USA: A Wisconsin Tribe's Hallowed Sites at Risk

The Menominee are appealing to the power of grassroots opposition to stop an open pit mine

Mining Leaves a Wisconsin Tribe's Hallowed Sites at Risk

Brian Bienkowski

Environmental Health News - https://intercontinentalcry.org/mining-leaves-a-wisconsin-tribes-hallowed-sites-at-risk/

September 20, 2016

Guy Reiter was an archaeologist before he was an activist. But the two merged after a dream six years ago.

“I was in a van and when we drove by the White Rapids I looked over and saw an elder sitting on a dam, in full Indian regalia,” Reiter says. “He flagged me down, I climbed the dam, and he started talking to me in Menominee.”

Menominee is the language of Reiter’s tribe, the Menominee Indians of Wisconsin. The dam is on the Menominee River, where the history of the tribe begins.

“We were climbing down, and as soon as my feet hit the ground, I woke up, with tears in my eyes,” he says.

Reiter won't say what the elder said that brought such tears. The dream was a gift, not to be shared. “Anytime I get to experience ancestors is a real profound time,” he says.

But four months later, on an archeological trip in 2010 with other researchers from the College of Menominee Nation, Reiter saw the dam: It was indeed on the White Rapids, a former settlement site for the Menominee people.

Downstream from the rapids is the fight that has consumed Reiter's life since: A proposed open-pit copper, gold and zinc mine along the river on the Michigan side of the border. The Michigan Department of Environmental Quality this month announced their mining permit approval. There are still hurdles before shovels hit dirt—including a pending wetland permit and public comment period—but time is running out for the tribe.

The river and mine are both off the reservation. But the river and land around it remain central to Menominee culture.

That's the crux facing tribes across the nation today: Cultural resources—both on and off reservation—get sullied, destroyed, defaced by activities happening off reservation and forces beyond Native Americans' control.

The Sioux—and hundreds of other tribes—are getting headlines now, protesting the destruction of off-reservation cultural artifacts and the risk to water resources by a North Dakota oil pipeline. But as the Menominee show, tribes across the country are fighting similar battles.

“Unfortunately these problems didn’t occur overnight and the solutions won’t come overnight,” says Lawrence Roberts, assistant secretary of Indian Affairs at the U.S. Department of Interior.

“Sometimes it’s litigation or just working with state and local government so they’re fully educated about tribal rights,” he says. “In permitting and development it’s important to recognize tribes’ rights to hunting and gathering and fishing … that means protecting streams and sacred objects.”

That's hard to do. For tribes already beset by a host of social ills—poorer health, higher unemployment, greater alcoholism, even less plumbing than neighboring populations—such environmental injustices add further insult.

This is about far more than preserving sacred burial mounds. These injustices degrade the quality of life for Native Americans nationwide, tainting their traditions, and saddling their populations with illness and poor health.

Our six-month investigation into environmental injustice in Indian Country found tribes nationwide in a struggle to protect rivers that are cultural birthplaces, revered forests and outcrops that serve as spiritual retreats, plants that have been gathered centuries before reservations were invented, and the remains of their dead. These represent the last vestige of tribal freedom before artificial borders changed their way of life.

We also found successes: Tribal coalitions in the Pacific Northwest bringing the Native perspective into fisheries management; south-central U.S. tribal involvement in drought planning and climate change adaptation and the strong, unified tribal voice fighting for the Bears Ears National Monument in Utah.

The most recent example of this revival of Native pride—and rights—is a bit of windswept prairie that has become the flashpoint for Native American voice and culture: The Standing Rock Sioux tribe's fight against the Dakota Access pipeline. The pipeline, aimed to carry crude oil from North Dakota's Bakken fields to existing pipe in Iowa, would span four states, pass under the Missouri River a half mile upstream from the tribe’s reservation, and impact burial grounds and other culturally important sites.

Earlier this month, the same day a federal judge declined to halt construction, the Obama administration rescinded pipeline permits for U.S. Army Corps land at the Missouri River and called for a nationwide examination of the protection of tribal lands and resources.

“This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects," the departments of Army, Justice and Interior said in an unusual joint statement.

But while hundreds of tribes are gathered in solidarity with the Sioux at Sacred Stone Camp, the Menominee are waging—and losing—their fight in northern Michigan without that same national spotlight.

