URANIUM AND COAL MINING
ON THE NAVAJO RESERVATION
Debra Weidon
November 23, 1982
00556
URANIUM AND COAL MINING ON THE NAVAJO RESERVATION:
Working Toward Self-Sufficiency While Protecting
the Traditional Navajo Form of Life
"The nights and days were long before it came time for
us to go to our homes. The day before we were to start
we went a little way towards home, because we were so
anxious to start. We came back and the Americans gave
us a little stock and we thanked them for that. We
told the drivers to whip the mules, we were in such a
hurry. When we saw the top of the mountain from
Albuquerque we wondered if it was our mountain, and
we felt like talking to the ground, we loved it so,
and some of the old men and women cried with joy when
they reached their homes."
Manuelito of the Navajos^
The traditional Navajo form of life is deeply rooted in the
land. Approximately 1,000 years ago, the Navajo migrated south
from northwestern Canada, arriving in northern New Mexico in
about llfOO. By 15^-0, the Navajo had acquired notable agricultural
skills, and after the Spaniards introduced cattle, sheep, and
horses into the area, the Navajo developed an economy based on
livestock.^ Although centuries of intensive grazing and resultant
depletion of pasture along with the Bureau of Indian Affairs'
policy of forcible livestock reduction have significantly
de-emphasized the Navajo livestock economy,^ the traditional
lifestyle has survived in certain isolated areas of the Navajo
Reservation. Larry Anderson, a spokesman for the American Indian
Movement, described this cultural subsistence:
The Navajo who live at Big Mountain are the most traditional and culturally intact of their large tribe. They
have spent their lives herding sheep in one of the most
isolated areas of the reservation. They don't speak
00557
or understand English, ... they don't understand the
white man's laws. The only law they understand is
the natural law. The prayers, the ceremonies, the
songs; those are the laws that the people of Big
Mountain live by.^
Today, the traditional economy has been virtually replaced
by wage employment, 67% of which is dependent on the public
sector, as compared with 11+% public employment nationally.5
Although President Reagan indicated in a 1980 interview that
his administration would not alter tribal eligibility for
General Revenue Sharing Funds and v/ould continue to honor the
government to government economic assistance relationship that
exists according to law,^ the recent cuts in federal spending,
especially with respect to public employment and social welfare
service programs, should not be discounted as a potential threat
to an already suffering Navajo economy. According to a 1982
position statement by the Navajo Tribe's Division of Community
Development, "the incidence of poverty is diversified and
profound in all areas of the Navajo Reservation,Statistics
from the U.S. Census Bureau, the Bureau of Indian Affairs, and
the Arizona Department of Economic Security show that the
annual per capita income of the Navajo was $1,700 in 1981,
Q
compared with a national per capita income of S9»000 in 1981.
Although, as this comment will illustrate, Navajo leaders have
addressed tribal economic problems and taken significant steps
toward their resolution in the spirit of self reliance, according
to Peterson Zah, the newly elected Tribal Chairman, self sufficiency
"is many years in the future." 10
The road to tribal self-sufficiency encompasses economic
development in many different areas with interaction between
those sectors so that tribal members benefit not only from
goods, services, and employment, but also from a more desirable
economic relationship with outside communities.^ In addition,
ownership of businesses by tribal members and tribal control
over reservation resources helps to insure that the quality
of life is determined by the tribe rather than outsiders.
00358
As one aspect of tribal economic development, the mining
of uranium and coal is addressed by this study. In the past,
effective utilization of these resources has been impeded by
the tribe's legal and political status, by governmental
restrictions with respect to alienation of Indian lands, by
outside interests which favor exploitation of tribal energy
resources, and by the tribe's lack of expertise in developing
their own resources. Although a passive tribal role is
obviously detrimental from a financial standpoint, of equal
importance is the need to protect tribal members from the
inherent dangers of coal and uranium mining. The nature of
uranium and coal mining presents serious threats to both the
health of the individual Navajo and to the Navajo environment.
In recent years, tribal members have adopted a more aggressive
attitude toward tribal control over energy resources, recognizing
a need to protect the Navajo land and traditional lifestyle
and the importance of utilizing nonrenewable resources to aid
in the establishment of an economic base for future economic
development. Although traditional Navajos and modern Navajos
are somewhat divided with respect to the emphasis that protection
and progress should be given,-*-2 the Tribal Council system seems
to provide for a fusion of these v a l u e s , W i t h the objectives
of both factions in mind, this comment focuses on the transition
from a passive role of energy resource lessor to a position of
effective control over the development of tribal resources and
addresses the impediments that have been overcome by the Navajo
and the problems that still exist.
