the dominant culture cannot decide among itself how to dispose of. This willingness of the dominant culture to recognize sovereignty in questions of taxing policy, resource development and other commercial areas, while remaining unwilling to recognize sovereignty in religious and other cultural questions, is a reflection of the inability and unwillingness of the dominant culture to appreciate and understand the less-powerful cultures. Sovereignty in this context must be seen as a convenient tool to enable the dominant culture to continue its dominant position. The Northern Cheyenne reservation was created by executive order rather than through treaty agreement with the United States. An executive order does not have the standing under principles of international law that a treaty would have, a treaty implying that the two parties were equal sovereign nations. The Northern Cheyenne reservation is surrounded by coal development. They fear that if the dominant culture decides that it needs the coal 279

PAGE 286

resources of the reservation, the reservation will be terminated. On the other hand, the Northern Cheyenne have successfully argued for their rights as a separate and distinct culture in litigation against the Department of the Interior and powerful private sector energy companies. They have forced a recognition that the Northern Cheyenne culture is a distinct governmental structure that cannot be treated in the same way that non-Indian communities bordering on the reservation can be, and they have forced that recognition in an EIS produced by an important agency of the federal government. They have been successful in the Supreme Court in forcing the recognition that the mineral resources of the reservation belong to the Tribe as a whole. They have been successful in forcing private sector energy companies to take measures to ensure that the Northern Cheyenne participate in some of the benefits of offreservation coal development. They have survived the assimilationist policies designed to eliminate Indian reservations. Land on the reservation is now 280

PAGE 287

virtually completely held by the Tribe or by Tribal members. Policies of the Tribal Council government make it very difficult for reservation land to pass out of non-Northern Cheyenne hands. The Tribe has clear and unambiguous title to a small portion of the lands that they regarded as their own when they carne into contact with the dominant settler culture. The Mescelaro experience was different in some ways, but the overall result was strikingly similar to that of the Northern Cheyenne. The Mescelaro engaged in protracted warfare, first with the Spaniards and then with the Mexicans and Americans. This warfare was initiated by the Europeans moving into and expropriating the landbase that the Apache bands required for their existence. The Northern Cheyenne fought the European invaders when they were forced to, and consistently pursued a policy of trying to make accommodation with the more powerful invading culture. The Northern Cheyenne were removed to Oklahoma; some of the Mescelaro, and other bands that became part of the IRA Mescelaro Tribe, were removed to Florida and then to Oklahoma. The 281

PAGE 288

Northern Cheyenne escaped from their confinement, and in the face of almost certain death returned to the land that they regarded as belonging to them. Through the intervention of sympathetic military officers they were allowed to remain there and eventually were granted a reservation. The Mescelaro, also through intervention of sympathetic military officers, were granted a reservation, and after long suffering their comrades in confinement were allowed to return to the site of their present reservation, the heart of their former range. Both Tribes feel that they bought the right to live on their present reservations with the blood of their ancestors. The Mescelaro have not felt the threat of termination that the Northern Cheyenne have. This is due to three factors. The state of New Mexico 1s much more sympathetic to the expressed desires of Indian nations within its borders. This is probably due both to the much different history of New Mexico as compared to that of Montana and the fact that there are so many more Indian nations in New Mexico than in Montana. Second, the Tribal Council Presi-282

PAGE 289

dent of the Mescelaros, Wendell Chino, 1s a person-ally politically powerful influence in New Mexico politics. Third, the Mescelaro Apache reservation has no important mineral reserves that the dominant society wants and that the Tribe is unwilling to give up. Also important in the context of sovereignty is .. the role of IRA governments. The Northern Cheyenne government is challenged by some members of the Tribe. Some traditionalist Northern Cheyenne feel that Dahle is ineligible to serve as the Tribe's leader. Some Tribal members feel that Dahle won election to the Tribal Presidency through fraud. Those Tribal members who are most opposed to devel-opment of the coal resources on the reservation are most opposed to Dahle. On the other hand, Dahle runs a fairly open administration. The research that I have done indicates that Dahle is interested in doing what he thinks will benefit the Tribe the most in the long run. Along with most of the other progressives of the Tribe, he sees that as develop-ment of the coal reserves on the reservation in some 283

PAGE 290

sort of joint ownership with a private sector energy company. Wendell Chino, as opposed to Dahle, has run the Tribe for his own good and the good of his family and cohorts for many years. There is no reason to believe that elections are honest. There is no reason to believe that Chino has the interests of the Tribe as a whole at heart. There is every reason to believe that Chino is entertaining the MRS proposal because he is corrupt. There is evidence to indicate that Tribal economic enterprises are under the control of There is reason to believe that employment on the reservation is controlled by Chino, and that he uses this control to reward allies and to punish opponents. How do these policies affect Tribal council governmental structures? They serve to strengthen the foreign forms that have been imposed on Indian nations. The dominant culture needs tribal council governments to regularize, rationalize and legitimate the exploitative relationship that exists between them. Conversely, the Tribal Council govern-284

PAGE 291

ments of the Northern Cheyenne and the Mescelaro Apaches are strengthened when they can negotiate agreements with government agencies and private sector companies that allow them to control distribution of resources. How do these policies affect traditional governmental structures? I am not sure if federal energy policies have much of an effect at all. Traditional government structures have been sup for one hundred years or more, by measures including arresting people for going to a Sun Dance, beating Indian schoolchildren for using their own language, forcing males to cut their hair, promoting half-breeds into positions of power, etc., etc., ad nauseam. Geronimo, faced with the inescapable conclusion that he could no longer fight the white men who had invaded his horne, surrendered. He was imprisoned in Florida, along with 500 other Apaches, many of whom had served as scouts for the United $tates Army. Geronimo died there. Their children were taken from them and sent to Carlisle, where half of them died. The wonder is that there are 285

PAGE 292

still some remnants of traditional ways. This gives testimony to how strong the culture was. Similarly, the Northern Cheyenne were subject to concerted attempts to suppress their traditional cultural forms. But the revival of the men's societies and the Sun Dance speaks to the continued viability of Cheyenne culture. If anything, crises like the coal leases on the Northern Cheyenne reservation and Chino's bid for a MRS can only assist those arguing for traditional forms of government, by showing people how completely and utterly the IRA governments have failed to represent their interests. The dependency model was developed to explain the relationships between less-developed economies and more-developed economies. By now it has become a fairly standard way in which to view the relationships between the United States and Indian nations. My discussion has shown that the analysis is useful in the cases of the Northern Cheyenne and the Mescelaro Apache Tribes as well. 286