Menominee burial grounds left outside reservation boundaries may soon become islands in an industrialized, strip-mined landscape as three groups of mounds sit within the boundaries of the Back Forty project site.

The mine's tailings will sit 150 feet from the river; acid leaching from waste ponds could contaminate groundwater, the river and its fish. The tribe's reservation is about 80 miles away, across the state border. But its cultural headwaters are along the Menominee River, where Aquila Resources Inc., hopes to start digging.

With the mine on track for state approval, Reiter and other Menominee members are appealing to the federal government and the power of grassroots opposition in order to stop the mine.

“We don’t have a migration story like some tribes,” says Reiter, a member of the tribe’s Conservation Commission.

"Our story starts right there."

Off-reservation challenges

The Menominee held title to 10 million acres across northern Michigan and Wisconsin before encroaching settlers and questionable deals forced them to 226,000 acres 60 miles northwest of Green Bay. The waters of the Menominee remain an important part of their culture. But important decisions are controlled by Michigan. The feds are mostly out. And Michigan, just before Labor Day, announced its intent to approve the mine.

Tribes are sovereign under federal law. They deal with states and the feds in a government-to-government capacity. Certain aspects of preserving off-reservation resources have been clear: fishing or hunting rights, for example, on traditional lands, lakes and rivers, even in the off-season. But rights become opaque when disputes arise over aspects that aren’t readily tangible—especially the preservation of spiritual and historically relevant places.

A lot of this murkiness stems from the more holistic environmental perspectives from Native Americans, which doesn’t always jive with modern laws and regulations.

“When a waterway is polluted, for other communities it’s inconvenient: You can’t recreate, maybe you can’t go boating,” says Elizabeth Hoover, a Brown University assistant professor and researcher of environmental health and justice in native communities. “But for indigenous people that had a very specific relationship with that river, a kinship, to have that interrupted is a very different thing culturally.”

Brian Howard, a legislative associate at the National Congress of American Indians, says that for a lot of off-reservation development, specifically energy projects, “tribal consultations are happening after the fact” in an attempt to streamline permitting and approvals.

Howard cited a case in the Southwest where Apaches from the San Carlos Apache Indian Reservation, established in 1872 in Arizona, are fighting a proposed copper mine in the Tonto National Forest, which forms the western border of their reservation lands. The Apaches have long considered the Oak Flat area of the Tonto National Forest as hallowed. It also happens to have a lot of copper ore underneath it.

Last year mining company Resolution Copper got the ore, via a rider tucked into the 2015 National Defense Authorization Act. The language, inserted largely due to efforts from Sen. John McCain, R-Ariz., authorized a swap of 3.8 square miles in the Flats for company-owned land outside the forest. As a litany of federal environmental reviews take place, the Apache are stuck fighting as Resolution Copper burrows into the ground for exploratory drilling while awaiting approval.

“Congress mandated the land for the private company and then there was the awareness of the sacredness of the site,” Howard says.

In Massachusetts, two Wampanoag tribes—the Aquinnah and the Mashpee—fought the proposed Cape Wind Farm in the Nantucket Sound. The turbines, they argued, would block views of the first light, part of traditional ceremonies. The Aquinnah sued the federal government for not consulting the tribe under the National Historic Preservation Act. The lawsuit was consolidated with others, and they lost. The wind project, however, is still in limbo, mired in other litigation.

In Wisconsin, the Ho-Chunk Nation this year fought a state bill that would have removed some burial mound protections in the state. The bill failed to pass in April—a victory for Wisconsin tribes, but the ruling doesn’t impact the Menominee in their current fight, as their burial mounds lie unprotected across the border in Michigan, a further sign that 19th century boundaries don't work for indigenous tribes.

Just four years ago, in a case similar to the Menominee’s, the Keweenaw Bay Indian Community of the Lake Superior Band of Chippewa fought the Eagle Mine in Michigan’s Upper Peninsula—about 160 miles north of the Menominee reservation in Wisconsin—over pollution fears and its location near Eagle Rock, a spiritual gathering place for the tribe. They lost; the mine owners, Lundin, have been conducting exploratory drilling since.

In each case, the cultural relevance of certain areas didn't fit neatly into legal frameworks, checked boxes and permit requirements.

