Preview: Tribal Sovereignty and Resource Destiny: Hydro Resources, Inc., v. U.S. EPA

     

Andrew Brooks

In 2005, after suffering decades of death and disease from exposure to uranium, the Navajo Nation banned uranium mining and processing on Navajo lands. Before the Navajo enacted the ban, Hydro Resources, a uranium mining company, attempted to mine its land in New Mexico, which borders land held in trust by the United States for the Navajo. Hydro Resources proposed to mine this land by injecting chemicals into an underground aquifer that the Navajo use as a drinking water source. Due to the impact on the aquifer, Hydro Resources needed a permit from the proper authority. The EPA grants these permits for mines on “Indian lands,” and the State of New Mexico grants them for other mines in New Mexico. At issue, therefore, was whether Hydro Resources’ land constituted “Indian land.”

Hydro Resources, Inc. v. U.S. EPA correctly applied Supreme Court precedent to hold that Hydro Resources’ land did not constitute a “dependent Indian communit[y]” under 18 U.S.C. 1151(b). However, the holding ignores the word “communities” in the statute, thereby contradicting the legislative intent of avoiding checkerboard jurisdiction and encroaching upon tribal sovereignty. Worse, the holding may result in more tangible impacts on the Navajo people.

 As a result of the Hydro Resources decision, the State of New Mexico—neither the Navajo nor the EPA—has the authority to grant the Hydro Resources mining permit. To receive the permit, Hydro Resources will have to show that, once its mining operations are complete, it will restore the groundwater’s quality to pre-mining levels or better. Importantly, the Nuclear Regulatory Commission, the agency that regulates the type of uranium mining involved in this case, admitted recently that “restoration to backgroundwater quality . . . has proven to be not practically achievable.” This admission suggests the potential for contamination of a Navajo drinking water source, directly contradicting the Navajo’s purpose for banning uranium mining.

The definition of “Indian lands” should be revised to refer to areas that are occupied or substantially surrounded by tribal lands. Courts should apply a two-part test that analyzes the extent to which the federal government (1) has set aside and (2) controls the particular area. Such a definition would both limit checkerboard jurisdiction and, more importantly, allow tribes to retain the power to control the destiny of their valuable resources.

For further explanation and analysis, see Andrew Brooks, Tribal Sovereignty and Resource Destiny: Hydro Resources, Inc., v. U.S. EPA, 88 Denv. U. L. Rev. __ (forthcoming 2011).