The National Environmental Policy Act of 1969 (NEPA) is policy that is somewhat encouraging towards repatriation (especially of land), but also appears to wield more power than it truly does. NEPA requires those making decisions on permit applications, adopting federal land management actions and constructing highways or other publicly-owned facilities (epa.gov/nepa) to do environmental assessments (EAs), and environmental impact statements (EISs), evaluating the environmental, social, historic, and economic impacts (so, evaluation of the effect on tribes is included in the act)(epa.gov/nepa). This is where the act falls short, however, the evaluation is all that is required – the ability to move forward with the project is not hindered by NEPA in any other way. NEPA is merely an assessment to create informed opinions, and puts the burden of proof on American Indians. The provisions in Executive Order 129898 seek to help rectify this, by making environmental justice, especially that affecting, “’minority populations and low-income populations,’ including tribal populations “(epa.gov/environmentaljustice). Again, though, this Executive Order does not provide enforcement of doing the right thing when faced with EISs and EAs that suggest alternate construction plans – often with American Indians paying the brunt of businesses’/the government’s indifference.
A current example of this is the Dakota Access Pipeline – though the EIS shows the huge potential environmental harm to the Missouri river, as well as harm to the sacred and cultural sites of the Standing Rock Sioux, the Army Corps of Engineers has decided to pursue the project anyway (in the face of the land in question being sold to Dakota Access without the tribe’s consultation – directly in breach of environmental law)(The Dakota Access Pipeline). Unfortunately, under NEPA it seems that the policy of asking for forgiveness rather than permission seems to be the rule of thumb in concerns to American Indian claims. Though as easy as it is to view NEPA’s failures, it is still, “the quintessential ‘look before you leap’ requirement” (Throwing Precaution to the Wind) of US environmental law. NEPA Success Stories shows just how positive an impact the act can have. Though one of the success stories involved the Confederated Tribes of the Umatilla Indian Reservation ‘agreeing to disagree’ with the Department of Energy over the interpretation of treaty rights (so, ignoring the tribe’s wishes), other examples showed successful cooperation between tribes and other interested parties, all as a result of NEPA’s statutes. On its own, NEPA does very little to help with the goal of repatriation and reclamation, but it does serve as a stepping stone in the right direction.
Citations + Further Readings
Official NEPA site links:
https://www.epa.gov/environmentaljustice/environmental-justice-and-national-environmental-policy-act
https://www.epa.gov/nepa/what-national-environmental-policy-act
https://www.epa.gov/nepa/national-environmental-policy-act-review-process
Existing Federal Law and the Protection of Sacred Sites: Possibilities and Limitations
The Dakota Access Pipeline: A Legal Environmental Justice Perspective
It’s pretty wild to me that such “look before you leap” policies exist without any sort of accountability, although since I’m Canadian I’m not familiar with NEPA’s policy or implementation. The Standing Rock Pipeline is a tragic example of putting corporate interest ahead of human rights and heritage interests. It was always my understanding based on things like archaeology textbooks that CRM had some sort of veto power in terms of development, but I suppose not. Lack of indigenous consultation is one of the most pervasive forms of modern colonialism. Especially in cases like Standing Rock where the issue is not only heritage but health, First Nations should at least be allowed that veto power if governmental organisations are not.