“We’re trying to change that,” says Roberts, of the U.S. Department of Interior. Just like states and counties, some tribes are just better equipped to analyze and tackle and organize around environmental issues, he adds.

For the Coast Salish tribes in the Northwest, unifying across both state and international borders has propelled Native interests to the forefront of political and scientific decisions made on the Salish Sea, a network of waterways in northwestern Washington state and British Columbia. The tribal coalition has become central to efforts to save and spur salmon stocks.

“For years it was fragmented jurisdictions: departments of water, departments of land," says Emma Norman, chair of the science department and Native environmental science program at Northwest Indian College in Washington state. "By fragmenting, state and federal agencies were losing the bigger context.”

“When the Coast Salish tribes came together they brought out the relationship to land, to the family, to ancestors, your unborn, future generations.”

The power of tribal unification can also be seen in Utah right now, where 27 tribes— the Bears Ears Inter-Tribal Coalition—have banded together to propose the Bears Ears National Monument on land where Native artifacts are subject to looting and tribes still graze cattle and hunt. President Obama is expected to make a decision on the monument under the Antiquities Act —the first time tribes have invoked the presidential act—before he leaves office.

“That’s our grandmas, aunts and uncles in that ground”

On an unseasonably warm day in May back in Wisconsin, Guy Reiter is in constant motion—answering calls, setting up meetings, honking and waving to friends, then switching gears in an instant and pointing to the history tucked into the inconspicuous forests and rivers of the reservation.

“I just love this place, man,” he says, tugging on his Green Bay Packers hat. He pulls the truck off to stop at Spirit Rock, a rock so central to Menominee that legend says when the rock crumbles away, the Menominee tribe will disappear. Reiter offers tobacco at the rock and bows his head in silence.

Next he pulls the truck near Keshena Falls on the reservation. Out on the bridge, the water rolls and swirls below him.

This is where Menominee members would come in the spring for sturgeon, he says. “It was a big deal after a hard winter.” Before dams interrupted the flow, lake sturgeon would migrate to the falls to spawn in the spring, providing much-needed calories for Reiter’s ancestors.

The Menominee now celebrate annually with a powwow and sturgeon feast with fish provided by the Wisconsin Department of Natural Resources.

Reiter’s ancestors traveled widely. Spirit Rock and the Keshena Falls are on the reservation, but the tribe also lived along the Menominee River, harvesting wild rice. And the mouth of the river, where it spills into Lake Michigan, 60 miles from the reservation border, is the center of tribe’s creation story.

The controversy sits near Stephenson, Michigan. Canada-based Aquila's proposed 83-acre open-pit mine —dubbed the Back Forty Project—would pull gold, zinc, copper and silver out of the ground along the Michigan-Wisconsin border. It would open a 750-foot-deep gash next to the Menominee River, the largest drainage system in Michigan’s Upper Peninsula.

The state of Michigan has met with and included the Menominee tribe as it reviewed Aquila's application, says Joe Maki, head of the mining division of Michigan's Department of Environmental Quality. But there’s a clear impasse. Tribal authorities say the state holds too much power and argue federal agencies’ ability to step in and protect tribal resources has been neutered through litigation.

“That’s our grandmas, aunts and uncles in that ground,” Reiter says.

The Menominee is a massive river system, making up the border between northern Wisconsin and Michigan's Upper Peninsula. More than 100 tributaries drain into it, a watershed covering 4,000 square miles. It supports large populations of bass, pike, walleye and spawning grounds for sturgeon.

Aquila has spent $70 million over the past decade figuring out a way to mine while protecting the environment. Water used at the mine and processing plant would be sent to a wastewater treatment plant then discharged to the river, or seeped into groundwater. Cliff Nelson, vice president of U.S. operations at Aquila, says they haven’t yet decided on what type of water treatment system but most of the water will be recycled and re-used. “The rest will be cleaner than rainwater before we’re allowed to discharge,” he says.

New tax revenue for the four-county area near the mine in a typical operation year is estimated at $20 million, according to a study by the University of Minnesota Duluth and commissioned by Aquila.

