Environment

Published — November 18, 2008 Updated — May 19, 2014 at 12:19 pm ET

Outsiders target Indian land for risky business

Developers skirt state and local laws by building on Indian land

Introduction

Deep in the foothills, miles above California’s Sacramento Valley, the 640-acre home of the Cortina Band of Wintun Indians lies empty except for six houses, a graveyard, and the spot where the band’s ceremonial roundhouse once stood.

A sign at the gate warns off outsiders, but on a recent afternoon there is no one inside to drive visitors away. All but 20 or so of the band’s 160 members live elsewhere. Most are scattered throughout California and the West. Some moved as far away as Tennessee and Canada.

The land is beautiful, but it’s hard to live on and harder yet to make a living from. Electric lights replaced lanterns only a few years back. Phone service cuts in and out. In summer, the communal well dries up.

Hilly, parched, and carpeted with prickly star thistle, the Cortina land isn’t much good for farming or running cattle. It isn’t good for much, but two outside developers have found a way to make the Cortina land pay.

In 2007, the band began leasing nearly 70 percent of its land to be used for a landfill by a joint project between a Canadian venture capital company and a California waste hauler. The company plans to truck in 1,500 tons of municipal waste a day and bury it deep in Cortina’s canyons.

The Cortina landfill is one among dozens of projects across the country for which developers and Native Americans are using Indian sovereignty to bypass state and local regulations and build projects that other communities shun – projects ranging from landfills, big box stores and a massive power plant to casinos, motorcycle tracks and billboards. Neighbors are paying the price.

In California, the Cortina tribal leadership calls its landfill deal a financial savior, but like the people who live near other controversial Indian land projects, the farmers and ranchers who live below the Cortina land, and some tribal members, fear the landfill will leak and ruin the local environment.

“It has the potential to be a major disaster,” said Tom Griffith, a rancher who pastures his cattle 1.5 miles below the Indian land. “If you or I wanted to do this, it wouldn’t get past first base.”

***

Outside corporations have developed projects like the Cortina landfill, sometimes together with tribal partners, on large and small Indian reservations across the country. Indian trust lands fall under federal jurisdiction and in most cases are immune from state and municipal laws and regulations. Planning boards and communities surrounding Indian land are left with little control over what is built in their back yards.

Desert Rock, a massive coal-fired power plant planned for the Navajo Nation reservation, is the largest and most contentious Indian land project. A joint venture between a Navajo tribal subsidiary and Sithe Global Power of Houston, the plant would sit on a 600-acre parcel of the reservation in New Mexico. It would sell power to Phoenix and Las Vegas, while adding air pollution to the Four Corners region.

The Navajo Nation, which sprawls over portions of Arizona and Utah, as well as New Mexico, expects the project to bring in $50 million a year in taxes, royalties and other payments and create up to 3,000 new construction jobs, but the plant is facing opposition. Cities and towns near the site, as well as some tribal members, oppose the plant. New Mexico Governor Bill Richardson called Desert Rock “a step backwards” and said the plant would increase the state’s greenhouse gas emissions by as much as 15 percent. The state has appealed EPA air permits for the project.

Frank Maisano, a spokesman for Sithe Global, said that such tactics are an assault on the Navajo Nation’s economy and sovereignty. “It’s not their decision,” he said about project opponents. “It’s a decision the Navajo Nation has to make. And the Navajo Nation has spoken.”

Maisano also said the Navajo tribe came to Sithe Global asking to work together, not the other way around.

Bradley Angel, executive director of the environmental advocacy group Greenaction, which tracks projects on Indian land, said corporations have long targeted reservations for mines, waste incinerators, landfills, and other heavily-regulated uses that other communities often block.

“It raises incredibly troubling questions about the behavior of industries trying to make a profit on dangerous projects and the federal government’s role in facilitating that,” Angel said.

Many types of developments on Indian land require environmental impact studies from the Bureau of Indian Affairs, which critics argue do not put enough weight on the impact of projects on communities outside the reservations. Carl Artman, the former BIA assistant secretary, told Congress in 2007 that the environmental studies are exhaustive. “These assessments are done to determine if the proposed use of the land is feasible or desirable and what effect the proposed project will have on the human environment, local habitation and wildlife,” he said. “Depending on the type of environmental review done, this process can take months or years.”