00539
History of Energy Resource Leasing on Indian Lands
Congress was given exclusive authority over Indian affairs
by Article I, Section 8 of the U.S. Constitution,1^ Pursuant
to these powers, Congress created the Bureau of Indian Affairs
(BIA), which was transferred from the Department of War to
the Department of Interior in 18^9.^ Today, the Secretary of
Interior is responsible for administering federal laws governing
1r
Indians D in accordance with a recognized trust relationship
between the federal government and Indian tribes1? and an
officially recognized policy of encouraging Indian self-determination.18
In spite of "recognized policy," Indian efforts to develop
their energy resources have been obstructed by control and
supervision of the federal government through the BIA, 'vVhen
the first authorization for mineral development on Indian lands
was enacted by Congress,Indians were "relegated to a passive
role as merely the recipients of royalties negotiated between
the BIA and the producers," 20 ^he underlying principle in
support of governmental control over leasing is the concept
of inalienability of Indian lands without government approval.
In Johnson v„ M ' l n t o s h . ^ l Chief Justice Marshall described the
federal government's interest in Indian lands as one of exclusive
title which denied Indians the right to dispose of their lands.
This restriction on the Indian's right to sell or convey their
lands v/as based on the federal government's "right of discovery"
pp
and "title by conquest." The Nonintercourse Act^ is a formal
pronouncement by Congress of this restriction on sales and
leases of Indian lands withoug federal consent, enacted in the
spirit of protecting the Indian "ward" from unfair treatment
in land transactions,2 3
In 1938, Congress incorporated piecemeal Indian mineral
leasing legislation into a broad leasing statute which provides
that unallotted lands (with specified exceptions) may be leased
for mining purposes by authority of the tribal spokesman or
council and with the approval of the Secretary of Interior,^
Leasing of allotted lands for mineral purposes is also subject
to Department of Interior c o n s e n t . ' p h e Omnibus Tribal Leasing
00560
Act of 19692^ outlines environmental protection guidelines to
be considered when the BIA approves mining permits. However,
as this study illustrates, the Omnibus Act is not an effective
means of protecting Indian land from the environmental problems
associated with uranium mining.
Today, mineral leasing on Indian lands is governed by
these Acts of Congress and by rules and regulations promulgated
by the BIA pursuant to their delegated authority. In general,
a system of competitive leasing is utilized with Secretary of
Interior approval and monitoring of mineral leases taking
precedence over Indian i n v o l v e m e n t . U n d e r a standard BIA lease,
the tribe is unable to negotiate terms of the agreement and
consequently has no voice in the amount of compensation, the
manner of exploration or extraction, the rate of operation, the
control of pollution, or the restoration of leased lands. The
development of resources is left to the lessee and the government
authorities who may not be sympathetic to tribal policy for
protection of the traditional values and lifestyles from the
detrimental effects of resource development.
The present leasing system has been criticized by both
Indians and non-Indians as unresponsive to the needs of the
tribes in their attempts to take on greater responsibility
for their own economic development. In 1968, President Johnson
proposed legislation which would have helped tribes abandon
their passive roles and, as a result, enabled them to move closer
to self-determination. The proposed legislation's statement
of purpose recognized the impediments that Indian's face in
their attempts to participate in the development of their
resources:
While the full range of Federal programs is being
increasingly applied to Indian reservations, and
while State and local governments are being encouraged
to provide services to Indian citizens, economic development has been impeded by lack of free access to the
private financial and credit markets of the Nation
and by limitations placed upon Indians which prevent
them from managing their lands and resources.
00561
The Need for Responsive Tribal Control Over Mineral Leasing
Perhaps the best means of illustrating the importance of
responsive tribal control over energy resource development is
by addressing mining-related problems that have occurred on
the Navajo Reservation. Although the problems are interrelated
and affect, as a whole, the tribe's ability to achieve selfsufficiency while protecting cultural values, analysis of these
effects is facilitated by dividing them into four categories:
economic, cultural, environmental, and health-related.