PAGE 293

Both nations have the opportunity to export a raw material that the United States values. In the case of the Northern Cheyenne the export is coal. The Mescelaro's 'export; is the willingness to take charge of a waste product that the dominant culture wants nothing to do with and is willing to pay well to get rid of. Both have internal elites, elites that in some instances identify more with the dominant culture than with their own, but there are striking differences. Dahle does not identify with the value systems of the traditional Cheyenne; he does not even speak the language, yet it is my judgement that he has the interests of the Tribe as a whole at heart. He sees coal development as the way to eliminate poverty among the Northern Cheyenne. Chino seems to have completely lost his way. He rules through control of jobs and violence. He has established a partnership with the Negotiator to help solve the problems of the nuclear industry. His policy towards his opponents is to belittle and to insult. There is an atmosphere of apathy and fear on the 287

PAGE 294

Mescelaro reservation. Chino has come to completely identify with the worst of the values of the dominant econom. Those who are his supporters get jobs; those who are not do not. The Northern Cheyenne econom clearly illustrates the principles of linkages. There is no system in place to capture wealth that may be produced by coal sales. Even the limited amount of cash that comes onto the reservation now is mostly captured by off-reservation white-owned The situation on the Mescelaro reservation is in many ways identical. The potential is there to develop a broader economic base, but the important Tribal enterprises still depend on exporting commodities, ranging from timber and beef to tourist experiences. In one respect Wendell Chino has turned the dependency model on its head. The local economies of the dominant culture are completely dependent on him and the tourists that Ski Apache brings into Ruidoso. 288

PAGE 295

Edwin Dahle is attempting to modify the model as well. He proposes to use the coal on the reservation to generate electricity, thereby adding value and capturing at least a portion of the true value of the coal. Distortions of the local economy, as predicted by the model, can be observed on the Northern Cheyenne reservation. A relatively few Northern Cheyenne have well-paying jobs at the mining and generating facilities in Colstrip. This is good for them, but makes the poverty of the rest of the Tribe all the more appa!ent. The relationship of the administrative/bureaucratic structure to the Tribes is part of the dependency model. This includes the BIA, the DOE and state governments. How do these policies affect relationship between local, state and federal governments and the Tribes? The DOE probably does not know, and if it does know, it does not care how much bad feeling the MRS proposal is causing between the reservation and Ruidoso. DOE's only interest is in finding a place 289

PAGE 296

to put their spent fuel rods. Relations between reservations and state governments are always difficult; New Mexico does better than most. The MRS is not going to help matters. The Negotiator is lying when he tells Governor King that a MRS will not be built over state and/or local opposition; the Negotiator knows it, I know it, I hope the governor knows it. The people in Ruidoso are starting to suspect it. In the context of internal Tribal politics. the effort by the Negotiator and DOE to solve their own internal political problems by placing a MRS site on the Mescelaro reservation fits a familiar pattern. Opponents of Chino are used to a Tribal Council government that is unresponsive to the wishes of the Tribe, that indeed does not even know what the wishes of the Tribe are. The situation is less clear in Montana. In many ways Montana feels like South Dakota. AntiIndian racial prejudice is open and prevalent. Since the Indians have dealt mostly with the federal government and Montana Power and Western Energy in 290

PAGE 297

their lawsuits, the federal policy that encourages development of the coal resources in the West has not had much effect on relations between the Northern Cheyenne and local governments. The Cheyenne do their best to avoid state courts; they know that no Indian will get a fair deal in a Montana state court. What about non-extractive development on the reservations? This kind of economic development has the_potential to give Tribal members steady, longterm employment, without destroying the land. Every community in America, Indian or non-Indian, is looking for that kind of development. The Northern Cheyenne have not done too well. There are a few Tribal enterprises; none of them employ a great deal of people, I get the impression that none of them are particularly profitable. On one level the Mescelaro Apaches have done much better. The Inn of the Mountain Gods is truly impressive. It took some money to build, and it takes in some money. Ski Apache should be immensely profitable. But there does not seem to be an atmo-291

PAGE 298

sphere of success. Tribal members are not confident and prosperous. On the contrary, they say they are dirt poor. Too many of the jobs at Tribal enterprises go to whites, who owe their prosperity and hence their loyalty to Chino. The annual dividend last year was $50. The Mescelaro Apache are courting a MRS not because they have not been successful in non-extractive development, but because the benefits of that development are not distributed equita Lack of employment opportunities and widespread poverty are the levers that are used by private sector energy companies and the federal government to convince Indian nations to accept energy development that may in the long run destroy them as autonomous cultures. Both the Northern Cheyenne and the Mescelaro Apaches have managed to survive conquest and assimilationist pressures, and remain strong, vital cultures. The present threats are perhaps the most serious they have faced. Coal development in Montana and nuclear waste storage in New Mexico could 292

PAGE 299

very well mean the end of these nations as distinct cultural groups. Survival of the Northern Cheyenne and the Mescelaro Apache has been centered around control of a landbase. The history of both Tribes has equally centered around land. Simply put, without unambiguous control of land, indigenous nations as separate cultural entities are doomed. It is just as important for members of the dominant culture to be concerned with these threats as it is for members of the Tribes. The threat to our environment by coal mining and nuclear waste will not be confined by reservation borders. Beyond that, I feel that it is important to the dominant culture that the Indian nations continue to exist and to thrive. In the alternative value systems of these peoples we may be able to find some of the answers to the problems that we face. Finally, in the interests of fairness, we need to acknowledge the debt that we owe to the people who were here when Europeans arrived on this continent. If we cannot learn to deal with different cultures in a 293

PAGE 300

context of respect and equity, we will not survive either. It is time to end this project now, not because the story is over, but because this is as far as I can take it now. Edwin Dahle is still trying to mine coal on the Northern Cheyenne reservation, and the Elders are still trying to have him removed from office. Wendell Chino is moving forward with the MRS, Donnalyn Torres is still trying to protect her people, and the Negotiator is still telling everyone that the process is purely voluntary. We will check with.them later to see what happened. 294

PAGE 301

APPENDIX A A HISTORICAL SUMMARY OF THE NORTHERN CHEYENNE The people now known as the Cheyenne, both Northern and Southern probably originated somewhere in the region between the Great Lakes and Hudson Bay, in what is now the Ontario province of Canada.1 The Cheyenne language is part of the Algonquian family; some of the best known Algonquian-speaking tribes besides the Cheyenne are the Arapaho, Cree, Chippewa, Blackfeet, Ottawa, Sac and Fox, PotawaI 1This summary is mostly taken from Tom Weist, A History of the ::!V"enne People (Billings, Montana: Montana Council for Indian 1977). See also the numerous books and articles by hrge Bird Grinnell; Karl N. Llewellyn and E. Adamson Hoebel, The Way (Norman, Oklahoma: University of Oklahoma Press, 1967); :D[nas B. Marquis, Wooden Legs: A Warrior Who Fought Custer Nebraska: University of Nebraska Press, 1962), and The of Montana (Algonac, Minnessota: Reference Publications, 1j); Mari Sandoz, Cheyenne Autumn (New York: McGraw Hill 1953); J. Powell, Sweet Medicine: The Continuing Role of the Sacred )WS the Sun Dance and The Sacred Buffalo Hat in Northern ?enne Historv, two vols. (Norman, Oklahoma: University of +:thoma Press, 1969), and The Cheyennes, Ma?heo?o's People: A i ical Biblioaraohv (Bloomington, Indiana: Indiana University SpS, 1980); and George A. Dorsey, The Cheyenne Indians: The Sun and The Cheyenne Indians: Ceremonial Organization, two vols. New Mexico: Rio Grande Press, 1971). 295