Some projects also require EPA land and air quality permits.

A spokesman for Senator Byron Dorgan, Democrat of North Dakota and chairman of the Senate Committee on Indian Affairs, said Congress is not trying to limit efforts to develop Indian lands. In fact, Dorgan has been a critic of the red tape and “scattered bureaucracy” that delays projects that would bring badly needed jobs and economic development to reservations. In October, Dorgan asked the Interior Department to expedite permits for oil and gas drilling on the Fort Berthold Indian Reservation in North Dakota.

Critics say legislators are unlikely to take a stand against development on Indian reservations for fear of shutting off what’s become a free-flowing spigot of campaign cash.

As tribal gaming revenue has grown from $200 million in 1988 to $26 billion in 2007, Indian tribes have become major political contributors. During the 2008 federal election cycle, Indian gaming interests contributed almost $8 million, 73 percent to Democrats. In California, tribes spent more than $12.7 million between the start of 2006 and July 2007 in political expenditures, mostly in the form of state campaign contributions, according to a study by the nonprofit advocacy organization Common Cause.

Tribes have also sought increased influence through lobbying efforts, which has led to scandal. In 2005, Dorgan returned $67,000 in donations from Indian tribes represented by the disgraced lobbyist Jack Abramoff, who later pleaded guilty to bribery and fraud charges.

Many of the projects that anger reservation neighbors are more annoying than dangerous. Among them, casinos are the highest profile, but neighbors also complain about golf courses, race tracks, and amphitheaters. South of Seattle, the city of Puyallup has battled for years with a Quinault Indian family who leased their land for a mammoth billboard that towered 80 feet over a main thoroughfare. The city forced the sign company to tear down the billboard, but the owners’ lawsuit continues.

In San Diego County, the site of more Indian reservations than anywhere else in the country, the battle over Indian development is an old story. For 15 years, the Jamul band has been fighting the outside community and some of its own members to build a casino on its tiny lands. Past designs included a 30-story building on the 6-acre Jamul Indian Village, though more recent plans have been scaled down. The project is promoted by Lakes Entertainment, a publicly-traded company based in Minnesota.

Seven miles from the proposed Jamul casino, the Barona band of Mission Indians’ reservation houses a casino and resort hotel, the Barona Speedway, and an 18-hole golf course that set off a water dispute after neighbors claimed the golf course and other tribal development dried up their wells. The Barona band has denied responsibility. At the Pala reservation in North San Diego County, developers are building a 12-track, 240-acre motocross and off-road racing facility on an abandoned gravel quarry.

Charles Matthews lives in a gated community nearby. He’s fighting the motocross track because he thinks the engine noise, dust, and exhaust will carry with the wind toward his home. He said many of his neighbors don’t even know the track is being built. “The tribe is very secretive about what they are doing,” he said.

If developers had not sidestepped the county permitting process, which would have included water, dust, and noise studies and community input, the race tracks and golf course and other developments probably would have been more costly to build, if they were built at all.

***

The conflicts are set to get worse as urban development sprawls toward rural areas where most Indian reservations are located, said David Bricklin, a Seattle attorney who represents communities fighting reservation development, most recently in a losing battle against an outdoor concert venue on land belonging to the Muckleshoot Indian Tribe, 25 miles south of Seattle.

Bricklin said state politicians and city and town leaders often refuse to take on Indian nations, which have become major donators to political candidates. Bricklin also said opponents are branded racists by development supporters. “You get accused of being prejudiced against the tribes if you dare to challenge the project,” he said.

But John Dossett, general counsel for the National Congress of American Indians, said land use battles cut both ways. Tribal land and people have been far more heavily impacted by development outside reservations, he said. “It is more than a little unfair that tribes, who have been among the last to receive the benefits of economic development, would be expected to keep their lands pristine while everyone has developed all around them.”

Conflicts are also gaining intensity as casino-rich tribes lay down their winnings on real estate. The Department of the Interior has clamped down on tribes turning land far from their home reservations into casino sites, a practice known as casino shopping, but tribes are whittling away land from cities and towns as they expand the borders of their reservations with land purchases.