Economic Problems
In a 1979 article by three term Navajo Chairman, Peter
McDonald, the financial benefits of mineral leasing are described
as meager:
^U]nder BIA approved leases the Navajos are still receiving
between 15 and 37 cents for each ton of coal that is mined.
The going rate off Indian reservations is ftl.50 and $2.00
per ton...Ca]nd the figures for other Indian resources
aren't any more heartening: an average 1/f percent of actual
value for natural gas, 15 percent for oil and 20.8 percent
for uranium. In exchange for that meager return, the
tribes forfeited virtually all control over the speed,
manner and impact of the mining of their r e s o u r c e s .
In the past, the tribe's dependency on these mineral revenues
compounded the problem, Navajo mineral development began about
sixty years ago, and funds from the various mineral leases were
used to establish and maintain Navajo administration and services.-'
Consequently, refusal to renew existing leases or to approve new
leases was once viewed as a potential threat to the social service
structure within the Navajo tribe.^
Cultural Problems
After a nine day tour of the energy resource states of
the Southwest, Marti Roberge of the National Lawyer's Guild
1980 Energy Delegation described the effects of mineral development
00562
on Indian lands in New Mexico as "near total devastation of the
land and the environment, the culture and the soveriegnty of
the residents, and a legacy of sickness and death..." 32
Members of the American Indian Movement (AIM) also believe
that mineral development is destructive to the traditional
Navajo life style in that it "errodes the traditional relationship
of Indians to the land." 33 Therefore, members of AIM oppose
all mining on Indian lands. Peter McDonald, Chairman of the
Council on Energy Resource Tribes, does not feel that Navajo
culture is necessarily a physical relationship with the land.
Rather, he believes "[c)ulture is in the soul, in the spirit." 3^
Although personal viewpoints regarding the impact of
resource development on Navajo culture seem to fall within the
extremes, an inverse relationship or lack of relationship
between increasing mineral development and cultural degradation
is difficult to document. It seems likely, however, that pollution
and disfigurement of the land would have significant impact on
a land-based culture.
A controversial situation which illustrates the impact
that mineral development could have on the traditional Navajo
form of life involves the Navajo Hopi Land Settlement Act of
197k
which directs the removal of 9,500 Navajo and 100 Hopi
from their traditional homeland, an area which is both the
heart of the Navajo sacred lands and the site of a 22 billion
acre coal field.36 i n 1882, approximately £(.,000 square miles
within the Arizona territory was set aside for the Hopi and
any other Indians that the Secretary of Interior chose to locate
there.37 Navajo and Paiute Indians already occupied the newly
created reservation, but the tribes coexisted relatively peacefully.
Years later,, the Hopi Tribal Council persuaded the BIA to set
aside a portion of the reservation for exclusive use of the
Hopi, The remaining area was later designated as a joint use
area for the Navajo and Hopi.38 An alleged dispute between
the Navajo and Hopi developed over the joint use area, prompting
Congress to pass the Navajo Hopi Land Settlement Act which divided
the joint use area and required the Navajo and Hopi individuals
to move to their respective sides. The traditional Navajo are
00563
being forced to relocate in border towns due to unavailability
of suitable reservation l a n d s , 3 9 The impact on their traditional
lifestyle has been significant. Reports indicate that the
Navajo relocatees have experienced severe mental and emotional
problems, serious financial difficulties, inability to understand
basic social responsibilities, and inability to perform religious
ceremonies.
The controversy surrounds the motives of the BIA and the
Hopi Tribal Council, Officials claim that the Land Settlement
Act is the most feasible solution to a long term land dispute
between the Navajo and the Ilopi, Traditional Navajo and
traditional Hopi claim that there is no dispute between the
life long residents of the joint use area, and that the actions
taken to relocate residents is a scheme by resource development
interests to clear the area for mining.^ In any event, the
situation illustrates the potential impact that uncontrolled
mineral development could have on a land-based Indian culture,
Environmental Problems
Because stripmining is the common means of extracting coal
on the Navajo reservation, the most significant problem associated
with coal mining is damage to the land's surface. Effective
reclamation of stripmining sites on the Navajo Reservation has
been important to tribal members. In National Indian Youth
Council v, Andrus.^2 the Navajo plaintiffs appealed a I98O
Department of Interior "finding of no significant impact" with
respect to a Zf0,286 acre stripmining coal lease located on the
Burnham Chapter of the Reservation. The lease was negotiated
by the Navajo tribe and executed on August 26, 1976. On August
3 1 , 1977, the Secretary of Interior approved the lease based on
two final environmental statements filed by the BIA. The plaintiffs
claimed, in part, that the final environmental statements were
inadequate in that they failed to adequately discuss the potential
for unsuccessful land reclamation and failed to adequately
investigate the significance of archeological and paleontological
u
resources on the leasehold.^ Experimental reclamation plots
have been established at the Utah International Mine, but the
00564
effectiveness of the techniques being used to reclaim the land
is yet to be determined.