PAGE 302

tomi, Mohegan, Delaware and Shawnee. According to Weist, the older more traditional Cheyenne recognize four time periods: The Ancient Time, The Time of the Dogs, The Time of the Buffalo, and The Time of the Horse. During the Ancient Time the Cheyenne probably migrated from Ontario through the marshlands between the Lake of the Woods and Lake Superior to present-day northern Minnesota. The Cheyenne name for themselves is Tseehese-stahase, which means 'like us' or 'people like us.' The origin of the name Cheyenne is unclear. In Weist's version it comes from a Dakota word meaning 'red talkers', or people who speak a foreign language. According to the Dakota the Cheyenne were living in northern Minnesota near the headwaters of the Mississippi River when the Dakota arrived there, about 1650. They had domesticated dogs for use as pack animals and developed the travois. This is the 'time of the dogs.' The Cheyenne were still mostly nomadic, living on the animals of the lakes and prairies, and living in wigwams made of branches and reed mats. 296

PAGE 303

This period is the first recorded contact with the European settler culture. Two Frenchmen made a map 1n 1673 that shows them living on the east bank of the Mississippi River in southern Wisconsin. During this period the Cheyenne began to cultivate corn and to live in settled villages at least part of the year as well as starting to use the bow and arrow to hunt game. In 1680 a party of Cheyenne visited the French explorer at Fort Crevecoeur near what is now Peoria Illinois, perhaps in an attempt to obtain guns from the French. This period in the region of the Mississippi headwaters, and the Red, Sheyenne, and Minnesota Rivers is one of continual migration, not only of the Cheyenne, but also of the Dakota, Mississippi, Iowa and Otoe Tribes. They were being forced westward by better armed tribes that were allied either with the French or the English fur-traders. Although Indian tribes probably engaged in warfare among themselves before the advent of the European settler cultures, the introduction of firearms and the encouragement by the French and English to the tribes to take sides in conflict 297

PAGE 304

over fur-trading areas upset what was probably a rough parity between different tribes. As the more eastern tribes simultaneously were displaced and gained access to firearms, they put pressure on the more westerly and more poorly armed tribes, who then migrated into the plains and contested for living space with the peoples already in residence there. This probably explains why the Cheyenne rather quickly moved westward from the Wisconsin River, where the map of 1673 made by Joliet and Franquelin had placed them, to the Minnesota River valley by 1688, to the Sheyenne River valley in present-day North Dakota by 1700. The Cheyennes lived on the Sheyenne River site from about 1700 to about 1790. During this period their culture underwent two dramatic changes that transformed them from woodland and marshlands hunter-gatherers and agriculturalists to the plains Indian culture that they are generally identified with today. These two were the use of the buffalo as the primary food animal and about 1750 the introduction of the horse. The horse made it 298

PAGE 305

possible for them to range much farther over the prairies in search of buffalo. About this time they started using tepees made of buffalo hides for shelter while hunting, although they still lived in permanent earth lodges in the village on the Sheye nne River. The use of the horse also changed their seasonal routine, making it possible for the women, children and old people to remain in camp while the men hunted. About 1790 the village was destroyed by the Chippewas. Some of the Cheyenne had already migrated further westward to the Missouri River, and the destruction of the village forced the rest of the tribe to join them. By 1795 the Cheyenne had moved as far west as the Black Hills in the southwest corner of the present state of South Dakota. They were by this time a fully developed Plains Indian culture, depending for their livelihood on the buffalo. They traded buffalo meat and hides with other tribes for agricultural products and European made goods. During this time they also met and joined together with another band of Indians, the So?taaeo?o. According to legend the 299

PAGE 306

Cheyenne and the So?taaeo?o met on the plains and prepared to fight. During the battle a Cheyenne named Wise Buffalo realized that the people in the other band were calling to each other in a language very similar to their own. A truce was arranged and the two started to travel together. From the So?taaeo?o the combined Tribe received one of their two most sacred objects, the Buffalo Hat. The Buffalo Hat had been brought to the So?ta-aeo?o by Erect Horns. The Buffalo Hat today is with the Northern Cheyenne, and the house of the keeper of the Buffalo Hat is in Birney Village, the most isolated and traditional of the reservation communi-ties.2 The other ceremonial object, or rather ob-jects are the four Sacred Arrows. The Arrows were brought to the Cheyenne by Sweet Medicine, who also brought them their law and many prophecies. The Sacred Arrows are kept with the Southern Cheyenne in Oklahoma, although they have been brought to the Northern Cheyenne reservation for an Arrow ceremony I 2Sherri Deaver, Cultural Impacts to the Northern Cheyenne and Tribes From Powder River I Federal Coal Leasin Billings, n ana: Bureau of Land Management, 1988), 35 .. 300

PAGE 307

as recently as 1975.3 Sweet Medicine received the Arrows and the Cheyenne Law from four Sacred Powers within the mountain that the white people call Bear Butte and the Cheyennes call Noaha-vos, or The Hill Where The People Are Taught. Before his death Sweet Medicine made a number of prophecies that predicted the coming of the white man and the gradual destruction of the Cheyenne. The prophecy that is most frequently cited today is his last one: They will tear up the earth, and at last you wi11 do it with them. When you do, you will become crazy, and forget all that I am now teaching you.4 As the Cheyenne moved west they followed another Algonquian speaking people, the Arapahos. In alliance with the Arapahos they drove the Kiowas and the Kiowa-Apaches from the region. The Cheyenne 1n turn were feeling pressure from the westward migration of the Sioux. The Cheyenne moved farther west, to the area around the Powder, Bighorn, Yellowstone and Wind Rivers in the present states of Montana and 3Bill Tallbull, conversation with author, summer 1991. 4Thomas B. Marquis, The Cheyennes of Montana, 22. 301

PAGE 308

Wyoming, near where their_present reservation is. This was the territory of the Crow. The Cheyenne and the Sioux in alliance drove the Crow east of the Bighorn River, where the present Crow reservation is. By about 1820 the Cheyenne were living in the area west of the Black Hills and east of the Bighorn River that they regard as their 'traditional' hunting grounds. They ranged as far south as the Arkansas River in Colorado to trade for and steal horses fromthe Kiowa and Comanche Tribes and the Spanish settlers in the present states of Colorado and New Mexico. The Cheyenne were involved in the growing trade on the Plains, acting as intermediaries in the exchange of horses and buffalo meat from the southwest for European goods from the northeast. In 1833 Charles and William Bent established their fort on the Arkansas River in what is now southern Colorado. Many Cheyennes and Arapahos moved into the area around the Arkansas River to trade with the Bents, marking the initial separation of both Tribes into Northern and Southern bands. In 1835 another trad302

