The Role of Indian Tribes in the Safe, Secure, and Routine Transportation of Spent Nuclear Fuel and High-Level Radioactive Waste - 19463
Far too often federally recognized Indian Tribes are the last stakeholders invited to the table to discuss a particular issue with potentially wide-ranging impacts. Indian tribes were the first governments on this continent. With respect to the future transportation of spent nuclear fuel (SNF) or high-level radioactive waste (HLW), Indian tribes are potentially impacted in a myriad of ways: economics, cultural, environmental, health and safety. Yet few regulators fully understand and appreciate the legal and political standing of Indian tribes. This paper will examine the ways in which Indian tribes must be involved with the planning for safe, secure and routine SNF and HLW shipments and the ways in which the federal government is obligated to involve tribes. Indian tribes are similar to states in that they are responsible for the health and safety of its members (which they themselves define). Tribes, like states, make, implement, interpret, and enforce laws, and provide public services - healthcare, public education, social services, drug treatment, public safety and emergency management, transportation, managing natural resources, public housing, and environmental and cultural preservation. Many tribes also operate economic enterprises - manufacturing, farming, forestry, and gaming. The most basic principle of Indian law is the principle of 'sovereignty,' that is, an Indian tribe possesses all the powers of any sovereign state. Tribal governments are not subject to state or local jurisdiction but are subject to federal jurisdiction. The tribes enjoy a government-to-government relationship (and expectation) with the federal government (i.e., agencies, like the Department of Energy, the Nuclear Regulatory Commission). Of paramount concern to Indian tribes is the doctrine of Trust Responsibility, the general principle that the federal government's conduct 'in dealing with the Indians should therefore be judged by the most exacting fiduciary standards.' With respect to SNF/HLW this means that the federal government has an obligation (or a Trust Responsibility) to ensure that tribal people, lands and resources are protected. Equally important is the expectation that federal agencies will work with the Indian tribes on a government-to-government basis before undertaking any action with potential negative consequences on the tribe's people, land or resources. The concept of government-to-government consultation between Indian tribes and the United States is long standing and well recognized. As expressed in Executive Order 13175, 'Consultation and Coordination with Indian Tribal Governments': 'Consultation - Each federal agency must have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.' The purpose of consultation is to ensure that Indian tribes are consulted before government officials make decisions that may have an impact on their lives and territories. The three agencies involved with SNF and HLW transportation - the US Department of Transportation (DOT), the US Nuclear Regulatory Commission (NRC), and the US Department of Energy (DOE) - have had various degrees of success with respect to direct consultation with Indian tribes. Given that there is plenty of lead-time before the first shipments commence, there should be ample time to develop a strategy for ensuring that tribes are equal partners when planning and preparing for shipments of SNF and HLW to the first interim storage facility. (authors)