Udall lambastes BIA
Congressman: Agency has failed to uphold trust responsibility to tribe

By Kathy Helms
Diné Bureau

WINDOW ROCK — Though the Navajo Nation takes in portions of three states and their congressional leaders seldom hesitate to champion causes when it comes to doling out Navajo resources, only Rep. Jim Matheson of Utah and Rep. Tom Udall of New Mexico stood up for the Navajo people this week at a hearing in Washington.

Matheson and Udall have worked extensively to amend the Radiation Exposure Compensation Act to compensate Navajo uranium workers and victims of atomic testing, and their concern was obvious when they spoke Tuesday to the House Oversight and Government Reform Committee on the legacy of contamination and abuse brought on by federal government in the years uranium mining was in full swing across Navajoland.

“It’s interesting if you think about the environment in which all this started back in the 1940s when uranium fever really swept this country. Congress passed something called the Atomic Energy Act in the ’40s and created the Atomic Energy Commission. By one estimate, Americans went out and bought 35,000 Geiger counters in 1953 alone,” Matheson said.

“Native Americans became a big part of the effort to look for uranium supplies because of their knowledge of the land. But what should also be noted, back in the 1940s, is even then the government knew that folks were at risk involved in this activity.

“A U.S. Public Health researcher named Henry Doyle found in 1949 that Navajo workers were not given pre-employment exams and there were no medical programs for miners in those days. Adverse health effects to miners were already of concern at the time, to say nothing of the risks to the public and others in the Navajo Nation,” he said.

Matheson, son of a downwinder who lived in southern Utah during nuclear weapons testing at Nevada Test Site, said his father died when he was 61 of multiple myleoma.

“I have worked with Representative Udall extensively on looking at the Radiation Exposure Compensation Act and looking at the ways we ought to be amending that act and expanding it. The important thing about the Radiation Exposure Compensation Act is not necessarily the compensation, but it’s the acknowledgment on the part of the federal government that it did something wrong,” he said.

“Back in this euphoria of the ’40s and ’50s when the Atomic Energy Commission and uranium fever took over this country, a lot of mistakes were made. Folks in southern Utah were referred to by the Atomic Energy Commission as a ‘low-use segment’ of our population. For those of us who had families there, we didn’t really agree with that statement, much as the Navajo Nation doesn’t agree with that as well.”

Matheson and Udall have stepped forward in an effort to see that some of the mistakes of the past are rectified.

Following presentations by the U.S. Environmental Protection Agency, Department of Energy, the Nuclear Regulatory Commission, Indian Health Service and the Bureau of Indian Affairs, members of the House Oversight Committee, chaired by Henry Waxman, D-Calif., and Udall were allowed to question representatives of the federal agencies.

New information
Stirred by information presented by members of the Navajo Nation regarding contaminated land and water sources, abandoned uranium mines, and homes built of radioactive materials, Udall turned his attention to the BIA and its role in overseeing Indian tribes.

Jerry Gidner, director of the BIA, in his presentation to the committee, said the Office of Surface of Mining and the Department of Interior, in cooperation and with some assistance from BIA, did close numerous abandoned mines on Navajo and remediated physical safety hazards.

“BIA has been working for some time negotiating with the Navajo Nation, the Hopi Nation, and EPA on what to do about the Tuba City landfill, which has been contaminated by radionuclides from the Tuba City (uranium mill) site,” Gidner said.

“What we understand is that, over time, mine tailings were used in the Tuba City area. Over time, some of them made their way into the Tuba City landfill. We are remediating that landfill at present. Our role in these remediation efforts has been really very limited,” he said.

“And although we lack specific expertise in cleaning up uranium mines or uranium mill tailings, we do stand in position, ready to cooperate with the other federal agencies, with the Navajo Nation, and with anybody else that we need to, to advance this issue.”

Udall asked Gidner, “You’re the head of BIA, right? You’re very familiar with the trust responsibility that the federal government has to tribes, I’m sure.” Gidner responded in the affirmative.

