Tuesday, September 02, 2003
Copyright © Las Vegas Review-Journal

NUCLEAR WASTE REPOSITORY: Yucca Mountain already having effect on tribes

American Indians waiting for U.S. government to give them voice

Western Shoshones Joe Kennedy, left, and Ian Zabarte stand inside the exploratory tunnel in Yucca Mountain with Kami Sue Miller of the Moapa Band of Paiutes. Photo by Gary Thompson. Ian Zabarte of the Western Shoshone National Council points toward pinyon pine and juniper forests where Shoshones have hunted for centuries. Photo by Gary Thompson. Click image for enlargement. Christopher Peters, left, president of the Seventh Generation Fund, and Joe Kennedy of the Timbisha Shoshone tribe look over Crater Flat in Nye County last week while standing near the crest of Yucca Mountain, which representatives of American Indian tribes toured last week. Photo by Gary Thompson.

Like a giant snake slithering westward, Yucca Mountain zigzags for nearly 20 miles across the remote terrain of southern Nye County.

On one side, a band of white rock separates its belly from its back, midway to the top of its 5,000-foot crest. It is alive and moving in American Indian lore.

Deep inside it, a 5-mile tunnel loops through layers of volcanic rock that someday, possibly as soon as seven years, will lead to a maze of smaller tunnels destined to become the final resting place for the nation's most deadly nuclear waste.

The ridge, said Joe Kennedy, 36, of the Timbisha tribe, "is a very sacred mountain to Shoshones" and should not be used for burial of highly radioactive spent fuel from U.S. nuclear power reactors.

Until last week, Kennedy had never been to this place where his father, John, 84, hunted rabbits and roamed the high desert. The area is about 40 miles northeast of where his grandfather, Joe, helped build Scotty's Castle, in Death Valley, Calif. And it's in the same area where his great grandfather, Palmetto Fred, lived off the land on what is now the Nevada Test Site.

Because of their proximity to Yucca Mountain, the Timbisha Shoshone Tribe and the Duckwater Shoshone Tribe near Ely filed requests last year with the Interior Department seeking affected Indian tribe status.

The designation, similar to that afforded Nevada and counties around the mountain, would give the several hundred members of these tribes a voice in matters concerning the project and funding for independent oversight of it.

In November, the National Congress of American Indians passed a resolution urging Interior Secretary Gale Norton to grant affected status to the tribes who submitted petitions.

But after more than 14 months, the Interior Department has not acted on their requests, casting doubt in the mind of Kennedy and other American Indians that they will be treated fairly as the congressionally approved project enters the licensing phase late next year. That's when the Department of Energy is expected to complete a license application for the Nuclear Regulatory Commission to review.

"I think it's outrageous," Kennedy said last week about the Interior Department's lack of response. "We are very close to Yucca Mountain, and our waters come from there."

An Interior Department spokesman for Indian Affairs, Dan DuBray, said his agency hasn't decided whether to favor or oppose the petitions by the two Shoshone tribes. It's unclear whether, or when, a decision will be made.

"It has not been resolved," he said by telephone Thursday. "The timetable has not been set. There is no legal requirement for any certain amount of time to elapse."

His response came as tribal representatives were wrapping up the Native American Forum on Nuclear Waste, which included a tour of Yucca Mountain, 100 miles northwest of Las Vegas.

The gathering drew members of tribes from Nevada, California and as far away as Minnesota. It was co-sponsored by the Western Shoshone National Council, the Las Vegas Paiute Tribe and the Seventh Generation Fund, an organization based in Arcata, Calif., that is supported in part by the Ford Foundation. The fund gives grants to tribes for environmental justice campaigns and protection of sacred, American Indian lands.

At times, the tour turned in to a debate over the merits of the science about entombing the waste for at least 10,000 years.

The government's guide, engineer Patrick Rowe, went to great lengths to explain all of the safeguards that had been incorporated into the repository's design, one that he said would be flexible to accommodate the heat given off by the decaying waste.

Those on the tour were not convinced and challenged his remark -- "We'll be studying the site indefinitely" -- to mean that the scientific work had not been completed before Energy Secretary Spencer Abraham and President Bush recommended the site to Congress last year.