PAGE 309

ing fort on the South Platte River, Fort ST. Vrain was built to trade with the northern bands. The northern bands also traded at Fort Laramie on the North Platte River in present day Wyoming. The first treaty that the Cheyennes signed with the United States was the Friendship Treaty of 1825, near the Black Hills. This treaty recognized the sovereignty of the United States and its right to regulate all trade. This treaty should be considered invalid on two grounds. First the Cheyenne leaders who concluded the agreement only represented one of ten major bands of the Cheyenne. The Cheyenne had and retain a well developed system of governance and jurisprudence.5 The entire Tribe was governed by a Council of Forty-four, four chiefs from each band and four senior chiefs. This Council would have had to approve any important decision. The Council did not make important decisions without a great deal of discussion among the people. Secondly, it is questionable whether the Cheyenne who 5See Karl N. Llewellyn and E. Adamson Hoebel. 303

PAGE 310

did sign the treaty had the same understanding of its meaning as the signers for the United States. The Cheyenne were generally friendly in their early contacts with the settler culture. In the 1840s the Cheyenne carne into increasing contact with the whites. A portion of the Oregon Trail crossed through their hunting range along the North Platte River, the United States acquired Oregon, in 1846 the Mexican War began which would end with the Unit ed States annexing Texas and California, and in 1849 gold was discovered in California. The results of these events were increasing pressure on the Plains Indians. In 1845 epidemics of measles and whooping cough swept through the Northern Cheyenne, in 1849 cholera spread through both the Northern and South ern Cheyenne. Perhaps one half of the people died. The influx of gold miners passing through disrupted the buffalo migration patterns that all of the Plains Indians depended on. The herds in the south became so small and scattered that the hide trade died out. Fort St. Vrain and Bent's Fort closed. 304

PAGE 311

Fort Laramie was converted into an army garrison to protect emigrants. In 1851 the Cheyenne, along with the Arapaho, Sioux and other tribes agreed to the first treaty of Fort Laramie. The Cheyenne and Arapaho were granted annuities and guaranteed control of land that included much of what is now eastern Colorado, stretching from the Arkansas River on the south to the North Platte River on the north, including the sites of the future cities of Denver and Cheyenne Wyoming. The region north of the North Platte River was assigned to the Sioux, although the Cheyenne and Arapaho retained their hunting rights there. This treaty solved nothing The Platte Road, part of the Oregon Trail ran along the North Platte River, through the middle of the Cheyenne/Arapaho/Sioux hunting range. The Santa Fe Trail ran along the southern boundary of the reserved area. Clashes with emigrants escalated and the emigrants continued to spread disease and disrupt the game migrations. The Pike's Peak gold rush in 1858 led to the establishment of Denver and with305

PAGE 312

in a year 50,000 whites were living on Indian land. To put this into perspective, realize that the entire Cheyenne nation numbered a few thousand people, with perhaps five or six hundred warriors. The influx of gold-seekers along the South Platte River and the establishment of gold camps further divided the Northern and Southern bands of the Cheyenne. In 1861 the Southern Cheyenne signed the treaty of Fort Wise, giving them a small reservation in southeastern Colorado bounded on the north by Sand Creek. The Northern Cheyenne and the Dog Soldiers of the Southern Cheyenne refused to recognize this treaty, and when federal troops were withdrawn from the west during the Civil War, they stepped up their raids along the Platte. It must be emphasized however that the Cheyenne chiefs during this time consistently restrained the young warriors from hostile action against the white settlers. Most of the Southern Cheyenne continued to live a peaceful existence wherever they could on their traditional hunting lands. In 1864 Colonel John M. Chivington led the Colorado Volunteers in what ranks as one of the 306

PAGE 313

most brutal and senseless massacres of the entire conquest period. On November 29 Chivington's forces attacked a friendly camp of Southern Cheyenne at Sand Creek and killed 137 of them, mostly women and children. Sand Creek ended the attempts of the Cheyenne to try to live with the white men in peace. The Cheyenne, Arapaho and the Brule Sioux launched raids along the South Platte River against wagon trains, homesteads and military posts. They attacked Julesburg Colorado and then started moving north to join their kin in the Powder River country of northern Wyoming and southern Montana. Some of the old people of the Southern Cheyenne remained in Colorado. The Northern and Southern Cheyenne had been increasingly separated since 1851. The Southern Cheyenne had felt the full brunt of the invasion by white settlers, while the northern territory was for the most part still unexplored and unmapped by the settler culture. The Southern Cheyenne had become less dependent on hunting for their food and clothing and wore cloth blankets and leggings. The Nort307

PAGE 314

hern Cheyenne still dressed in buffalo robes and practiced a much more traditional lifestyle. Even the language had started to change, with many Northern Cheyennes speaking both Cheyenne and Sioux and incorporating many Siouan and So?taa?e words. Many younger Northern Cheyenne males had never seen the Sacred Arrows, and likewise many Southern Cheyennes had never seen the Sacred Buffalo Hat. With the end of the Civil War in 1865 the federal government had decided to subdue the hostile tribes of the Northern Plains, the Sioux and Arapaho as well as the Cheyenne. Three large columns of troops attempted to converge on the northern tribes, but they were completely ineffective, mostly due to lack of experience in fighting Indians. With the withdrawal of the troops, mostof the Southern Cheyenne returned south. This was the last alliance between the Northern and Southern Cheyenne. In 1869 President Grant established an executive order reservation for the Southern Cheyenne and Southern Arapaho in western Oklahoma. 308

PAGE 315

Gold had been discovered in southwestern Montana and the most direct route led through the middle of the northern territory of the Cheyenne. The government attempted to negotiate passage of the Bozeman Trail, and when the Indians refused to negotiate, they sent Colonel Carrington to open the trail. In Red Cloud's War, the Cheyenne and Sioux provided unexpectedly strong resistance. In the Fetterman Fight near Fort Kearney, the Wagon Box Fight near Fort Reno and the Hayfield Fight near Little Big Horn, the Indians inflicted serious losses on the federal troops. The government decided to negotiate. Although the Indians were becoming increasingly skeptical of any peace treaties with the United States, in 1868 the Fort Laramie Treaty of 1868 was concluded. This treaty is extremely important not only in the history of the Northern Cheyenne but for the Sioux nation as well. It set up the Great Sioux Reservation west of the Missouri River to the South Dakota state line and from the South Dakota-North Dakota state line south past the Black Hills. It 309

