Environmental Justice, Indigenous People, and the Law
I chose this article because it emphasizes the limited protections afforded to Indigenous communities under federal environmental laws. It’s an injustice to how indigenous people are excluded from environmental decision-making processes, making it difficult for them to safeguard their land and culture from pollution when they were the stewards of the land in the first place.
Indigenous communities are disproportionately exposed to environmental contaminants based on where they live and the cultural activities that put them in close contact with their environment. However, federal and state laws often make it easier for extractive and polluting enterprises to access tribal lands. Federal legislation and jurisprudence applicable to tribal lands are distinct from rules that apply to nontribal lands, and are typically inconsistent and inequitable. From Chief Justice John Marshall’s 1831 arbitrary definition of tribes as “domestic dependent nations” (Cherokee Nation v. State of Georgia 1831), to a 1985 Supreme Court decision that the Western Shoshone people lost title to their land because of “gradual encroachment” by the federal government (U.S. v. Dann 1985) (a concept that appears nowhere in the law before or since), federal courts and bureaucracies have long wielded language to constrain and derogate tribal peoples according to the political will of the day.
Because of these structural inequities, tribal jurisdictions are attractive to corporations seeking a lesser degree of environmental regulation, oversight, and enforcement than are imposed by state governments. Moreover, due to current social and structural inequalities, indigenous communities seeking environmental justice often experience barriers to their participation in prescribed environmental decision-making processes (Cole and Foster 2001).
Litigation under federal environmental laws and federal Indian law is fraught with challenges. Federal Indian law, a body of judge-made law arising mostly from litigation primarily before the United States Supreme Court, overwhelmingly denies environmental and cultural rights to Native American people. In addition, federal environmental legislation rarely recognizes environmental justice as a cause for action. Even when activists achieve victories in the courts, legislation and administrative agency rule makings can often undo years of environmental justice litigation. For these reasons, it is essential to develop policies that would better protect AI/AN communities from pollution, rather than leaving the matter to courts.
This article explores the environmental injustices Indigenous communities face due to inequitable federal and state laws. Therefore making it easier for corporations, or the government to extract resources from the native land. In turn, these decisions have weakened tribal sovereignty, and their identity. Essentially, it has enabling environmental exploitation of Native lands with fewer regulations than non-tribal areas.
In the context of how this relates to land acknowledgments and the history of the land I’m investigating as my topic. This article subtly underscores the need for more than symbolic gestures. It calls for legislative reform that will address the ongoing exploitation of Native American land. Acknowledging the land’s history is the first step, but genuine efforts to protect these communities from environmental harm is essential to truly honor their identity and heritage.
Source: Hoover E, Cook K, Plain R, Sanchez K, Waghiyi V, Miller P, Dufault R, Sislin C, Carpenter DO. Indigenous peoples of North America: environmental exposures and reproductive justice. Environ Health Perspect. 2012 Dec;120(12):1645-9. doi: 10.1289/ehp.1205422. Epub 2012 Aug 16. PMID: 22899635; PMCID: PMC3548285. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3548285/#:~:text=Indigenous%20communities%20are%20disproportionately%20exposed,enterprises%20to%20access%20tribal%20lands.
Morabito, C. (2021, July 3). How federally guaranteed health care for Native Americans works in the U.S. CNBC. https://www.cnbc.com/2021/07/03/native-american-health-care-how-the-us-indian-health-service-works.html
