Scholar argues that comprehensive environmental justice reform can promote Native American autonomy.
Only three active copper smelting plants exist in the United States—two just beyond the borders of Native American reservations. Despite comprising only one percent of the U.S. population, Native American communities account for 27 percent of the population facing heightened cancer risks due to copper emissions from these refineries.
In a recent article, Jonathan Skinner-Thompson, a professor at the University of Colorado Law School, argues that the prevailing approaches to environmental justice—which seek to provide everyone with the same environmental protections—inadquately address air pollution on Native American lands. Skinner-Thompson recommends that environmental justice reforms account for the historical impact of colonialism on Native American communities and their right to self-governance.
Skinner-Thompson contends that historical neglect in environmental legislation, particularly the Clean Air Act (CAA), has led to negative health outcomes in Native American communities, including higher rates of diabetes, asthma, and chronic obstructive pulmonary disease. He considers this neglect a form of “colonialism” embedded in the structure of the Act.
The historical neglect of Native American communities traces back to colonial periods, notes Skinner-Thompson. He explains that the U.S. Congress did not account for Native Americans in environmental laws, leading to cultural impositions and limited access to resources. Skinner-Thompson further explains that historical property laws have disregarded Native American communal land ownership principles and ultimately undermined their authority.
Native American communities require protections under environmental laws that promote self-governance, Skinner-Thompson argues. He suggests that to achieve self-governance, Native Americans require autonomy that aligns with their cultural values. For example, the current regulatory framework prohibits many tribes from conducting controlled burns across their traditional lands, a practice deemed essential for land management and integral to Native American traditions.
Native Americans struggle, however, to source funding to achieve effective air quality management programs outside of existing legislation and regulation. Without adequate financial support, Native Americans’ air quality programs are stifled, preventing robust protection on Native American lands that also respect cultural practices and self-governance.
The lack of technical expertise about Native American lands hampers the fair implementation of environmental practices fostering self-governance within tribal communities, suggests Skinner-Thompson. This limitation further restricts Native Americans’ ability to meet the rigorous air quality standards outlined in the CAA.
Skinner-Thompson recommends overhauling environmental laws within the CAA and urges regulators to address the historical consequences of colonialism by accommodating Native American values, traditions, and their right to self-governance. He insists that the federal government grant Native Americans greater autonomy in managing their environmental resources to achieve full independence. Skinner-Thompson highlights the importance of revising laws that lack recognition of Native American rights to uphold their sovereignty within environmental regulations.
Skinner-Thompson uses the 1998 Tribal Authority Rule to illustrate the future potential of environmental rulemaking.
The Tribal Authority Rule grants tribes equal treatment as states in most environmental management programs under the CAA. In this way, the Tribal Authority Rule enables tribal self-governance, Skinner-Thompson notes.
Opponents of the Tribal Authority Rule argue that the rule is not sufficiently flexible to meet the practical needs of Native Americans. Restructuring environmental laws creates heightened challenges, including legal and administrative complexities. Skinner-Thompson contends, however, that recognizing autonomy at the state level for purposes of the CAA would enable better recognition of government-to-government relations and ensure accurate tribal funding programs.
The U.S. Environmental Protection Agency has also sought to understand specific environmental hazards that tribal communities face. In January 2022, the agency proposed a review of copper smelter hazardous air pollution risks. In its review, the agency acknowledged that emissions disproportionately affect certain communities, specifically Native American populations who face heightened cancer risks due to copper smelting productions near their lands.
But simply identifying the risks does not go far enough, Skinner-Thompson urges. Regulators should instead recognize the legacy of colonialism and implement new schemes aimed at promoting Native American autonomy, he argues. Skinner-Thompson concludes this approach would reduce the likelihood of adverse health outcomes due to environmental hazards, such as health-harming copper smelters just beyond Native American borders.