PAGE 316

also included a much larger area that included the northeast corner of Wyoming, the Powder River and Tongue River basins in southeast Montana and the southwest corner of North Dakota south of the Missouri River. The current Sioux nation is today laying claim to the Black Hills and other land in the area that is owned by the federal and state governments on the basis of this treaty. The United States Congress voted compensation to the Northern Cheyenne that they accepted after World War II, and have also voted compensation to the Sioux, based on the value of the land in the late 1800s, plus interest. The Sioux have so far refused to accept this compensation and have been surprisingly unified in their demand for the return of the land. In the context of 1868, the Bozeman Trail and the forts built to protect it were abandoned. The uneasy peace obtained by the 1868 treaty lasted until gold was discovered in the Black Hills in 1874. A federal commission attempted to negotiate purchase of the Black Hills with the Cheyenne, Sioux and Arapaho, but the Indians refused. The 310

PAGE 317

federal government, determined to completely pacify the northern Plains Indians, ordered all of the bands that had been living in the Powder River area onto the reservation. They refused. The result was what is probably the most famous Indian battle, Little Big Horn in June of 1876. Much has been written about Little Big Horn, and it is not necessary to repeat it here. The victory of the Indians in that battle only reinforced the determination of the federal government to resolve the 'Indian problem', a problem that was created entirely by the unwillingness of the government to live up to its obligations under the treaty of 1868. After the battle the Indians dispersed throughout their hunting range. During the winter of 1876 their small bands were captured one by one. The last off-reservation band under Two Moon surrendered in April of 1877. The Northern Cheyenne now were separated into two groups. About 350 lived at Fort Keogh in what is now southeastern Montana, immediately north of the present day reservation. The rest, about 972 311

PAGE 318

people were at Red Cloud's agency in South Dakota. The latter group were removed to Oklahoma to live with the Southern Cheyenne. The weather and the food were unsuitable for the northerners, and many of-them became sick. The Cheyenne leaders Morning Star and Little Wolf asked the Indian agent for permission to return horne. This permission was denied and in September of 1878 almost three hundred of the Northern Cheyenne escaped and headed north. They miraculously managed to make it to northwestern Nebraska, where they split into two groups. One group, led by Little Wolf spent the winter camped out. The other group, led by Morning Star was captured and imprisoned at Fort Robinson, near Pine Ridge Agency. There they were imprisoned in the middle of winter without food or fuel until they would agree to return to Oklahoma. This they would not do. The commander then ordered that they were not to receive water. Two days later in desperation the Cheyenne broke out. Of the 146 people originally imprisoned at Fort Robinson, 61 were killed. The survivors, among them Morning Star and his family, 312

PAGE 319

were allowed to remain at the Pine Ridge Agency with the Oglalas. The next spring in February 1879 the band led by Little Wolf surrendered at Fort Keogh, where there was the band under Two Moon. The Northern Cheyennes were now in four widely separated groups. At Fort Keogh there were the two bands led by Little Wold and Two Moon, in Oklahoma were those who stayed behind led by Little Chief and Wild Hog, the survivors of the Fort Robinson Massacre at Pine Ridge led by Morning Star and a band living in Wyoming with the Northern Arapahos. After 1880 the Northern Cheyenne at Fort Keogh began to settle along Lame Deer Creek, Muddy Creek and the Tongue River. The Cheyenne with the Northern Arapaho in Wyoming also moved near them. Due in part to sympathetic Indian agents and army officers in 1884 President Chester A. Arthur established the Tongue River Reservation by executive order. The original reservation was about 370,000 acres and did not include Cheyenne settlements along the Tongue River. In 1900 President McKinley expanded the 313

PAGE 320

reservation to the Tongue River, enlarging the reservation to its present size of about 444,000 acres. Cheyenne families that had settled east of the Tongue were moved onto the reservation, white hornesteads within the reservation were bought out and the last groups of Northern Cheyenne from the Pine Ridge agency and Oklahoma were allowed to rejoin the rest of the Tribe on the Northern Cheyenne Reservation, as it was now known. The present day reservation is the same size. 314

PAGE 321

APPENDIX B RECLAMATION AT ROSEBUD MINE, COLSTRIP, MONTANA Strip mining has one of the most negative public perceptions of any industrial activity, ranging right up there with biological warfare and nuclear accidents. As part of my research in the summer of 1991 I visited with the Reclamation Director of Western Energy's Rosebud mine near Colstrip, a few miles north of the Northern Cheyenne Reservation. I went there with a very skeptical attitude, expecting to find some sort of obviously lame public relations scam. What I found impressed me immensely and con vinced me that it is possible to reclaim mined land to a condition very close to its previous state. The Director of Reclamation is Bill Swartzkopf. Bill has a degree in wildlife biology and has been with Western Energy for eleven and a half years. There are four people in the Reclamation office, three of them wildlife biologists. At 300 to 350 315

PAGE 322

acres a year mined, Western Energy is the largest ground disturber in the western United States. The treatment of this land after the coal has been removed is subject to federal and state mining laws. The Office of Surface Mining gives awards in ten different categories to the best reclamation projects, one of which Western Energy won in 1990. Federal and state reclamation regulations operate in two primary ways to shape reclamation efforts. First the mining company is required to post a substantial bond to ensure that reclamation takes place. This bond is not returned until the federal officials are satisfied that the land has indeed been reclaimed. Second, federal regulations limit the number of consecutive spill pl'ies to two. Spill piles are the overburden that is removed to get access to the coal seam. In each mining tract the first section, or 'strip' of land is placed on top of the earth next to it; each subsequent strip is used to refill the hole from the previous strip. Thus the reclamation process proceeds as the area is mined. 316

PAGE 323

The secret to success of the Western Energy project lies in how the topsoil is .handled. When the overburden is removed, the first step is to remove the top five feet or so. This is the topsoil, rich in nutrients, seeds and bulbs. This soil is set aside while the subsoil and then the coal is removed. After the subsoil from the next strip has been used to fill the strip the topsoil is then spread out over the top. A certain amount of natural reseeding then takes place, and the ground is ready for artificial reseeding. Western Energy reseeds with seven species of uplands grasses and eight species of small seeded plants, all native to the region. IN addition nursery grown shrubs and ponderosa pine are planted. In the early phases of the project fertilizer and irrigation was used, but that was found to be counter productive in the long run. Now all that is done in the way of encouraging the seeded plants to grow is to mulch slopes and to trim away growth that competes with the ponderosa pine seedlings until they have become established. 317

PAGE 324

About 25% of the land in the mining area was agricultural in nature. Western Energy is currently restoring these areas back to farmland. This is much cheaper and faster. There is some question about whether the federal reclamation authorities will allow this and return the bond. They may insist on restoration to native grasslands. The contours of the land are returned to their approximate pre-mining condition. Removing the coal changes the land contours somewhat,having a tendency to even out differences in elevation. This is somewhat offset by the fact that the removed soil takes up more room than it did before disturbance. Before, during and after mining and reclamation water quality is monitored. Water is disrupted during the mining operation, but returns to pre-mining levels after a few years. In this area there are two coal seams, a shallow one and a deep one. Only the shallow one is removed, leaving the deep seam to trap ground water and retain water tables. The land is not returned to its exact condition in terms of the small buttes that are scattered over 318

