Enlightening Quechan Tribe v. U.S. Department of Interior

Recently, Native American tribes’ opposition to solar projects has been well – although inaccurately – documented.  The media coverage is the result of a San Diego Federal District Court’s decision where the Quechan Tribe of the Fort Yuma Indian Reservation (Quechan) sought and successfully obtained an injunction against the Bureau of Land Management (BLM)’s approval of a 709-megawatt solar farm planned for more than 6,000 acres of public land in the desert in California’s Imperial valley.  If built, the project would have been one of the largest solar facilities in the Nation.  Today, the “Imperial project” is dead in the water.

Quechan Tribe v. U.S. Dep’t of Interior (S.D. Cal. 2010)

A storm of media criticism has been levied upon the Quechan for not “supporting” the project.  After all, as stewards of the earth, Indians are supposed to love alternative energy, right?  Some commentators have used the fact that the tribe’s casino uses traditional energy to vilify the tribe’s environmental record.  One article in the Solar Home & Business Journal, suggested that the tribe does not actually care about its cultural resources, as the site of their “casino was considered sacred and contained precious cultural artifacts” (not true) but the “[b]ulldozers ‘roared into action’ despite the elders’ objections . . . .”  Other coverage appears to be more evenhanded.  A recent article in the San Diego Daily Transcript characterized the Quechan suit as “clearly epitomiz[ing] how the conflicting priorities of ancient tradition and modern urgent necessity are juxtaposed.”   Ultimately, that author concluded that his “sympathies are divided between the legitimate needs of the tribes” to preserve their ancient sites and artifacts “and the imperative to quickly respond to climate change.”

These analyses are over-simplified and create a false dichotomy that has nothing to do with the issues involved in the Quechan suit.

The lands at issue in Quechan involved public lands managed by the BLM, containing an estimated 459 “cultural resources,” many of which were of significance to the tribe.  All parties agreed that the cultural resources were legitimate, and that the lands had a “history of extensive use by Native American groups.”  The thrust of the tribe’s complaint alleged that the BLM “reached its approval decision prior to evaluating the eligibility of cultural resources identified in the project area and without engaging required consultation with tribes” pursuant to Section 106 of the National Historic Preservation Act, the National Environmental Protection Act, and various other procedural and substantive laws.

The fact that many of the laws invoked by the Quechan, and those that the decision focused on, were procedural is important, because it means that in making their consultation argument the tribe was not objecting to the implementation of the Imperial project.  In other words, the tribe was not valuing their cultural resources at a higher level than global warming, clean energy, or “modern urgent necessity” – as the media have portrayed.  Rather, the tribe was objecting to the procedure used by the BLM in granting the developer, Tessera Solar, the permits necessary to implement the project.  That procedure requires that federal agencies consult “meaningfully” with tribes if there is any possibility that their off-reservation properties of cultural and religious significance will be affected.  To be “meaningful” the federal agency must schedule a meeting with a tribal decision maker, during which the federal agency notifies the tribe of the proposed action and justifies its reasoning.  At that point, the tribe may issue a motion of support for the decision, or a rejection of the decision, pursuant to tribal law or procedure.  According to federal regulations, this consultation must “commence early in the planning process” – that is, before any decision is made or implementation plan is initiated – “in order to identify and discuss relevant preservation issues.”

This was simply not done in Imperial Valley, California – and, as an unfortunate result of the federal government’s carelessness, the Imperial project will likely never be.

To be clear, pursuant to the procedural laws at issue in Quechan, tribal consultation requires that the federal government respect the desires of Native Americans to be involved in decisions that affect them, but does not bind federal agencies to anything resembling a commitment to the application of tribal input.  The tribe can object to a project ad nauseum, but as long as the federal agencies follow the correct consultation process under the letter of the law the project will go on without a hitch.  So what’s the point?  Why does a tribe opt to evoke its consultation right at all?  As applied in Quechan, the purpose of the federal consultation requirement is largely twofold.