Inside the tunnel, Kami Sue Miller of the Moapa Band of Paiutes, remarked, "It doesn't look sturdy to me."

Rowe later acknowledged that, "We know these tunnels are going to collapse over time," but the waste packages will still be isolated.

Christopher Peters of the Yurok tribe, who is president and chief executive officer of the Seventh Generation Fund, said the planned repository will affect tribes nationwide, particularly as 77,000 tons of spent fuel assemblies and highly radioactive defense wastes are hauled to the mountain by trains and trucks.

"The impact area is going to be multistate, multigenerational," he said.

But what puzzled many of the tribal representatives and environmentalists who accompanied them on the tour is why a formal record of decision wasn't issued when the Energy Department released its final environmental impact statement for the proposed repository.

The answer was not immediately available, said a spokesman for the Office of Repository Development, Allen Benson, who suggested they put the question in writing to the energy secretary.

Peters wondered how the impact statement became final without full consideration of the tribes who regard Yucca Mountain as "a powerful place. ... To tear out its core and replace it with toxicity has got to have an impact," he said.

As for the issue of affected status designation, Benson said that if the planned repository were located within a reservation, which it is not, then the secretary of Energy could grant affected status to tribes.

"If the site is not on a reservation, a tribe can apply to the secretary of Interior based on substantial, adverse impacts to treaty rights," he said.

Ian Zabarte, secretary of state for the Western Shoshone National Council who helped the tribes file their petitions, said the key words are "treaty rights," specifically, those which he believes were never relinquished under the 1863 Ruby Valley Treaty.

The Ruby Valley Treaty is an eight-part pact between Western Shoshones and the federal government that was negotiated by Nye County's namesake, James W. Nye, a federal commissioner at the time who was governor of the Nevada Territory.

It came in the midst of Indian wars and authorized a reservation for the Western Shoshones. The treaty provided several routes of travel through Shoshone country, but it never relinquished control of the land to the U.S. government. As compensation, the Shoshones were given $5,000 worth of cattle and goods for 20 years.

In 1966, government lawyers sought to extinguish Western Shoshone title to more than 22 million acres of land in Nevada. Thirteen years later, the Western Shoshones were awarded $26 million for the government's taking of the land.

Then in 1985, the U.S. Supreme Court ruled that the United States owned the land and that claims under the treaty had been extinguished and compensated with the money earning interest in a trust account. In July the account stood at $142 million, awaiting distribution among 6,500 Western Shoshones.

The Senate Indian Affairs Committee approved the bill to distribute the funds in July, causing celebration among some Western Shoshone who want the money but dismay among tribal members who fear their land will never be returned.

"I think we recognize the position of the Supreme Court," said DuBray, the Interior Department spokesman.

Because of the federal government's historical relationship with tribes in Nevada, some in the Indian community, such as Gloria Wilson Shearer, a Paiute from Caliente, are skeptical.

"In my mind, we're going to lose, but I don't want to give up," Shearer said.

She recalled the bitterness she felt in 1998 when she found out that a U.S. Forest Service crew had mistakenly razed Lost Cabin, a landmark built by her grandfather, who provided food and supplies to miners south of the Spring Mountains.

"It seems like that damned government can come in and do whatever they want," she said. Winnona La Duke, a member of the Objibwe Tribe in Minnesota who twice ran for U.S. vice president and directs the Honor the Earth Foundation, said the Bush administration is in denial about its nuclear energy policy.

"The government doesn't want to talk about the impact and doesn't want to talk about trust and responsibility," she said outside the forum at the Las Vegas Paiute Colony in Las Vegas.

Burying nuclear waste in Yucca Mountain is "a bad idea," she said. "The solution is, if the tub is overflowing, you should turn off the faucet. If you don't, Yucca Mountain enables a withering industry to resuscitate itself."

Zabarte contends the Ruby Valley Treaty has standing in the petitions. The bottom line, in his view, is that the federal government is violating the Western Shoshones' due process because the repository, if built, will take away the beneficial use of their property.

"You soften them up for 50 years of nuclear weapons testing, then you steal their land," he said. "It's not about science. It's politics. It's about how people treat other people. We're being violated. It hurts. That's the issue here."