Surface mining of "yellow cake" is not common on the
Navajo Reservation,^ but the underground mining techniques
employed are still characterized by important environmental
problems. During the milling process when "yellow cake" is
processed, large quantities of waste are produced. The result
is that 0,1% of the ore mined produces uranium, leaving large
piles of waste (mill tailings) which contain 85% of the original
radioactivity,^^ Thorium, one of the radioactive minerals
present in the tailings, takes about if00,000 years to decay to
low level radiation form. The decay process results in the
production of other elements, including a radioactive gas, radon,
which is released into the atmosphere,^ In the past, the
Atomic Energy Commission did not recognize mill tailings as
hazardous, and the waste was piled above ground in large clay
lined ponds with surrounding clay dikes,
In 1979, over 100
million gallons of radioactive water and two million pounds
of toxic solids contaminated a river in New Mexico when a major
dam break occurred at a mill tailings pond.
Today, the
Environmental Protection Agency states that mill tailings may
be the most dangerous segment of the entire nuclear fuel cycle.^
Other problems associated with mill tailings is the risk
of water runoff, particle loss to the wind, and resultant
contamination of plants and animals. When mill tailings are
minimized by in situ mining (i.e., chemical dissolution of
uranium within the deposit and pumping to the surface through
extraction wells^®), groundwater contamination is still a risk,
Health-Related Problems
When Kerr-McGee opened a uranium mine and milling operation
on the Navajo Reservation in about 19^8, approximately 100 Navajos
were employed to work the mines. By 1979» twenty five of the
original Navajo miners had died of lung cancer, and forty five
had contracted lung cancer,^ In Begay v. Kerr-McGee Corporation,53
eighty seven disabled Navajo miners and thirty nine surviving
widows sought damages against Kerr-McGee, alleging that the
uranium workers were exposed to radon and "radon daughter"
products, causing cancer and other radiation related illnesses
in the plaintiffs and plaintiffs' decedents.
Exposure to radon gas does not result in acute radiation
sickness. Rather, inhalation of the radioactive gas and long
term irradiation of lung tissue is suspected of causing cancer.53
Uranium workers are exposed to higher levels of the dangerous
substances for longer periods than is the general public. When
miners do not understand the chronic effects of the materials
they work with, the risk is intensified.
00566
Responses to Mining-Related Problems
When self-determination is established as a tribal goal,
there must be a corresponding effort to correct or minimize
existing problems and to establish a plan for economic development
that is acceptable to both traditional and progressive members
of the tribe. The differencA in individual attitudes toward
"progress" and "culture" has been mentioned previously. The
absence of a detailed analysis of the political factions within
the Navajo tribe is not meant to de-emphasize the importance
of internal interactions in aiding or impeding the establishment
of a workable self-determination plan. Although political
analysis of the tribe is beyond the scope of this comment,
the existence of differing goals and priorities must be noted
before the various responses to mining-related problems are
addressed. At risk of over-generalization, Indian responses
are separated into two categories: 1) responses of the individual
Navajo with greater emphasis on maintenance of traditional
Navajo values and 2) responses of the Navajo Tribal Council,
which is generally viewed as oriented toward rapid economic
development.
Preliminary Note on Federal Response
The protection that federal legislation provides with
respect to the harmful effects of mining is questionable in
some instances and promising in others. For example, the
Omnibus Tribal Leasing Act-^ was passed by Congress to provide
the BIA with environmental standards guidelines for mining on
Indian reservations,^ The Act is not applicable to BIA approval
of underground operations, and only provides for forfeiture
of a $2,000 bond in the event that the operator fails to follow
the submitted plan for reclamation, A $2,000 bond forfeiture
is minimal compared with the operator's reclamation costs,
In 1978, Congress addressed the serious health hazard
presented by on-the-surface mill tailings storage at both active
and abandoned sites and passed the Uranium Mill Tailings RadiatiOB
(i(ibb?