PAGE 325

southeastern Montana. If the butte is sufficiently small, it is destroyed in the mining process. Big buttes are mined around. We toured the reclamation site with the Director. At that time 3700 acres had been totally reclaimed and several thousand others were in the process. After three years the ground is sufficiently reclaimed that cattle can graze on it. After ten years it is impossible for my admittedly untrained eye to tell any difference between mined and unmined .land. While we toured the area we saw antelope grazing on reclaimed grassland and a coyote catching mice in an alfalfa field. 319

PAGE 326

WORKS CITED BOOKS Ambler, Marjane. Breaking the Iron Bonds: Indian Control of Energy Development. Lawrence, Kansas: University of Kansas Press, 1990. Ashabranner, Brent. Morning Star, Black Sun: The Northern Cheyenne Indians and America's Energy Crisis. New York: Dodd, Mead and Company, 1982. Benjamin, Medea, Joseph Collins, and Michael Scott. No Free Lunch: Food and Revolution in Cuba Today. New York: Food First Book by Grove Press, 1984. Boggs, James P. "The Challenge of Reservation Resource Development: A Northern Cheyenne Instance." In Native Americans and Energy Development II. ed. Joseph G. Jorgensen. Cambridge, Massachusetts: Anthropology Resource Center, 1984 Booth, John A., and Mitchell A. Seligson. eds. Elections and Democracy in Central America. Chapel Hill, North Carolina: University of North Carolina Press, 1989. Breuninger, Evelyn, Elbys Hugar, and Ellen Ann Lathan. Mescelaro Apache Dictionary. Mescelaro, New Mexico: Mescelaro Apache Tribe, 1982. Brown, Dee. Burv Mv Heart at Wounded Knee. New York: Holt, 1970. Churchill, Ward. Marxism and Native Americans. Boston: South End Press, 1983 320

PAGE 327

Clemmer, Richard 0. "Black Mesa and the Hopi.n In Native Americans and Energy Development. ed. Joseph G. Jorgensen. Cambridge, Mass.: Anthropology Resource Center, 1978. Cremony, John C. Life Among the Apaches. Lincoln, Nebraska: University of Nebraska Press, 1983. Debo, Angie. Geronimo: The Man, His Time, His Place. Norman, Oklahoma: University of Oklaho ma Press, 1976. Deese, David A. Nuclear Power and Radioactive Waste. Lexington, Massachusetts: Lexington Books, 1978. Deloria, Vine, Jr. and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983. Dorsey, George A. Organization. Press, 1971. The Cheyenne Indians: Ceremonial Glorieta, New Mexico: Rio Grande The Cheyenne Indians: The Sun Dance. Glorieta, New Mexico: Rio Grande Press, 1971. Harrison, Lawerence. Underdevelooment Is a State of Mind. Lanham, Maryland: Center for International Affairs at Harvard University, 1985. Harrison, Paul. Inside the Third World: The Anatomy of Poverty. New York: Penguin Books, 1979. Jacob, Gerald. Site Unseen: The Politics of Siting a Nuclear Waste Repository. Pittsburgh: Uni versity of Pittsburgh Press, 1990. Johansen, Bruce E. Forgotten Founders: Benjamin Franklin, the Iroquois, and the Rationale for the American Revolution. Ipswich, Massachusetts: Gambit, 1982. 321

PAGE 328

Joseph G. Jorgensen. "Energy, Agriculture, and So cial Science in the American West". in Native Americans and Energy Development, ed. Joseph G. Jorgensen. Cambridge, Mass.: Anthropology Resource Center, 1978. 17. Lappe, Francis Moore, Rachal Schurman, and Kevin Danaher. Betraying the National Interest. New York: Food First Book by Grove Press, 1987. Llewellyn, Karl N., and E. Adamson Hoebel. Cheyenne Way: Conflict and Case Law in tive Jurisprudence. Norman, Oklahoma: sity of Oklahoma Press, 1941. The Primi-UniverMarquis, Thomas B. The Cheyennes of Montana. Algo nac, Minnesota: Reference Publications, 1978. Wooden Legs: A Warrior Who Fought Custer. Lincoln, Nebraska: University of Nebraska Press, 1931. Matthiessen, Peter. In the Soirit of Crazy Horse. New York: Viking, 1983. Melody, Michael E. The Apaches: A Critical Bibliography. Bloomington, Indiana: Indiana Universi ty Press, 1977. O'Brien, Sharon. American Indian Tribal Governments. Norman, Oklahoma: University of Oklahoma Press, 1989. Organization for Economic Co-Operation and Development (OECD). Geological Disposal of Radioactive Waste. Paris: 1984. Ortiz, Roxanne Resources Studies. co, 1980. Dunbar, ed. American Indian Energy and Development, Native American Albuquerque: University of New Mexi-322

PAGE 329

Owens, Nancy J. "Can Tribes Control Energy Development.?" In Native Americans and Energy Development. ed. Joseph G. Jorgensen. Cambridge, Massachusetts: Anthropology Resource Center, 1978. Powell, Peter J. The Cheyennes, Ma?heo?o's People: A Critical Bibliography. Bloomington, Indiana: Indiana University Press, 1980. Sweet Medicine: The Continuing Role of the Sacred Arrows, the Sun Dance, and the Sa cred Buffalo Hat in Northern Cheyenne History. Norman, Oklahoma: University of Oklahoma Press, 1969. Resnikoff, Marvin. The Next Nuclear Gamble: Transportation and Storage of Nuclear Waste. New York: Council on Economic Priorities, 1983. Sale, Kirkpatrick. The Conauest of Paradise: Christopher Columbus and the Columbian Legacy. New York: Knopf, 1990. Sandoz, Mari. Chevenne Autumn. New York: McGraw Hill, 1953. Sonnichsen, C.L. The Mescelaro Apaches. Norman, Oklahoma: University of Oklahoma Press, 1958 Thornton, Russell. American Indian Holocaust and Survival: A Population History Since 1492. Norman, Oklahoma: University of Oklahoma Press, 1987. Toole, K. Ross. The Rape of the Great Plains: Northwest America, Cattle and Coal. Boston: Atlantic Monthly Press Book, Little Brown and Company, 1976. Vogeler, Ingolf, and Anthony De Souza. Dialectics of Third World Development. Totowa, New Jersey: Rowrnan and Allenheld, 1980. 323