Nowhere is the battle over turning casino chips into reservation land as pitched as in upstate New York where the Oneida Indian Nation has used winnings from its 1,200-acre Turning Stone Resort and Casino to buy real estate. The Department of Interior holds Indian lands in federal trust and has the authority to add to a nation’s holdings. New York filed suit this summer to block a department decision to add more than 13,000 acres of land into trust for the Oneida Indian Nation.

If the ruling stands, it will cut the land from state and local tax rolls. Municipal zoning will no longer apply. Land use decisions will be entirely up to the tribe.

“Our concern is that if this land is taken into trust, then what happens to it?” said Peter Hedglon, the mayor of Oneida, a city of 11,000 set to lose land to the reservation. “Federal law is supposed to enable and help empower Native Americans to create, or recreate, a homeland. But was it intended to destroy other people’s homelands to accomplish that?”

If the tribe wins the land, Hedglon fears it will cash in more chips for land and carve away at New York’s cities and towns until they can no longer function. But Mark Emery, a spokesman for the Oneida, said the Nation and its business enterprises contribute far more to the state and local governments – in payroll taxes, direct payments for municipal services and the “ripple effect” of its own spending – than they would receive from property taxes. In addition, he said the land that would go into trust is only a small portion of the Oneida’s traditional lands.

Other communities are in a similar situation. Outside Minneapolis, the Shakopee Sioux tribe uses profits from its Mystic Lake Casino Hotel to buy land and has petitioned to add 750 acres into trust . John Schmitt, mayor of the City of Shakopee, which is fighting the move, said the tribe bought strategic plots that checkmate the city’s growth.

“We don’t necessarily know what they are going to do with the land. They don’t share that with us,” Schmitt said. “It’s a one-way street.”

Shakopee Community Chairman Stanley R. Crooks, in a written response to Center questions, said the land is being bought to support a growing tribe. The tribe gave up 35 million acres in Southern Minnesota in 1851, and it is doing what it can to buy back as much as possible. “We have a young and growing tribal membership and a very small land base, so we are quickly running out of land for our members’ housing needs,” he wrote. “Half of our current tribal members are under the age of 20, so as of right now we will run out of land in trust for our members by 2010.”

***

Colusa County, home of the Cortina Band, is a place of pickup trucks, cowboy boots, and Republican Party loyalties, an unpretentious stretch of Northern California where farmers help each other harvest crops before the fall rains. Many families have been here for generations. More recently, Hispanic workers and long-haul commuters bought homes.

The Cortina Rancheria dates back to 1907 and is one of more than 40 small reservation-like Indian settlements in the state. Indians and white farmers say the two groups get along. The Indians work white-owned farms and the children go to the same schools, but they tend to live their private and social lives apart.

The trouble started in the late 1980s, when the band signed its first lease with a California trash company. That lease stalled when the company dumped 700,000 pounds of asbestos-contaminated waste on Cortina land before final permission was granted.

Years later, Earthworks, a British Columbia venture capital company with no other business projects, negotiated a 25-year landfill lease with the band. The renewable lease will bring at least $15,000 a month to the tribe, up to a maximum of 3 to 5 percent of landfill revenues.

Matt Ferrini is a third-generation farmer who grows almonds and raises livestock on a 2,000-acre ranch below the Cortina land. On a recent afternoon, his daughter, 21-year-old Amanda, raked almonds onto a conveyor while her father drove a diesel harvesting machine through the rows of trees.

Ferrini worries the landfill will leak and pollute the farmland below, despite the liners the company will install. The site is on an earthquake fault, and Ferrini said heavy rains cause massive erosion.

Stepping out of the harvester, Ferrini pointed up at a mountain ridge that loomed in the distance beyond the rancheria. “All the rain that comes off that ridge goes right through that rancheria and goes to the valley,” he said. “And that’s a hell of a watershed up there.”

The California Regional Water Quality Control Board is also concerned. In September, a senior hydrologist with the agency sent comments on the landfill design to the tribe. The landfill company has proposed using an alternative liner, but the hydrologist wrote that it would not be approved under California regulations, which require at least five feet of separation between groundwater and waste.