Control Act.57 The Act provides for both regulation at active
sites and stabilization of tailings at inactive mill sites.
The remedial portion of the Act is somewhat controversial.
One example is the reclamation of abandoned piles by burial or
covering with three feet of soil. Studies have shown that
twelve to twenty feet of soil is necessary to retain 99% of
the radon gas. 58 The Environmental Protection Agency (L'PA)
was challenged for failure to establish proper guidelines
for the remedial portion of the Mill Tailings Act. New guidelines have been established, but their effectiveness is yet to
be d e t e r m i n e d . 5 9 The overall success of this Act is of special
importance to Indian tribes, since a large portion of the
exposed mill tailings piles are located on Indian lands.
The development of coal as an important aspect of U.S.
energy policy and the utilization of stripmining to extract
this energy resource are aspects of energy resource development
that have caused great division among the general public. In
an attempt to balance the environment and energy interests,
Congress enacted the Surface Mining Control and Reclamation
Act of 1977.^ The Act has created a great deal of turmoil
within the coal industry and has been the subject of much
litigation.Section 710 of the Act deals specifically with
surface mining on Indian lands and presents an innovative
approach to administration and enforcement of federal regulations
pertaining to Indian lands, vi/hen the Senate Committee on Interior
and Insular Affairs was considering the statutory provisions
of the proposed Act, Committee members were requested by
representatives of a large number of tribes to postpone regulations dealing with Indian lands until tribes had an opportunity
to design mining and reclamation programs for their own lands.
Consequently, the Act directed the Secretary of Interior to
conduct a study of the regulation of surface mining on Indian
lands, consulting with Indian tribes, and then proposing
legislation which would allow Indian tribes to assume full
regulatory authority over administration and enforcement of
the Act without jurisdictional conflicts.^ In this respect,
Congress has taken a positive step toward encouraging Indian
self-determination by suggesting that Indian tribes should be
allowed to function as states under the Act if they choose to
00568
take on that responsibility. 65
^ Another favorable provision of
the Act is that which requires the Secretary of Interior to
incorporate the regulation program into all existing coal mining
leases on Indian l a n d s . T h i s provision should help to ensure
that consistent standards can be maintained throughout the
reservation.
The National Environmental Policy Act^7 designates environmental effects as an important policy consideration for all federal
agencies and requires that an environmental impact statement
be prepared anytime an agency is considering a major action
that will affect the environment. In Davis v. M o r t o n t h e
U.S. Court of Appeals (10th Circuit) held that Secretary of
Interior approval of leases for Indian lands which referred
to the U.S. government "countless times" constituted a major
federal action within the terms of the National Environmental
Policy Act. This holding opened the door for suits to enjoin
performance of Indian land mineral leases until impact on
the environment can be evaluated. It should be noted, however,
that the environmental impact statements are prepared by a
federal agency which is directed by Congress to consult the
Secretary of Interior for guidance with respect to Indian lands.
In turn, the Secretary of Interior has a duty to protect
environmental interests, the tribe's economic interests, and
the energy interests of the nation. This conflict in Department
of Interior policy places the Secretary in a position of considerable discretion, where the various interests are balanced on a
case by case basis, possibly to the benefit or detriment of the
individual Indian.^9
Individual Response
Individual Indians have attempted to cancel leases which
they considered detrimental to their environment by filing suits
in federal courts. These suits have been unsuccessful, however,
due to concepts of "tribal immunity" and "indispensable parties. "70
In Tewa Tesuque v. Morton.71 the U.S. Court of Appeals (10th
Circuit) upheld the New Mexico District Court's dismissal of
a class action seeking cancellation of a 99 year lease between
plaintiff's tribe and a developer. The court held that the
tribe was an indispensable party and that the courts will
not interfere with the "internal workings of Indian Tribes."
In addition, the court stated that the doctrine of sovereign
immunity barred the suit against federal officials since the
action was essentially an unconsented suit against the United
States.
Similar efforts by the traditional Hopis have also been
unsuccessful. In Lomayaktewa v. Hathaway.leaders of the
traditional Hopi faction brought action to void a lease between
their tribe and the Peabody Coal Company, The lease provided
for mining in an area known as the Black Mesa, owned jointly
(at the time) by the Navajo Tribe. The U.S. Court of Appeals
(9th Circuit) held that the Hopi Tribe, as lessor, was an
indispensable party and that the tribe could not be joined
without ignoring concepts of sovereign immunity.