PAGE 330

Weatherford, Jack B. Indian Givers: How the Indians of the Americas Transformed the World. New York: Crown Publishers, 1988. Weist, Tom. A History of the Cheyenne People. Billings, Montana: Montana Council for Indian Education, 1977. Williams, Robert A. The American Indian in Western Legal Thought: The Discourses of Conauest. New York: Oxford University Press, 1990. ARTICLES Baker, Buddy. "Karn Says N-Waste Site's a Done Deal." Ruidoso News. November 28, 1991, 1. Berkey, Curtis G. "The U.S. Supreme Court and the Assault on Indian Sovereignty." Without dice. Volume II, Number 2 (1989): 25-37. Braine, Susan, and Rob Stapleton. enne Controversy Continues." February 6, 1990. "Northern CheyLakota Times, "Northern Cheyenne Leadership Facing Tribulations." Lakota Times, January 30, 1990. Chino,Wendell. "Mescelaro Apache Tribe Applies for Study Funding." Albuquerque Journal. October 11, 1991. Diven, Bill. "Mescelaros Seek Leader's Ouster Over Molycorp Pact." AlbuquerqueJournal. June 11, 1989, c3. Dubin, Corin. Country. n nwashington's Skullduggery in Indian Covert Action, Spring 1992, 24. Haddrill, Marilyn. "Chino Would Have Closed Ski Apache.n El Paso Times. January 23, 1992. Houck, Kemp. 0Spent Fuel Storage: State-of-the-Art Barrels, Same Old Rotten Apples." Atoms and 324

PAGE 331

Waste. newsletter by Don't Waste U.S., Washington, D.C. Volume 1, Number 10, May 14, 1991. Don't Waste U.S. is a private non-profit organization that follows nuclear waste issues. Hudgens, Gayle. nApache Revenge.n Atoms and Waste. Volume 1, Number 17, December 11, 1991. nHot Rods and Megabucks: the MRS Saga. II Ruidoso News. November 28, 1991, 1. Hughes, Lance. Nace News. Volume VII, Number 3, May 1992. Jarrell, Frankie. "Chino Tops in Primary Balloting." Ruidoso News. October 7, 1991, 1. "DOE Awards Mescelaros $200,000." Ruidoso News. April 23, 1992, 1. "Feds Approve $100,000 N-Waste Study Grant." Ruidoso News. October 24, 1992, 1. "Governor Says 'no' on Funds, 'no' on NWaste." Ruidoso News. December 16, 1991, 1. "Mescelaro President Makes Plans for a Study Over High-Level N-Waste Storage." Ruidoso News. October 14, 1991, 1. "N-Waste Studies Stalled." Ruidoso News. January 27, 1992, 1. "Ruidoso Bypasses State in Its Efforts to Stop N-Waste Dump." Ruidoso News. June 11, 1992, 1. Kipp, Woody. "Dahle Ouster Fails First Try." Lakota Times. July 2, 1991. nNorthern Cheyennes Seek Support for Their Own School," Lakota Times. August 7, 1991, A14. 325

PAGE 332

"Let Them Eat Pollution." Economist, February 8-14, 1992, 66. Little Eagle, Avis. Nuclear Waste." "Tribes Meet to Discuss Role of Lakota Times. April 18, 1992. Mescelaro Apache Tribe. "MRS Study Applicants." MRS Newsletter, June 1992, Milstein, Michael. "Clean Air Act Unleashes a Battle Over Western Coal." High Country News. July 13, 1992, 26. Petty I Bill. n Reader." Plans to Store Nuclear Waste Alarm Ruidoso News. October 24, 1991, lb. Radelat, Ana. "Trading Away Their Future: Will the Mescelaro Apaches Share Their Land with Radioactive Waste?" Public Citizen. January/February, 1992, 16. Stallings, Charles. "Chino Defends Study." Ruidoso News. October 21, 1991, 1. "Chino Wins by Lands 1 ide. Ruidoso News November 7, 1991, 1. "Gambling in Trouble." Ruidoso News. May 4, 1992, 1. "Guv Turns Down Heat on Gambling." Ruidoso News. May 14, 1992, 3a .. Stallings, Dianne. Over N-Waste." 1. "Angry Citizens Lash out in Fear Ruidoso News, January 9, 1992, "Chino Sends for Protest Petitions." Ruidoso News. January 27, 1992, 1. "Chino Warns Picketers to Stay Off Indian Lands." Ruidoso News. January 23, 1992, 1. 326

PAGE 333

"Commissioners Hear Plans for N..:waste Storage Feasibility Study." Ruidoso News, October 17, 1991, 1. "Commission Opposes a Nuclear Waste Dump in Lincoln County." Ruidoso News, December 19, 1991. npicketers Protest MRS." Ruidoso News. January 20, 1992, 1. Stapleton, Rob. "EPA, Northern Cheyennes Work Together in Landmark Waste Project." Lakota Times, February 13, 1990. "New Cheyenne Council a Needed Change." Lakota Times. November 13, 1990. "New Cheyenne Hall Rising From Ashes." Lakota Times. July 31, 1990. Taliman, Valerie. "The Toxic Waste of Indian Lives." Covert Action. Number 40, Spring 1992, 16. Thackery, Lorna. "Cheyenne Seek Part of Royalties." Billings Gazette. April, 3, 1991. "State, Indians OK Water Agreement." Billings Gazette. June 12, 1991. "Tribal Election Officer Says Election Papers Filed Incorrectly." Alamogordo Daily News. Septem ber 26, 1989, 11. Weinberg, John. MRS Watch. 1992. "J. Underwood Resolution Passed." Volume 1, Number 7, February 21, UNITED STATES GOVERNMENT DOCUMENTS Boggs, James P. "The Northern Cheyenne Coal Sales, 1966 to 1973. 11 Enerov Resources Development: Implications for Women and Minorities in the 327

PAGE 334

Intermountain West. Washington, D.C.: United States Commission on Civil Rights, 1978. Bureau of Land Management, Department of the Interior. Economic, Social and Cultural Supplement, Powder River I Regional EIS, Draft. Washington, D.C.: GPO, 1989. Economic, Social and Cultural Supplement, Powder River I Regional EIS, Final. Washington, D.C.: GPO, 1990. Chestnut, Steven H. 11Coal Development on the Northern Cheyenne Reservation ... Energy Resource Development: Implications for Women and Minorities in the Intermountain West. Washington, D.C.: United States Commission on Civil Rights, 1978. Deaver, Sherri and Bill Tallbull. Cultural Impacts to the Northern Cheyenne and Crow Tribes from Powder River I Federal Coal Leasing. Billings, Montana: Bureau of Land Management, 1988. Department of Energy. 11A Monitored Retrievable Storage Facility: Technical Background Information ... DOE/rw-0311P. Washington, D.C.: DOE, 1991. "Spent Fuel Storage at the Monitored Retrievable Storage Facility ... DOE/rw-0324P. Washington, D.C.: DOE, 1991. Feeney, Mara, Cynthia Kroll, Elin Quigley, Carlos Villalva, Joanne Sooktis, and Ted Risingsun. Social and Economic Effects of Coal Development on the Northern Cheyenne Tribe. Billings, Montana: Bureau of Land Management, 1986. General Accounting Office. Development of Casks for Transporting Spent Fuel Needs Modification. Washington, D.C.: GAO, 1992. 328