The same study estimates almost 250 new mine jobs, 1,330 construction jobs and royalties of more than $16.5 million. These jobs are far from the tribe, and would come from three counties in Michigan—Menominee (a different county from the tribe’s home in Wisconsin), Dickinson and Delta—and Marinette County, Wisconsin. All four counties are more than 94 percent white and all have unemployment rates between 5 and 6 percent—slightly above the national rate of 4.9 percent.

“People say there are not enough people here to fill all the jobs needed and they’re probably right,” Nelson says. “But our intention is to hire as many local people as possible.”

Aquila expects to pull 532,000 ounces of gold, 721 million pounds of zinc, 74 millions pounds of copper, 4.6 million ounces of silver and 21 million pounds of lead from the mine. The mine would have an estimated 8-year lifespan, Nelson says.

Alexandra Maxwell, executive director of the environmental nonprofit Save the Wild UP, says company documents hint at a longer lifespan, which would mean more time for potential pollution.

Nelson admits the total years for the life a mine could change if they find more resources. “Which would require getting more permits,” he says.

Maki, of the Michigan Department of Environmental Quality, says the agency’s goal is “a mine designed to close. We want them to make money but also leave behind a self sustaining environment,” he says. The current mine plan calls for about 23 years of Aquila cleanup, reclamation and monitoring after the eight-year life of the mine.

Maki and his team have the final say on state mines, and on Sept. 2 they said "yes." While the U.S. Environmental Protection Agency reviews permits to check for air emissions and water discharge red flags, no other federal agencies have to sign off. Aquila needs a wetlands permit from the state and to sit out a two-month public comment period. The state has to make a decision by Dec. 1.

Preservation Act neutered

Tribes fighting for off-reservation resources largely rely on two federal laws—the National Environmental Policy Act and the National Historic Preservation Act.

Neither guarantee protection. Both force officials to consider impacts upon historic and cultural resources before granting developers, such as mining companies, permits and access to resources.

Tribes can apply through the EPA to take water quality standards into their own hands, and currently 53 tribes (the Menominee do not) enforce such water standards. But such regulatory power is limited to waters on the reservation.

The National Historic Preservation Act, designed to protect anything that could be eligible for the National Register, lost most of its teeth 13 years ago when the National Mining Association took exception to the feds interfering in state and local permitting issues and sued.

The mining association won in court at the United States Court of Appeals in Washington, D.C. The case homed in on language in what’s called Section 106 of the act, which allows the federal agency to review projects and nominate properties for national and tribal registers, offering protection from potentially destructive development.

In the court case, however, the circuit court found that mining is a state-regulated activity, not federally funded or licensed, so the Council can’t intervene.

Before the case, the Council could have gotten involved in cases such as the Menominee’s, says Charlene Dwin Vaughn, assistant director of the federal permitting, licensing and assistance section of the Advisory Council of Historic Preservation Council, which enforces the Historic Preservation Act protections. Now, once state rules are in place, they have no say.

“The rug has been pulled out from under us,” she says.

Litigation isn’t the only route for Natives, says Al Gedick, a sociology professor at the University of Wisconsin La Crosse, who focuses on mining and Native American communities.

“Some of the most effective opposition comes from the public education and organizing process,” says Gedick, who knows a thing or two about organizing. Gedick has worked with Wisconsin tribes for decades protesting environmentally risky mining projects and advising them on holding on to land and resources guaranteed in treaties.“Changing that public opinion and highlighting the injustice … we’re going to mobilize communities all the way downstream,” Gedick says of the current mine fight.

There is a palpable change in the tribe as it gathers its voice against the mine, Reiter says. Speaking events, fliers, websites and new partnerships proliferate, but that’s only half the story: Tribal members have taken to days-long walks from the reservation to the Menominee River, tracing their ancestors' steps. They’ve re-seeded the river’s mouth with wild rice—Menominee is Algonkian for "People of the wild rice," and other tribes in the region said that when the Menominee appeared, wild rice followed. When they left, the rice passed.

The tribe has also reinstituted language programs at schools. The mine debate, Reiter says, has rekindled the tribe’s river roots.

It's a revival Reiter himself has lived. In rallying against the mine, he's learned from elders of the obligation to watch over the river.

“It’s pretty inspiring to see how those connections to the river are starting to come back,” Reiter says. “With this mine, if there is a good part, it’s making that connection again and speaking up for water, animals and trees.”

“We’re starting to get back in touch with our culture."