Although in Tewa Tesuque v. Morton plaintiff's suit to
cancel a lease based on violations of the National Environmental
Policy Act (NEPA) was dismissed for failure to join an indispensable party, actions to enjoin performance of a lease until
violations of NEPA could be corrected were not dismissed for
failure to join the Navajo Tribe in Manygoats v. K l e p p e ? 3 and
National Indian Youth Council v. Andrus.?^
Individual Navajos have also sought damages in state,
federal, and tribal courts for mining related injuries. In
Johnson v. K e r r - M c G e e . t h e plaintiff sought recovery based
on intentional tort and wrongful death for Kerr-McGee's alleged
failure to warn plaintiff's decedent (defendant's employee) of
the health hazards that were inherent in the mining operation.
The Arizona Court of Appeals held that the Workmen's Compensation
Act barred recovery in tort and granted the employer immunity
from wrongful death actions.
In Bega.y v. Kerr-McGee.Indian miners and surviving widows
of Indian miners sought damages for injuries and deaths allegedly
caused by exposure to radioactive materials at a Kerr-McGee
uranium mine on the Navajo Reservation. The action was brought
in the Federal District Court of Arizona based on diversity,
but was dismissed on the basis of Arizona law which granted
00570
immunity to employers that complied with the workers compensation statute,
UNC Resources, Inc. v. Benall.y?? was a successful attempt
by an off-reservation uranium mill operator to enjoin civil
suits in the Navajo Tribal Court for damages against UNC for
injury to lands and livestock caused by spilling of wastes
from a UNC mill tailings pond. vVithout declaring plaintiff's
nonliability, the District Court granted UNC's request for a
preliminary injunction, holding that the Navajo Tribal Court
did not have jurisdiction over a non-Indian civil defendant's
off-reservation activities. It is important to note that the
injured areas were not within the boundaries of the Navajo
Reservation, but were located in Indian Country, "-that checkerboard area of mixed federal, state, and tribal jurisdiction
adjoining the reservation proper." 78
In general, tort actions by Navajo individuals for injuries
related to mining activities have not been very successful.
In addition to jurisdictional problems, the element of causation
has presented significant difficulties for the plaintiff,
especially where low level radiation injuries are i n v o l v e d .
Tribal Response
In January of 1977, the Department of Interior approved a
contract entered into by the Navajo Tribe and Exxon Corporation
which constituted the first significant departure from the
standard leasing procedure for hard minerals on Indian lands.
After extensive negotiations with several companies, the Navajo
Tribe reached an agreement with Exxon for uranium exploration
and development on the Navajo Reservation. The method of
development was deferred until mining began, at which time the
tribe would determine the extent of tribal participation in
the development process.^'
This option agreement is exemplary of the role that the
Navajo Tribe has played in the gradual transition of energy
resource tribes from a position of exploited by-stander to
active negotiator. Although there are still significant hurdles
to cross, the Navajo Tribe and other energy resource tribes
00571
have adopted cin aggreog ive attitude toward gaining maximum
possible control over resource development in order to improve
the economic status of the tribe. Perhaps the most important
preliminary step involved in the transition is the education
of tribal representatives with respect to energy resource
technology and business transactions and the accumulation of
relevant tribal resource data. The Council on Energy Resource
Tribes (CERT), founded and chaired by three term Navajo Chairman
Peter McDonald,79 has established a Technical Assistance Center
which assists tribes that are preparing for leasing negotiations
by helping them to evaluate their resource potential and other
relevant factors such as environment impact and financial
An
possibilities.
CERT recommends four types of agreements in
On
place of the standard BIA lease.
A negotiated lease
agreement allows the tribe to incorporate its goals into the
agreement without risk of investment loss or the burden of
administration responsibilities. Provisions in the negotiated
lease might include an agreement by the developer to provide
training and job positions for local Indians or to pay annual
rents on the leased land to compensate the tribe for detrimental
effects on the land or tribal social structures. Where the
tribe is able to assume some administrative responsibilities,
it may benefit from higher profit by establishing a joint
venture with a selected resource developer. The developer
provides the capital, the tribe provides the resource, both
share in the administrative responsibilities, and after the
developer's capital
is recovered, both share in the net profits.