PAGE 335

Operation of Monitored Retrievable Stor age Facility Is Unlikely by 1998. Washington, D.C.: GAO, 1991. Weak DOE Contract Management Invited TRUPACT-II Setbacks. Washington, D.C.: GAO, 1992. Leroy, David H. Moving Beyond the Headlines: Negotiated Nuclear Facility Siting in the 1990s. speech at High Level Radioactive Waste Management Conference Exposition, Las Vegas, Nevada, April 30, 1991. 1991 Annual Report to Congress. Boise, Idaho: Office of the United States Nuclear Waste Negotiator, 1992. Monitored Retrievable Storage Review Commission. Nuclear Waste: Is There a Need For Federal Interim Storage? Washington, D.C.: Government Printing Office, 1989. Northern Cheyenne Allotment Act. June 3, 1926, 44 Statute 690. Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976). Office of the United States Nuclear Negotiator. Information Sourcebook on the Management of Spent Fuel and High-LevelNuclear Waste. Boise, Idaho. 1991. Public Law 97-425. Nuclear Waste Policy Act of 1982. Public Law 100-203. Nuclear Waste Policy Amendments of 1987. Sailor, V.L., K.R. Perkins, J. R. Weeks, and H. R. Connell. Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82. Washington, D.C.: Nuclear Regulatory Commission, 1987. 329

PAGE 336

Tennessee Planning Office. "MRS: A Temporary Solu tion for Nuclear Waste Disposal Is not Needed in Anybody' s Backyard." pamphlet issued by Tennessee Planning Office, 1987. U.S. Bureau of Reclamation, u.s. Department of the Interior. North Central Power Study. Billings, Montana: Bureau of Reclamation, October 1971. United States Constitution, Article I, Section 8, Clause 18. U.S.S.C.,l831, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25. INTERVIEWS Boggs, James. Anthropologist, University of Montana, Missoula, Montana. Phone interview with au July 12, 1991. Brady, Steve. Cqordinator of Elders Task Force. Phone interview with author. October 15, 1991. Cattrell, Ed. Academic Administrator, Dull Knife Memorial College. Interview with author. Lame Deer, Montana. June 19, 1991. Dahle, Edwin. Tribal President, Northern Cheyenne Tribe. Interview with author. Lame Deer, Montana. June 24, 1991. Dale, Dave. Interview with author. Ruidoso, New Mexico. June 23, 1992. Davis, Tony. Phone interview with author. June 1, 1992. Hudson, Miller. Interview with author. Mescelaro, New Mexico. June 25, 1992. Hughes, Ed. Coordinator, Bureau of Land Management Regional Office, Billings, Montana. Phone interviews with author. August 9, 1991, and October 8, 1991. 330

PAGE 337

Hughes, Lance. Director, .Native Americans for a Clean Environment. Phone interview with author. June 1, 1992. Limberhand, Dennis. Manager, Employee and Community Relations, Colstrip Project Division, Montana Power Company. Interview with author. Colstrip, Montana. June 24, 1991. Phone interview with author August 20, 1991. Lowe, Nancy. Phone interview with author. July 13, 1992. Machler, Mike. Geo Research, Billings Montana. Phone interview with author. October 10, 1991. Magoosh, Francine. Interview with author. Apache Pass, New Mexico. June 24, 1992. Morrison, Richard. Compliance Officer, Northern Cheyenne TERO Office. Interview with author. Lame Deer, Montana. June 19, 1991. Pal, Ray. Phone interview with author. April 27, 1992. Petty, Bill. Phone interview with author. May 28, 1992. Prairiebear, Tony. Administrative Assistant to Edwin Dahle. Interview with author. Lame Deer, Montana. June 24, 1991. Shoulderblade, Windy. Administrator Northern Cheyenne TERO Office. Interview with author. Lame Deer, Montana. June 19, 1991. Small, Gail. Native Action, Lame Deer, Montana, Interview with author. Lame Deer, Montana. July 9, 1991. Swartzkopf, Bill. Reclamation Director; Western Energy, Rosebud Mine, Colstrip Montana. Inter-331

PAGE 338

view with author. Colstrip, Montana. July 8, 1991. Tallbull, Bill. Interview with author. Lame Deer, Montana. July 10, 1991. Torres, Donnalyn. Interview with author. Mescelaro, New Mexico. June 25, 1992. Weinberg, John. Interview with author. Ruidoso Downs, New Mexico. June 23, 1992. Whiteman, Jason, Environmental Affairs Officer, Northern Cheyenne Tribe. Interview with author. Lame Deer, Montana. July 9, 1991. Phone interview with author. October 22, 1991. Whitewolf, Adeline. Chairperson, Economic Development Planning Committee Office, Northern Cheyenne Tribe .. Interview with author. Crow Agency, Montana. June 20, 1991. Wilson, Calvin. Tribal Attorney, Northern Cheyenne Tribe. Interview with author. Lame Deer, Montana. June 19, 1991. Phone interview with. author. August 5, 1991. MISCELLANEOUS Chino, Wendell. letter to David H. Leroy, October 11, 1991. Council of Energy Resource Tribes and the Mescelaro Apache Tribe. "Dialogue on Tribal Perceptions of the Ethical and Moral Bases of Nuclear Energy and Radioactive Waste Development." April 6-8, 1992, unpublished agenda. Geronimo, Harlyn. letter to Mescelaro Apache Tribe, November 3, 1989. Geronimo, Joseph. letter to Mescelaro Election Board, September 21, 1989. 332

PAGE 339

Hoskins, Raymond E. Comments on DOE's September 1991 Draft Mission Plan Amendment Pertaining to Monitored Retrievable Storage. University of Tennessee, Waste Management, Research, and Education Institute, 1991. Christopher McLead. Sacrifice Area. The Four Corners: A National Bullfrog Films. 1983. video. Means, Russell. The True Revolution for the Elders, Ancestors, Treaties and Youth, campaign platform for Presidency of the Oglala Sioux Tribe, document transcribed by author. Also available at Fourth World Center, University of Colorado at Denver, Dr. Glenn Morris, Director. Mescelaro Apache Reservation, General Information. brochure issued by Mescelaro Apache Tribal Government, no date, no author. Northern Cheyenne Reservation, a booklet prepared by the Northern Cheyenne Planning Office, November, 1981, and revised by Adeline Whitewolf, July 10, 1990. Reed, James B, and Mara A. Cohen. Jurisdiction Over Nuclear Waste Transportation on Indian Lands: State-Tribal Relationships. Denver: National Conference of State Legislatures, 1991. Savilla, Elmar M. "White Trash: The Poisoning of Indian Country." unpublished manuscript. Tribal Concerns. letter, October 3, 1989. Obtained by the author from Tribal Concerns. U.S. Council for Energy Awareness. "Monitored Retrievable Storage of Used Nuclear Power Plant Fuel." Washington, D.C.: USCEA, 1991. 333