“As you know, the trust responsibility is something that has existed for a very, very long period of time. The BIA is at the front of that, of looking out for the tribes. The trust responsibility was built around the idea that there were language difficulties and cultural difficulties, and the federal government was going to be out there looking out for the tribes,” Udall said.

Trust responsibility
“When you sit here today and listen to this first panel (Navajo) and hear this panel (feds) talk, how do you feel about the fulfillment of the trust responsibility? Do you think that you’ve fulfilled the trust responsibility of the federal government? How do you feel about that?” he asked.

Gidner responded, “I think that’s hard to say ... ”

Udall, agitated at the response, interrupted. “Hard to say? I would hope you’d be outraged! I would hope that you would stand up and say, ‘We’re supposed to be protecting these people. We’re supposed to be out there, on the line.’

“Have you asked any of these agencies to put money in their budget? Have you asked them to put money in their budget to remedy these contamination and cleanup problems of radioactive homes as the chairman has talked about?”

“No,” Gidner said.

“You know what, I can’t believe what I’m hearing,” Udall said. “Tell me if this is really true. This just absolutely amazes me. The BIA staff told the committee staff, our staff here, that you have no responsibility with respect to any aspect of this issue. That’s the position of your agency? This is the agency on the front line for trust responsibility. Is that the position of the BIA?”

Gidner told him, “I would disagree with that broad of a statement. But I would say with regard to this issue, I think you need to travel back in time. This started happening during the development of the nuclear weapons program, continued through the Cold War, and I don’t know what BIA’s role was ...”

Again, Udall interrupted. “Sir, wasn’t there a trust responsibility back during the nuclear weapons program? I thought the trust responsibility went back to the treaty era. We heard Mr. (George) Arthur say the treaty with the Navajo Nation was in 1868.

“So we’ve had 150 years there, where there’s a trust responsibility. Have you all fulfilled it? Do you feel you have fulfilled the trust responsibility to the Navajo Tribe with what you’ve heard today?”

Gidner said, “Well, I’ll return my previous answer, and I’d like to explain if I could. I think it depends, because the trust responsibility is not the responsibility only of the BIA, it’s the responsibility of the entire federal government.”

Udall said, however, that it was the BIA that was on the line. “You’re out there on the Navajo Reservation. A lot of these agencies don’t have people there on the ground.”

“Nope, that’s true,” Gidner said.

That being the case, Udall said he interpreted the trust responsibility to be “your folks on the ground. They contact you. They say, ‘People are living out here in radioactive homes. There’s serious contamination.’ What is your agency doing about budget issues? What are you doing to aggressively take care of this? Where was the BIA?” he asked.

Gidner told him, “When this began happening, we have to remember, the United States was gearing up its nuclear weapons program — and I just think we should all wonder about that.

“What would have happened if BIA, at that time, had said, ‘Sorry, you can’t mine uranium from the Navajo Nation?’ I think we’d still be having this hearing today, with all due respect, congressman. I don’t think BIA raising the trust responsibility argument would have gotten us very far,” Gidner said.

Growing more frustrated, Udall said, “Well, you know what the BIA could have done, sir? You know what the BIA could have done? My father has been involved in this issue for 35 years with a lawsuit and eventually got a law passed by Congress because those uranium miners were treated as guinea pigs.

“The federal government knew they were working in mines that were dangerous. They knew that they were going to get cancer. And guess what? The entire federal government is just like all of you sitting here. ‘Oh, you know ... ,’ going along merrily.

“If the BIA had spoken up then and said, ‘We have innocent people working in uranium mines and they are going down, based on scientific evidence, and based on the European experience where there were specific causes of lung cancer and you’re going to have people die — if one agency had stood up and said that, maybe, maybe, we would have prevented all of this tragedy and all of these folks here who have lost loved ones and breadwinners and it has put them further into poverty.

“Maybe that would have been prevented. But your version of the trust responsibility is what? I don’t understand it. What is your version of the trust responsibility? Why haven’t you been out there, saying something about this? I give up, Mr.Chairman,” Udall said.