Similarly, a limited partnership agreement allows the tribe and
its partner to share in the net profits. Unlike the joint venture,
a limited partnership places the investor in a passive (nonmanagerial) position, and the tribe assumes total control over
the management of the development project. Finally, a service
contract agreement is recommended only where risk of poor
recovery is not a factor and where the tribe can provide
substantial capital. In this type of agreement, the tribe
retains ownership of the resource, hires a developer to operate
the mine, and assumes risk of low production but realizes
maximum economic return if there is production.
00572
The Navajo Tribe has not utilized a standard mineral
resource lease since 1975 and currently favors the use of
ftp
joint ventures and service contracts.
All applications for
mining leases receive close scrutiny by the Navajo Tribal
Council system. The application must first be approved by
the Tribal Office of Energy Resources, and before the proposed
lease is sent to the Secretary of Interior, it must be approved
by the Chairman of the Tribal Council, the Branch of Realty,
the Navajo General Superintendent, and the Navajo Area Director,^
The adoption of a tribal code may also be an effective
means of controlling the resource developer's activities on
the reservation. For example, Chapter 15, Section 611 of the
Navajo Tribal Code requires that all leases contain provisions
whereby the lessee agrees to abide by the tribal labor policy
as set out in Chapter 15 of the Code, If the labor provisions
are not obeyed in accordance with the lease, the lessee
forfeits his leasehold interest. Chapter 5 of the Navajo Tribal
Code deals with mine safety and authorizes the Tribal Mining
Engineer to inspect mines on the reservation at any time.^
In addition, the Tribal Code outlines the notice and hearing
procedures to be used in canceling a lease for violations of
the Mine Safety Code.85
In light of a recent Supreme Court decision, the Navajo's
possessory-interest tax on non-Indian lessees of Indian lands
could provide an important means of realizing an equitable
return on extracted minerals. The Navajo possessory-interest
86
tax was contested by energy companies in a number of lawsuits,
but the decision in Merrion v. Jicarilla Apache Tribe8? approved
a tribal mineral severance tax on non-Indian lessees of Indian
lands. Justice Marshall described the tribe's right to tax
as a "fundamental attribute of soveriegnty that the Indian tribes
retain unless divested of it by federal law or by necessary
implication of their dependent status."
00573
The Future of Indian Mineral Leasing
As the Navajo Tribe's progress in the utilization of
alternative leasing systems illustrates, Indian tribes have
made significant steps toward asserting control over Indian
energy resource development. Continued cooperation between the
energy resource tribes will help to insure that government
officials and outside resource developers are kept informed
of the progress that resource tribes have made in developing
expertise in the field of resource technology,
CERT's accomplishments have caused the legislature to
re-evaluate their regulation of tribal resource development
and, -as the Surface Mining Control and Reclamation Act indicates,
Congress seems to have recognized that many resource tribes have
both the desire and capability to manage their own resources.
At this time, the federal leasing system has not been
altered, and resource tribes are still facing numerous problems
in their attempts to increase their control over Indian mineral
development. However, there are indications that the current
leasing system will undergo drastic change in the near future.
In addition to CERT's position as an effective lobby and a
recognized authority in the area of Indian resource development,
there is a possibility that greater control over surface
mining will be delegated to the individual tribes, and there
is a good possibility that an important statutory change in
federal policy regarding Indian resource development will be
enacted. At present, the Melcher Bill has passed the Senate
and the House with one amendment in the House and possible
reconsideration in the Senate,^ This bill presents a modification of the current competitive bidding for mineral leases
in that it would allow tribes to negotiate alternative mineral
agreements so that they can exercise greater control over
mineral development.
00574
BIBLIOGRAPHY
1. U.S. Congress /f9th, 1st Sess. House of Representatives
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8. See note 5 supra.
9. According to the Navajo Tribe Division of Community Developmen
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claiming 80% unemployment on the reservation, while state and
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25 and 30%. (Navajo Times, Nov. 10, 1982 at 1.)
10. Self Sufficiency Many Years in the Future, Says Zah,
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11. Posner, R.G., Developing the Tribal Economy Through
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13. Note: Three term Chairman of the Navajo tribe, who was
criticized for setting the "reservation economy on a course
that many economists, environmentalists and anthropologists
predict will destroy Navajo culture and livlihood by the
end of the century" (Gillenkirk, J. & M. Dowie, The Great
Indian Power Grab,
18-if8, 20 (Jan. 1982).)
was defeated in the recent Navajo elections by Peterson
Zah who stated after the
i that "officials in the
Zah administration do not plan to make any decisions affecting
energy development on the reservation until they have a
chance to confer with Navajos living in the affected areas."
