Blast from the past
More than 40% of downwinders' claims denied

Operation Buster-Jangle was conducted at the Nevada Proving Grounds, later renamed the Nevada Test Site, in 1951. Here, a 21-kilatond bomb name "Dog" explodes on Nov. 1, 1951. [Courtesy atomicarchive.com]

By Kathy Helms
Diné Bureau

WINDOW ROCK — For Native Americans, there was no escaping the fallout resulting from atomic tests conducted by the United States in the 1950s and 1960s. Yet a half-century later, more or less, those who developed various types of cancers and other radiation-related illnesses still are trying to prove their cases.

Series of tests spawned radioactive clouds that crossed the reservations of Navajo, Hopi, Zuni, Ute and Ute Mountain Ute, as well as several pueblos in New Mexico including Laguna and Acoma.

Though Navajo was bombarded time and again, as of Sept. 25, out of 15,209 downwinder claims filed nationally, only 656 were from Navajo. Of those, 391 were approved while about 40 percent were denied.

About one-quarter of all uranium mined in the United States during the Cold War-era came from the Navajo Nation. Yet out of 7,548 total claims filed by uranium miners, only 1,925 were filed by Navajo, with 989 of those approved.

Claims filed nationally by millers totaled 1,319. Of those, 144 were filed by Navajo, with 92 approved; ore transporter claims totaled 299 nationally, with 17 filed by Navajo and six approved. Only one Navajo on-site participant filed a claim and was compensated out of 2,652 total participant claims.

But the law firm of Killian, Guthro & Jensen, P.C., of Durango, Colo., is hoping to improve those odds. The firm has been contracted by the Navajo Nation to lobby members of Congress in Washington for changes in the Radiation Exposure Compensation Act.

J. Keith Killian said last week that the law firm is aiming for at least six different changes in the statutes to improve compensation for Navajo downwinders and uranium workers, as well as for other Native Americans and post 1971 miners.

Killian said there should be thousands of additional downwinder claims, but those have not been filed due to difficulty of proving residency and disease, bureaucratic red tape, and inability to locate competent counsel.

“We are currently involved in a lobbying effort to modify the laws and regulations to permit Navajo tribal members to have more equality in the administration process. In addition, changes should be made to include the post 1971 uranium workers and core drillers. Also, the eligibility for downwinder claims, including the Trinity test site, should be broadened,” he said.

New Mexico currently is not included as a downwind state. Killian said they are hoping to have San Juan and McKinley counties added to the list of eligible counties for RECA claimants.

“If you’re a downwinder, you don’t get medical for downwind claims. If you’re dying because you contracted cancer as a downwinder, that cancer isn’t going to kill you any differently than if you were a miner,” he said. “So, why not give them the same compensation, the same medical coverage as you give uranium workers?”

Killian said there are a lot of legitimate claims that are held by Native Americans, including Navajos, that are difficult to prove. “They’re difficult to prove because they don’t have residency records,” he said.

“One of the things that we can do is allow affidavits — sworn statements — where people say, ‘This person lived here during this time frame, or this person worked in this mine and was doing milling and ore hauling.’

“Right now, the way it works, affidavits are allowed for miners, but not allowed for ore haulers or millers or downwinders,” he said.

Another goal is to gain compensation for Post-71 uranium workers. “One of our proposals is to extend the timeframe of coverage to 1990. Uranium was and still is a heavily regulated industry. It’s regulated by the government, so it’s in the government’s best interest to mine uranium, and since they’re regulating it, we don’t see there’s any difference between what happened before 1971 and what happened afterward.

“As a matter of fact, as a result of all this gearing up to do additional mining, we think that it’s best just to say there’s no timeframe. If you obtain a currently compensable disease — a cancer or respiratory disease, or a kidney disease easily related to exposure to radon gases or uranium — then you ought to be compensated,” he said.

Another logical extension of coverage relates to kidney disease, he said. “If you’re a miner, you can contract lung cancer or certain respiratory diseases such as silicosis or fibrosis and be compensated. If you’re a miner and you have a kidney disease, you can’t be. However, if you’re a miller and you have a kidney disease, you can be.

“The research out there, from what we understand, is such that miners can get kidney diseases and do, just as easily as millers.”

Killian also is looking at changes in exposure qualifications. “Let’s say you have limited exposure as a miner and limited exposure as a miller, and you don’t meet the criteria under either one of them. If you combine them, you would meet it,” he said.

There is also the issue of double exposure as a uranium worker and a downwinder, particularly for Navajos in Arizona. “If we can’t qualify them as a miller or ore hauler or a miner, then we’ll try to qualify them as a downwinder.”

It’s possible that some Navajos, theoretically, could qualify for all four — downwinder, miller, ore hauler and miner — and not be able to prove any of them, he said. That’s how difficult sometimes it can be.”

A technicality that many people don’t even come close to comprehending, Killian said, is that exposure for Navajo uranium workers in the 1940s and 1950s was determined by the amount of money earned as constructed by the government.

“Let’s say you worked for two years in a mine. They construct a wage for you — let’s say $2 an hour, and let’s say you were actually making 75 cents an hour. Then, what they do is they say, ‘Well, this person earned $3,000 in one year and $2,000 in the next year.’

“So we construct their wage by assuming they worked 40 hours a week at $2 bucks an hour, and we say the exposure they have is not consistent with any of those months. Therefore, you don’t qualify because you didn’t earn enough to prove that you worked enough to prove that you had exposure enough.

“When in reality, the person was making less and there’s no way we can use an affidavit to prove that they were earning that little because affidavits are only permitted for miners. If they were a miller, for instance, then you couldn’t use the affidavit.

“So you’ve got a real bizarre scenario here where the government constructs your exposure by the amount of money you earn. But if you’re underpaid or paid under the table — many of them were — then you’re not going to be able to prove your claim even though you’ve got the disease and you worked for two years.”

However, he said, if you’re an Anglo living in Salt Lake City who had Social Security withheld from the mine and you’ve got a disease and you’re on your death bed, then you can prove it. “But most of the claims that are existing today are not like that. There are many of them that don’t have Social Security records.”

Several years ago, all RECA claims were compensated on a contingency basis at 10 percent, Killian said. “So if you got someone $100,000 — you proved it for them — they got $90,000, the attorney got 10 percent. So what happened was the law was changed to reduce it to 2 percent on an initial claim and 10 percent on a denied claim.”

The problem with that, he said, is that potential clients now are having problems finding attorneys to represent them. “We have to take cases that are pretty clean because we can’t spend hours and hours and hours on a case that we’re going to make $2,000 on,” he said.

Downwind claims are worth $50,000. “An attorney gets paid $1,000 to prove an impossible case. You just can’t do those cases,” he said.

“There really ought to be a compensation schedule that would allow attorneys to represent these people who have difficult claims to prove, because what’s happening is they’re dying without representation. They just don’t get compensated.

“So, I think, the bad intent, if you will, was to write the statute in a way so that attorneys would not be involved and so there’s only a handful of attorneys across the United States that do this. There are many of them who are representing widows whose husbands died years ago and they’ve lost the records. You can’t easily find the medical records, and you need affidavits to prove it.

“You have to put your butt in the chair and start making phone calls and work your butt off to get those claims proven and you can’t do it for $1,000. And look — they knew this,” Killian said.

“Lily Tomlin has a quote I like to throw out there, and she said: ‘No matter how cynical I am — it’s not enough.’ ”