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‘Indian country’ – more than just geography

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DENVER – Congress has plenary power over Indian tribes, and land extinguished as Indian country by Congress “cannot be resurrected as Indian country in the absence of congressional action,” it was argued in a crowded courtroom of the 10th Circuit Court of Appeals.

That issue and others were raised before an 11-judge panel convened Jan. 12 for a rehearing en banc at the request of Hydro Resources Inc. over the Environmental Protection Agency’s land status determination at HRI’s proposed uranium mining site near Church Rock in northwestern New Mexico.

A three-judge appellate panel in April 2009 upheld the EPA’s 2007 decision that HRI’s proposed in situ leach mine was inside “Indian country” as legally defined and therefore would be permitted and regulated by EPA and not the state, an assertion disputed by HRI.

Federal law defines Indian country as including reservation lands under U.S. jurisdiction, Indian allotments, and all “dependent Indian communities” in the U.S. whether in original or acquired territory.

The proposed leach mining operation would draw water from the same aquifer used by Crownpoint community for its municipal drinking water supply, it was contended at that time, raising concerns that contamination could affect Navajo people living nearby.

In situ leach uranium mining pumps water and chemicals into the groundwater aquifer, withdraws the solution and recovers the uranium. EPA would enforce drinking water standards and monitor water quality.

HRI argued that the EPA, New Mexico Environment Department, and the water board of McKinley County, N.M., where the mining site is located, had said the proposed mining operations would not impact the municipal water aquifer, and said that concerns should be directed at the permitting, not jurisdictional, process.

In contesting the Indian country designation of its mine area, HRI cited a Supreme Court decision that curtailed tax collection from non-Indians on Alaskan tribal lands where reservations had been eliminated, and said another, nuanced determination of what constituted a dependent Indian community had been supplanted by the high court.

The Navajo Nation, which supported EPA’s position, said all land within the boundaries of a federally recognized dependent Indian community is Indian country.

The parcel in question is east of Gallup within the boundaries of Church Rock Chapter (a tribal unit established by the federal government in 1950), has a predominantly Indian population, and is largely devoted to Indian use by the federal government, the court has said.

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EPA noted the mining site is “completely surrounded” by lands set aside for Indian use – a dependent rural Indian community that is part of the Church Rock Chapter and one in which some families have used the land for generations.

Mining ventures were drawn to mixed-use areas – checker-boarded holdings of trust land, Indian allotments, private ownership, state and federal lands, and others – when uranium prices were on the rise.

The proposed mine is part of a New Mexico portfolio that appears increasingly important to Uranium Resources Inc., HRI’s parent company, and is a joint venture with Itochu, a Tokyo-headquartered transnational.

The Church Rock mine would be the first of URI’s New Mexico developments which “are our future,” according to a company Web site, and which would produce 6 to 9 million pounds of uranium annually from the state.

None of three parcels “lies within the area generally recognized as constituting the Navajo Reservation,” it stated last year.

In the initial appeal, one of three judges dissented from the determination that the site constituted “Indian country” and expressed concern that jurisdictional uncertainty could occur in states “where Indian country consists of original allotments and/or trust lands interspersed with non-Indian land holdings.”

“Never before has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community,” said District Judge D. J. Frizzell.

The Diné Natural Resources Protection Act bans uranium mining on Navajo Nation reservation lands and the group Eastern Navajo Diné against Uranium Mining and the Church Rock Chapter have been among opponents of the mine.

Briefs supporting EPA, Navajo Nation and the court’s land status determination were filed by American Indian Law Professors of the University of Colorado School of Law, and by the Pueblos of Santa Clara, Sandia, Isleta and Zia in New Mexico. HRI was supported by the National Mining Association and United Nuclear Corporation.

The court’s decision will be handed down at an unspecified future date.