(Navajo Times, Nov. 10, 1982 at 5.)
14. U.S. CONST, art. I, sect. 8, cl. 3 granted to Congress the
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15. 43 U.s.C.^ 145 (1976).
16. 25 U.S.C. all sections (1963).
17. U.S. v. Kagama, 118 U.S. 375, 384 (1886).
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U.S.C. ^50-if50n (1976 and Supp. Ill 1979))
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at 25 U.S.C. \ 397 (1976).
20. Swimmer, M.A., Indian Tribes: Self-Determination Through Effectj
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510 (Spring 1982).
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23. See note 20 supra.
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25. Act of March 3, 1909, ch.263, 35 Stat. 783; Act of Aug. 9,
1955, ch. 615, fj 3, 69 Stat. 540 (now codified as amended
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26. 25 U.S.C. ^ 396 (a) (1979).
27. See note 20 supra.
28. The Indian Resources Development Act, Section 2 (taken from
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AND CASES, The Bobbs-Merrill Co., Inc: NY (1973).
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4 (June 1980).
31. See note 30 supra.
00576
32. Roberge, M., Corporations Occupy New Mexico, Guile) MoAes
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37. See note 12 supra.
38. See note 12 supra.
39. Resistance at Big Mountain, Akwesasne Notes 17 (Early Summer 1981
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41. See note 4 supra.
42. 501 F.Supp. 649, 654 (1930).
43. See note 1+2. supra, at 664.
1+1+. Viers, B.J.M., Environmental Law: Uranium Mining on the
Navajo Reservation, 7 Am. ind. Law Rev. 115 91979).
45. EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT NUCLEAR POWER
IN TEXAS, Lone Star Alliance: Austin, Texas (no date).
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47. See note 45 supra, at 7.
48. See note 45 supra, at 9.
49. See note 45 supra, at 7.
50. See note 45 supra, at 10.
51. See note 45 supra, at 8.
52. 499 F.Supp. 1317 (1980).
53. See note 45 supra, at 9.
54. 25 U.S.C. 396(a) (1979).
55. See note 44 supra, at 123.
56. See note 44 supra, at 123.
57. Pub. L. No. 95-604, 92 Stat. 3021 (1978) (codified at 42 USCA
scattered sections).
58. See note 45 supra, at 8.
59. Personal Communication with Alice Hector, attorney - private
practice, Albuquerque, NM. (re: uranium litigation).
60. See note 59 supra.
61. Pub. L. No. 95-87, 91 Stat. 448 (codified at 30 U.S.C.^ 1201-132
(Supp. I 1977)).
00577
62. Wadsworth, S., Surface Mining Control and Reclamation Act
of 1977: Regulatory Controversies and Constitutional Challenges
8 Ecology Law Quarterly 772 (1980).
63.. In Re Surface Mining Regulation Litigation, 627 F.2d 13^6
(D.C. Circ. 1980).
64. Surface Mining Control and Reclamation Act, 30 U.S.C.
(1977).
65. See note 63 supra, at 1364.
66. Surface Mining Control and Reclamation Act, 30 U.S.C.
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69.
70.
71.
72.
(1977).
42 U.S.C. 4332 (1979).
469 F.2d 593 (10th Circ. 1972).
See note 44 supra, at 122.
See note 44 supra, at 118.
498 F.2d 240 (10th Circ. 1974).
520 F.2d 1324 (9th Circ. 1975), cert, den.
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76.
77.
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79.
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81.
82.
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501 F. Supp. 649 (Dist. N. Mex. 1980).
631 P.2d 5^8 (Ariz. App. 1981).
682 F.2d 1311 (9th Circ. 1982).
514 F. Supp. 358 (Dist. N. Mex. 1981).
514 F. Supp. 358, 360 (Dist. N. Mex. 1981).
See note 59 supra.
See note 20 supra.
See note 20 supra.
Telephone Interview with Director Zaman, Navajo Tribe
Department of Minerals. 11/17/82.
83. tit.18 NTCf 801 (1977).
84. tit. 5 NTC^ 401 (1977).
85. tit. 5 N T C ^ 402-407-(1977).
00578
1300(a)
1300(c)