“The proposed design would not be approved without adequate separation if it were under the purview of the Regional Water Board,” he wrote, later adding that the likelihood that the groundwater will be impacted is high.

But because the landfill is on Indian land, California legislators and the water board have no real say on any aspects of the landfill, including how it is run. Although the landfill must follow federal laws, most regulations on solid waste come from states. “Tribes have their own inherent authority to regulate themselves,” said Jeff Besougloff, Associate Director of the EPA’s American Indian Environmental Office.

Senator Barbara Boxer and Representatives Wally Herger and Mike Thompson, all from California, wrote letters to the BIA expressing concern about the project.

Ferrini’s wife, Colleen, runs a website for Colusa County Citizens for Safe Water, a loose organization of landowners opposed to the landfill. She writes letters to government officials and investigates the tribe and the landfill companies. The group in the past hired a lawyer and private detective to hunt up information about the tribe and the landfill companies. Still, Colleen Ferrini feels powerless.

“Who is going to be responsible when that spills over? We can’t get an answer. There is no answer. That’s what irks me about this project,” she said. “It’s fine to think of economic development first. There are very few people who would deny economic development for the tribe. It would be nice if the neighbors were considered as well.”

Cortina members are reticent to talk about their plans with their neighbors and especially with outsiders. Several members declined to speak on the record about the landfill and their opinions on the project. Tribal leaders also declined to be interviewed for this story, despite several phone calls and visits to the Cortina Rancheria’s office in California.

***

Critics say the poverty of non-gaming tribes makes them vulnerable to environmentally hazardous projects. At Cortina, the Wintun Environmental Protection Agency (WEPA) is charged with enforcing its own regulations on reservation land, though the federal EPA could intervene in an extreme case. Outsiders, and some Cortina tribal members, question the strength and integrity of WEPA, which lists four staff members on its website.

Cortina has a history of poor management and inadequate accounting. In 2006, the EPA designated the band a high-risk grant recipient after a series of audits dating back to 2001 revealed it failed to implement checks and balances in its accounting system, creating an opportunity for fraud. The list of findings includes tribal leadership loans of grant money to tribal members with no repayment schedule, personal items charged to federal programs, and checks voided and reissued sometimes more than once.

By 2007, the tribal leadership convinced the EPA it had cleaned up its practices and the agency took it off high-risk status. Ranchers in Colusa County are not convinced. They fear WEPA, which did not return calls for comment, lacks the teeth to force the landfill to follow the rules since it is staffed by tribal members who will make money from the landfill.

“That’s the first thing any kind of organization uses against a joint development with a tribe,” said David Atkinson, CEO of Earthworks, who met with Colusa County officials and citizens to address their concerns. “That automatically gets people up in arms.”

Atkinson denies targeting Cortina to get around regulations. He said the decision was made according to the market and the land’s proximity to Interstate Highway 5, which leads to the San Francisco Bay Area. “The location is perfect. It would boggle your mind to think about. There is no one there. There is no one within 10 miles,” he said, exaggerating slightly for effect.

Still, Atkinson admits he hoped building on tribal lands would be faster than building elsewhere. California is notorious among developers for stiff environmental regulations. Landfills are tied up in litigation for years after they are permitted. Three new landfills have been permitted since 1997, yet only one of them might be accepting waste by 2009, according to a state waste management board spokeswoman.

“The sovereignty component we felt might streamline some parts of this because you are not going through so many administrative levels,” Atkinson said. “You are dealing directly with the band.”

Or so Atkinson thought. But so far, that hasn’t happened. After more than 15 years of negotiations, the Bureau of Indian Affairs approved the lease but the project still needs construction and operation permits. Atkinson said he expects that to come soon. “It’s supposed to be based on science, not on politics,” he said.

The wait cost the company, and Atkinson blames battles with the county and residents. In 2003, the county sued the Bureau of Indian Affairs to appeal the lease and has also passed resolutions banning landfills. It dropped the lawsuit in 2006. Mark Marshall, a Colusa County supervisor, said the county ran out of money to fight. Supervisors tried to compromise with the tribe, Marshall said, but the citizens blocked any progress. “They are adamantly opposed to the project and they are telling us, ‘We don’t want it. We don’t want it. We don’t want it,’” Marshall said.

