Quapaws sue Tar Creek polluters

QUAPAW, Okla. - The Quapaw Nation has signed with New Orleans attorney Allan Kanner to file a multi-billion dollar suit against the mining companies that turned Quapaw land into the heavily contaminated Tar Creek Superfund Site. The site has remained an environmental and health hazard for three decades.

Tribal Chairman John Berrey is very excited over the litigation. "We're about to file a huge lawsuit, a natural resource damage act," Berrey said. "It's the tribe against the last liable mining companies. They have billions of dollars in assets, collectively, and we believe that the courts will award us a large chunk of money for clean up, for medical monitoring, and to compensate some Quapaw individuals for the legacy that the mining companies have left at Tar Creek. Allan Kanner came to us on his own. It seems to us that if anybody can do something he can do it. We think the judgment will be billions, but the court will define that for us."

In 1983, the 40 square-mile Tar Creek Superfund Site made the National Priorities List. The site encompasses parts of Oklahoma, Kansas, and Missouri, but the most infamous section is in Oklahoma's Ottawa County, including the towns of Picher, Cardin, Commerce, North Miami, and Quapaw. Much of the effected land belongs to the Quapaw people. The mining and milling of lead and zinc ore, from the 1920s - 1970s, left approximately 300 miles of underground tunnels and millions of tons of tailings/chat (toxic waste) which are deposited in hundreds of piles and sediment retention ponds near the residential communities. Some piles are as high as 200 feet. As a result the government has identified the area as having both health problems and an economic crisis, as many major employers have left the area.

Kanner spoke with Indian Country Today about the history of the site and the upcoming lawsuit, which he says will be filed in the next three weeks. "Superfund was passed in 1979 at the end of President Carter's administration. It focused on the really bad waste and Tar Creek was number one in the nation. "The politicians passed this law, but they never really provided the funding for it. Reagan got in and cut all the funding for the Environmental Protection Agency. So we have this great law which the government can't enforce. That's why they've turned the investigation over to the polluters, which is like asking Al Capone how much money was taken in the bank robbery, and would he please give it back," Kanner continued.

What's been going on for the last 30 years is not a 'clean up' but planning for 'site remediation,' which is planning for site management of waste; if someone is living there can we cover it or keep it from spreading? Damage resource management skips all of that with remediation."

Kanner has so much faith in the case that he is working on a contingency basis. He sees this as only the beginning of many tribal suits over tribal resource damages. "For years, everyone has said that you have to study it because it's such a mess," Kanner said. "Study is a scam by polluters. We all believe on one level that more information is better than none, but when you have a $100 billion problem and you can get away with a $1 million study every year, you're way ahead of the game. "A lot of the studies have been on risk management, in other words, ways to leave it out there without really solving the problem. We are setting a goal of restoring the property to its ecological base line, pre-pollution. That's something everybody understands.

Under Superfund, we have a right to do that, and we can make the polluter pay for it. In addition, we are going to have a class action for medical monitoring for the children, because the children have to play around the chat piles. We're also going to have a class action for private property rights, plus a tribal suit for tribal resource damages."

With the piles of toxic chat covering the area, Pitcher has been referred to as "hell." Kanner takes the metaphor a few steps further in describing the situation. "It's even worse than being in hell, because you're right next door to heaven," the attorney said. "I was flying over 'hell,' the Indian land where the mining companies left all the chat piles, and when you go to the other side of the tribal lands, to the white-owned lands, they restored it; it's all green. So the only thing worse than 'hell' is knowing it was totally avoidable, knowing the guy next door, who happened to be white, got a better deal. Now, after waiting around in hell for 20 or 30 years, the Quapaws have said 'we're going to get this done.'"

When asked about selling chat, which is often thought to be valuable, Kanner says that is a myth among the Pitcher community. "You can sell chat, but basically it's a hazardous waste. If chat is so valuable, why did the white guys next door, who also could have kept the chat, opt for restoration? Every contract, except this one, has the duty to restore the land at the end of the life of the mineral lease. Why wasn't it here? As we learn more about the lawsuit over the Department of the Interior's breach of trust in the Cobell v. Norton case can we believe that they only screwed up monetary accounts? This is an example of that. The exploitation of natural resources in Indian country is a well-known story. The story that is not known is that the tribes have power, under the law, to do something about it. "

Kanner will be holding a seminar for tribal leaders who are facing environmental issues in Albuquerque, N.M. on Oct. 24. For more information, contact Kanner's office at (504) 524-5777.