Introduction

The National Congress of American Indians submits the following policy and procedural issues that are among the many concerns of tribal governments in evaluating the Department of Energy (DOE) Office of Civilian Radioactive Waste Management's (OCRWM) for the Draft Environmental Impact Statement (DEIS) for a geologic repository for the disposal of spent nuclear fuel and high-level radioactive waste at Yucca Mountain, Nevada Test Site.

Comments

1. The impacts of this federal action upon indigenous peoples, lands, and resources is critical to the human rights of the people to reside in their homelands. The NCAI does not believe that the impacted tribal governments of this federal action have had an ample opportunity to analyze and respond to the full inventory of technical studies performed at Yucca Mountain. This is not to say they have not received notice of the studies and progress reports done during the site characterization. Without exception, tribal governments in the Yucca Mountain region have not had the luxury of acquiring a team of technical experts to assess the data and conclusions. The DOE is well aware of the fiscal barriers which prevents tribes from assembling a research team. The NCAI believes the DOE has a fiduciary responsibility to provide the Yucca Mountain area tribes with resources that would enable them to respond to the Draft EIS.

The relationship between the federal government and tribal governments originates from treaties which were signed following the formation of the United States between these sovereigns. A guiding principle of the tribal/federal relationship is the legally enforceable trust responsibility of the United States to protect tribal self-determination, tribal lands, assets, resources and treaty rights, as well as carry out the directions of federal statutes and court cases. One of the intents of the federal guardianship is to mitigate the devastating effects of loss of lands upon which the tribal populations have lived for thousands of years. The obligations of the tribal trust doctrine are often perceived as burdensome to federal officials when embarking on federal actions which impact tribal governments and peoples. This is because of the government to government notice and consultation requirements necessary for federal guardianship can be time consuming, will cause delays in scheduling, and are added costs to the respective agency or contractor.

There are various points in the history of this country when individuals own up to misgivings and inaction of the federal government in exercising their responsibilities. For instance, the goal of Indian Reorganization Act of 1934 (IRA), 25 U.S.C. s.465, was to provide for the recovery of the Indian land base and reestablish tribal economic, governmental and cultural life: One of the IRA's principal authors, Congressman Howard of Nebraska, noted at that time, "...[T]he land was theirs under titles guaranteed by treaties and law; and when the government of the United States set up a land policy which, in effect, became a forum of legalized misappropriation of the Indian estate, the government became morally responsible for the damage that has resulted to the Indians from its faithless guardianship."

The tribes in the Yucca Mountain region still maintain close historic and cultural ties with the land. The total ecosystem is a living entity and the spirits and beings that dwell there to this day are still meaningful to them and as real and vivid as you and I and the people in this room. Many tribal people indigenous to the Yucca Mountain region have informed DOE officials that this area has special meaning and expressed opposition to the project.

The Draft EIS does not go far enough to address cumulative impacts which are likely results because of past present and future impacts from NTS activities. For instance, the DOE mentions a proposed federal action to return certain lands of the Timbisha Shoshone. An important factor left out regarding this return is that the land was subjected to years of radioactive fallout from the Nevada Test Site. The amount of radiation exposure experienced by the indigenous people residing in the area has not been assessed nor have any baseline health studies been conducted. The people still living in the area may have experienced significantly higher levels of exposure because of the many exposure pathways common to Native American peoples. The added impacts of long term releases from the transportation of radioactive waste and spent nuclear fuel can not be accurately calculated. The status of the Indian nation populations should give rise to a higher degree of assurance that they will be protected from increased exposures.

2. The status of the Indian nation populations should give rise to a higher degree of assurance that they will be protected from increased exposures. The Draft EIS does not go far enough to address cumulative impacts which are likely results because of past present and future impacts from NTS activities. For instance, the DOE mentions a proposed federal action to return certain lands of the Timbisha Shoshone. An important factor left out regarding this return is that the land was subjected to years of radioactive fallout from the Nevada Test Site. The amount of radiation exposure experienced by the indigenous people residing in the area has not been assessed nor have any baseline health studies been conducted. The people still living in the area may have experienced significantly higher levels of exposure because of the many exposure pathways common to Native American peoples.

The absence of previous exposure data also is important regarding impacts of long term releases from the transportation of radioactive waste and spent nuclear fuel. A true picture of potential impacts from transportation exposure can not be accurately calculated unless information from past Nevada Test Site releases can be added to the projected exposure data.

A joint NCI/CDC effort to assess human health impacts from bomb testing at the NTS is currently underway. The people whose homelands are near the Nevada Test Site were subjected to multiple detonations of atomic weapons. This project affirms what Native American peoples in the area have known for years--that radioactive fallout caused significant negative health impacts which includes chromosomal damage, debilitating diseases, and mortality.

Utmost protective considerations must be accorded to the people indigenous to this area. An apparent conclusion or response to the Timbisha land return issue may be that the reservation is being created well after the Yucca Mountain has begun, thereby absolving the DOE of its trust responsibility. Once again, the Timbisha Shoshone have lived there thousands of years prior to any encroachment or intrusion of federal actions.

The fact of primary habitation of indigenous peoples, whom the federal trust responsibility is to protect, is an important point in regard to the divergence of opinion of ground-water protection requirements. The Native American tribes and citizens are entitled to assess the viability of the water protection issues. The DOE acknowledges that further studies of impacts are needed along transportation corridors. The tribes do not have emergency response programs in place and are isolated from federal, or other other assistance in emergency situation. At the pace and funding level proposed by current DOE officials charged with delivery of emergency preparedness program planning for corridor states and tribes, when the shipments commence, even several years from now, it does not appear that tribes will be ready. Tribal governments will continue to have unmet needs and unfunded mandates.

3. The potential adverse impacts regarding transportation include cultural integrity, health, and economic considerations. The existing transportation routes and construction of new rail and highway infrastructure could destroy significant cultural sites. Even though mention is made that preconstruction surveys may occur, modification or relocation of these routes would not necessarily happen based on the Department's assessment of whether rerouting is "reasonable." Tribal importance of cultural integrity becomes secondary to the whims of DOE archaeologists and anthropologists, It is an important point that the archaeologists and anthropologists conducting the studies and surveys are non-Indian and, it is our understanding, not from the Yucca Mountain region.

The DEIS does not include information regarding Indian nations and their current and future economic development initiatives. Tribes along potential corridor routes are investing in tribal and joint economic ventures and which facilities will be along highway transportation routes contained in the DEIS. As part of the trust responsibility to ensure protection of economic well-being of Indian nations, the document needs to include a section of what can be done in the event of a radioactive waste transportation accident which impacts an Indian tribe as the mitigation and liability circumstances can be quite different than state and local government considerations.

4. The DEIS mentions Native American beliefs, working group input, and concerns. The document does not appear to incorporate the cultural beliefs into the analysis, which can only mean that the DOE does not accept the belief systems of the indigenous cultures. The DEIS also does not go very far in explaining the trust responsibility and how that will be carried out in the event of disagreement in project implementation. Although some of the problems may be guided by existing regulations and statutes, there are many instances of disagreement and need for consultation with tribal leaders and decision-makers regarding resolution of these differences. What shape and form the tribal consultation procedures will be and how executive orders on consultation will be implemented into the process are not included in the document.