***

The Cortina tribal government office is in a blue-sided building between a hair salon and a dress shop in the city of Williams. Late this summer, Elaine Patterson, the tribal chair, refused requests to be interviewed for this story. Later, a secretary repeatedly said Patterson was busy but that she wanted to talk. She asked for a letter with questions and said Patterson would call to set up an interview. The letter was written but Patterson still did not respond to interview requests.

In the past, the Cortina leadership said racism was behind the landfill opposition. This summer, the band held a community meeting on the project at the rancheria. “You could see racism staring you in the face,” Thelma Brafford, the tribal administrator, said about the angry ranchers. “We have gone through it all of our lives. A part of us wanted to step up and scream, but we didn’t.”

Brafford said the landfill will bring money the tribe can use to buy better land for homes elsewhere. “Good grief, if it were good land we would have had houses already,” she said.

In the beginning, several Cortina members sent letters to the Bureau of Indian Affairs opposing the project. Lisa Ayers, a homemaker in Tennessee, is one of them, but she changed her mind. Ayers said she doesn’t know what to think. She hasn’t heard any news about the project in years.

“I guess it’s a sort of a hush-hush thing,” she said. “I hope it does go through as far as revenue. As far as sacredness, I hope it doesn’t damage anything there. It’s more difficult to know what to be for or against because we are out of state.”

Outside the Cortina Rancheria, citizens wonder about the Indians who live on the land. Will they stay after the landfill is built? None of them have spoken out publicly against the project, and many don’t understand why. Do they support the landfill?

Vernon Wright, a 51-year-old tribal member who lives in a small house 35 miles north of the reservation in the town of Willows, said Indians who live on the land are afraid to oppose the tribal leaders. “They are afraid that Elaine Patterson might come back on them,” Wright said.

Wright said the tribal leadership, which is elected, doles out money and other help and could cut off or try to disenroll anyone who speaks out against the landfill. With just over 100 voting-age members, he said leaders easily maintain power by helping supporters and quashing opposition.

He said he can talk freely about the landfill project because he doesn’t receive any benefits from the tribe. But he fears what could happen to his father, step-mother, brother, and aunt, who live on the reservation.

Wright said most members who live on the reservation don’t want the landfill, but the leadership and others who live outside the reservation see it as an opportunity to get paid. Wealthy tribes surround the band, which creates envy, he said. The nearby Rumsey Band of Wintun Indians runs the Cache Creek Casino, a mini mart, and also claims to be the largest landlord to the State of Illinois in its capital, Springfield.

“They see those Indians with a new car every year, and they want it, too,” Wright said.

Cortina members see the landfill as their chance to put their land to work, but Wright worries about his family. His relatives are buried there and his family does not want to leave, but the landfill will change everything.

“You get the breeze comes through there in the summertime around midnight or so,” he said. “I can imagine if the dump is back there and you get that breeze at night, you wake up smelling it.”

Wright thinks the band cannot stop the project, even if it wanted to. It signed the lease, and now it is up to the developers. Secretly, he said, many tribal members see the ranchers as their only hope.

***

It’s hard to know what a majority of the Cortina band wants, but in Colusa County opinions are strong. If anyone outside of the band supports the project, they stay quiet. Vernette Marsh, who owns a ranch on the gravel access road to the reservation, probably has the best reason to be angry.

The landfill company planned to widen the road that passes by Marsh’s ranch to make room for trash trucks, but her 1913 redwood barn blocked the path. Marsh refused to move it, even after the landfill company took her to court.

The company caved in, but the 71-year-old widow said the fight cost her $40,000. “I’m to the point in my life where I don’t care anymore,” Marsh said, standing near her barn on a recent afternoon. “I’m sick and tired of getting this shoved in my face.”

It’s not clear that the fight over Marsh’s barn is finished. Marsh said she doesn’t blame the Indians for the trouble that has come to Colusa County. They are going to have to live with the trash, she said. She blames the developers and the Bureau of Indian Affairs for signing off on the lease.

“I think the Indians got sold a bill of goods,” she said. “You dangle money in front of people, and that carrot looks awfully good at the end of the string. And that string is a very short string.”

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