Two members of the Tribal Radioactive Materials Transportation Committee (TRMTC), Prairie Island Indian Community (PIIC) (located 30 miles southeast of the Twin Cities, Minnesota) and the Mashpee Wampanoag Tribe (located in Mashpee and Taunton, Massachusetts), were featured in recent news articles highlighting their efforts to put additional lands into trust or retain reservation lands, respectively (trust lands are lands held by the federal government on behalf of or for the benefit of a Tribe or tribal members). For the Mashpee Wampanoag Tribe, a multi-year battle over the Tribe's reservation lands was formally decided in December 2021, when the U.S. Department of Interior issued a decision confirming the legal status of the Tribe's reservation lands. For PIIC, the Tribe is currently in the process of requesting that Congress put additional lands in trust. This additional land – 1,200 acres located 35 miles from PIIC's current location – was purchased by PIIC in 2018, and in 2019, Congress introduced the Prairie Island Indian Community Land Claim Settlement Act (H.R.4752), which sought to put the land into trust; the bill is currently awaiting further action.
Each Tribe's efforts to retain, preserve, or expand tribal lands has implications for the transportation of radioactive materials. While the U.S. Department of Energy (DOE) has worked with tribal nations for numerous years on the transportation of radioactive materials, that work has focused on the reservation land of each Tribe. Tribes maintain that the coordination, emergency response planning, and other aspects of radioactive materials transportation should also apply to lands held in trust and for land that has cultural and historical importance. In addition, as Tribes seek to regain or maintain land of historical and cultural importance, such as in the PIIC and Mashpee Wampanoag Tribe examples described above, more of their land is likely to encompass highways, waterways, and railways that may carry radioactive materials shipments.
The increase in trust lands and the implications for DOE's engagement with Tribes derives from the federal government's trust responsibility. The federal government's trust responsibility states that the federal government has "moral obligations of the highest responsibility and trust" (Seminole Nation v. United States, 1942). Furthermore, it is a legally enforceable fiduciary obligation of the federal government to protect tribal treaty rights, lands, assets, and resources.
Trust responsibility extends beyond geographic boundaries and therefore is not restricted to reservation lands or other lands held by Tribes (or on behalf of Tribes) (see Congressional Research Service's Tribal Lands: An Overview for additional discussion of types of tribal lands). When applying the trust responsibility to radioactive materials shipments, the federal government is required to protect tribal lands, resources, assets, and people. While trust responsibility is often understood to apply only to reservation lands of federally recognized Native American Tribes, Tribes often retain treaty rights or rights on other lands (such as ceded lands) or waterways that may extend to religious, cultural, or fishing/hunting/gathering rights. For instance, these may include (but are not limited to) the right to fish, gather, or hunt for ceremonial, commercial or subsistence purposes at usual and accustomed places. Tribes have expressed their concern that an accident involving spent nuclear fuel or shipments of other radioactive materials could negatively impact these vital resources and culture.
A priority for TRMTC in planning for radioactive materials shipments is to work with federal agency partners, such as DOE, the U.S. Nuclear Regulatory Commission, and the U.S. Department of Transportation to expand federal agencies' awareness, and if necessary, their definitions of tribal lands, beyond that of simply reservation lands. Other lands that could be considered in transportation planning may include trust lands, sacred sites, or traditional cultural properties, for example. Expanding awareness of this issue more broadly is important for the continued success of current shipping campaigns and for the success of potential future shipping campaigns. As Tribes seek to regain land, it will be important for DOE to be aware of changes to tribal boundaries which could expand to include highways, waterways, and railways that carry radioactive materials shipments. TRMTC plays an essential role in DOE's transportation planning in helping raise awareness with DOE officials about the changing circumstances of individual tribal nations and the implications for planning for the transportation of radioactive materials.
by Richard Arnold (CGTO/Pahrump Paiute Tribe), Nelson Andrews, Jr. (Mashpee Wampanoag Tribe), Heather Westra (Prairie Island Indian Community), and Lauren Rodman (North Wind)