Tribal Sovereignty

First, the federal government has a duty to respect tribes’ position in the federalist system as sovereign nations.  A necessary aspect of tribal sovereignty is having the inherent responsibility to promote and protect the welfare of tribal people – including the right to protect cultural and religious properties and to be treated with respect by other sovereigns.  In fulfillment of this duty, beginning in the 1970s (yes, it took until 1970) the federal government initiated a slew of laws and dynamic government policies requiring that federal agencies interact with tribes on a government-to-government basis – as opposed to the pre-1970s model where tribes were treated as afterthoughts, if they were thought of at all.

Although tribes are still among the poorest minority groups in the Nation, pre-1970 it was much worse.  Once the self-determination era, as it is now named, came into effect, tribes began to see real improvements in not only their economies but also the welfare of their citizens.  According to research conducted by Stephen Cornell and Joseph Kalt, this is because exercising sovereignty through government-to-government relationships is a necessary element of sustainable tribal development.  As former Director of the Office of Indian Affairs, Regis Pecos, explains, “[t]hroughout history, the conceptualization of Indian policies has been driven by others and usually not for [tribal] benefit.”  Where the tribes “were not directly involved, even the most thoughtful and well-intended considerations often had unintended consequences.”

And what could go wrong usually did.  Indeed, a recent United Nations Report noted that as non-Indian investment projects in Indian Country come to fruition, “which may take several years depending on their characteristics, the concerns of indigenous peoples, who are seldom consulted on the matter, take a back seat to an overriding ‘national interest,’ or to market-driven business objectives aimed at developing new economic activities, and maximizing productivity and profits.”  But where tribes are treated as sovereigns – that is, given the ability to object to the actions of federal agencies and outside developers that affect their traditional lands – sustainable tribal development has a chance to thrive.  In this way, tribal governments have not only a right, but a fiduciary duty to tribal citizens to exert the consultation right when federal agencies fail to comply with the law.


Amicable Resolutions

Second, the consultation duty comports with the federal government’s general aspirations to foster a government-to-government relationship with tribes.  As embodied in President Obama’s 2009 Presidential Memorandum on Tribal Consultation:

History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results.  By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes.  Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.

For practical reasons alone, this type of relationship – as opposed to the complex and bifurcated relationship of the past – is mutually beneficial.  The fact is that, despite federal hubris otherwise since day one, Indian tribes know best how to manage their lands.  The Tulalip Tribes’ Snohomish Basin BioGas project exemplifies this contention.  By the 1970s, salmon stocks in the Tulalip Tribes’ traditional fishing waters plummeted to dangerously low levels, mostly due to the untreated cow manure runoff from local dairy farms.  Local farmers, blaming the tribes’ treaty fishing rights for restrictions on their ability to expand their operations, did not respond to the tribes’ concerns.  Eventually, however, threats of urban development convinced the farmers to consult with the tribe in order to form a collaborative effort to ward off urban encroachment that would surely sound the death knell for both fish and farms.  The solution: turning livestock waste into a salmon and fish friendly source of renewable energy.  Today, the tribal/farmer partnership, now known as Qualco Energy, runs a renewable energy plant that pumps livestock manure and associated wastes away from the farms to a nearby facility that uses anaerobic digestion to create methane, which is then used as fuel for electricity-producing generators.

Litigation in federal courts is drawn out and costly, and, for what it’s worth, rarely caries the desired results for either party.  As opposed to the adversarial model of yesteryear, many tribes are now building upon their legally enforceable consultation right to forge formal partnerships with federal agencies and corporate interests that advance mutual objectives.  In this way, the succeeding purpose of federal consultation is to nip valuation conflicts the bud before they arise.



Back to Quechan

It is thus that the conflicts alluded to in the media coverage of Quechan – conflicts that never actually existed – are almost ironic: the federal consultation obligation seeks to avoid these exact types of valuation conflicts by forcing tribes and outside interests to formulate plans of implementation that are mutually amicable.  In Quechan, this would likely have included the tribe pointing out areas that are very important to their members, and others that can be sacrificed.  Or, it may have led to the tribe leasing a portion of its reservation land to Tessera at a reduced rate in lieu of the project going forward on sacred lands.  Or, it may have meant that the tribe agreed to the exact plan proposed by Tessera and accepted by the BLM.


But none of that happened here, because the tribe was not adequately consulted.