Native American communities across the country have experienced numerous hardships over the course of the pandemic, ranging from limited access to medical care and other basic needs to extreme isolation for the most vulnerable members. The impact on student education will be felt for years in the future no matter where students sheltered in place, and it will be especially recognizable in rural areas where geographic and social isolation have always created barriers for students. Lack of access to technology limits one’s ability to complete assignments and limits access to other resources such as classroom instruction and tutoring services. Amid the shelter-in-place orders, students have faced many barriers like this that are crucially tied to academic performance. Recognizing the historical and social factors that have exacerbated the impact that Covid-19 has had on Native American students is essential to understanding why there have been such disproportionate effects compared to the rest of the country.
With New Mexico already facing some of the lowest rates of broadband access in the country, Native American families encountered particular struggles to adapt to stay-at-home guidelines. Lack of access to broadband and Wi-Fi services was a primary concern. In 2018, the
Federal Communications Commission estimated that roughly 35% of individuals living on tribal lands in the United States lacked access to broadband services compared to only 8% of Americans in the rest of the country. Reasons for this may include costs of Wi-Fi services, limitations on digging within historical areas on reservations, and the physical structure of adobe homes in rural communities. According to the New Mexico Public Education Department, “as of April 10, 2020, approximately 23,398 Native American students were in need of broadband capabilities and devices.” Many students thus had to find other ways of submitting assignments and attending classes.
To stay on top of assignments, students have reported writing and submitting papers on their cellphones or doing assignments by hand and submitting photos. There are also reports of parents driving their children to libraries, restaurants, and other, sometimes very remote, locations to have access to high-speed Internet. Most students were initially able to engage in distanced learning through cell phone video services, however, limited data and call minutes removed that as a permanent solution. Some students are reported to have taught themselves lesson material where they had no other resources to learn. The severity of the situation is elevated by the limitations on access to basic needs such as clean water, food, and adequate medical attention. Native communities were impacted at much higher rates than other demographics in the country and it is important to understand some of the systemic factors that caused the pandemic to exacerbate problems in Indian Country to such a great extent.
The disproportionate impact that Covid-19 had on Native communities, compared to that of other demographics, laid bare the “historically embedded structural vulnerabilities” that have impacted student access to technology in Indian Country. Tribal land status and infrastructure limitations are two major factors that lie at the heart of the issue. According to a 2020 study by the University of British Columbia, “[t]ribal land status is also related to the lack of Internet access as Tribes have unique geopolitical and geophysical terrain influenced by colonization, cultural practices, sovereignty and Tribal governance.” Access to Internet services is highly dependent on Tribal sovereignty and is limited by “external obstacles such as federal policies, statutory and regulatory requirements, and historically overlooked and underfunded Internet infrastructure.” The study explored five “historically-identified vulnerability” variables, which have contributed to the disproportionate impact of Covid-19 among Native Americans. The five variables include “percent of housing units without telephone, percent of housing units without Internet, percent of housing units without complete plumbing, Tribal land status, and presence of abandoned uranium mines.” The barriers to student education throughout the pandemic must be understood by recognizing the impact of historical racism that has created the structural vulnerabilities that Native American students have had to contend with in socially distanced learning.
Native American students living in rural parts of the country have had to endure some of the greatest challenges to receive an education compared to students in the rest of the country. Broadband access and infrastructure continue to create barriers to student access to technology and education as well as other vital health services in tribal land. As a result, students have been forced to adapt in all sorts of ways to stay on top of schoolwork and attend remote classes. If there is any hope of creating the systemic change necessary to make educational resources more available for Native American students, it is essential to understand the factors that have created these barriers to access including the destructive impacts of federal policy and Western cultural practices.
Uranium and uranium mining have been a constant force in my life. Three years before I was born, on July 16, 1979, a uranium mill tailings pond ruptured at the United Nuclear Corporation (UNC) uranium mining operation in Church Rock, New Mexico – 40 miles upstream from my hometown of Lupton, Arizona on the Navajo Nation. The tailings pond released “94 million gallons of [highly acidic] mill waste fluids and 1100 tons of tailings solids,” including “uranium-238, thorium-230, radium-226, lead-210 and polonium-210” into Pipeline Arroyo, a tributary of Puerco River. Additional released contaminants included “elemental lead, molybdenum, arsenic and selenium,” “acidity,” and “high levels of dissolved salts, particularly sulfate.” Adding insult to injury, the rate at which the waste traveled was helped along by a “flow of 5000 gallons per minute of water continuously pumped into Pipeline Arroyo by routine dewatering operations at [further] upstream uranium mines.” The flow eventually ceased near Chambers, Arizona, “100 river miles downstream from the UNC mill.”
The incident is now known as the Church Rock Uranium Mill Spill of 1979. It is “the largest single release of liquid radioactive waste recorded in the United States and the fifth largest release of solid radioactive waste.” It is also likely one of the quietest large-scale radioactive spills to occur in the United States. Lupton community members cannot recall being fully informed of the dangers posed by the radioactive material, and scientific research regarding the impact to health and the environment was not reported to them.
On October 22, 1979, the House Subcommittee on Energy and the Environment of the Committee on Interior and Insular Affairs held an Oversight Hearing on the “Mill Tailings Dam Break at Church Rock, New Mexico” in Washington, D.C. Both the Subcommittee and the Committee were chaired by Representative Morris K. Udall from Arizona. In the Chairman’s opening statement he declared, “our concern for these matters derives from three areas of the Interior Committee’s jurisdiction, dam safety, on which we have legislated; Indian affairs and finally regulation of the nuclear industry.” The subcommittee consulted “Dr. Bruce Tschantz, a dam safety expert and professor of civil engineering at the University of Tennessee” to review “pertinent engineering assessments and licensing materials.” Dr. Tschantz found issue with the proposed dam materials, the dam design, and surmised that the quality assurance procedures detailed in the design plan were not followed. The Army Corps of Engineers also submitted a report for the hearing, which comported with Dr. Tschantz’s assessments and highlighted three key findings. The report found that the planned buttress of tailings against the dam for reinforcement was never completed, the dam was showing signs of cracking in 1977 and 1978 but State regulatory authorities were not notified by the company, and “the design of the dam did not incorporate all the necessary protective measures recommended by the company’s engineering consultant.”
Shortly after the spill, the “subcommittee held an oversight hearing on the Nuclear Regulatory Commission’s agreement States program, under which the State of New Mexico is permitted to license tailings impoundments.” It found “significant problems” with both the management of the program by the federal commission and the state’s technical and regulatory capacity. Therefore, as stated by the Chairman, “at least three and possibly more Federal and State regulatory agencies had ample opportunity to conclude that such an accident was likely to occur.”
At the time of the hearing, the total cleanup completed by UNC was less than one percent and UNC was facing a number of problems. Mr. Paul Robinson, environmental analyst for the Southwest Research and Information Center remarked that, in addition to UNC’s inability to build and operate to the standards they were licensed at, they miscalculated the amount of tailings they could back-fill and were left with excess tailings, which hold 85 percent of the original radioactivity. Mr. Frank E. Paul, Navajo Vice-Chairman, remarked that “a smaller incident at Three Mile Island commanded a Presidential Commission. Yet today’s hearing represents the first serious national concern for this incident, and it is now over 3 months since the dam failed.”
A post-spill summary report by the State of New Mexico Health and Environment Department’s Environmental Improvement Division found that “the dewatering effluents and natural runoff that now dominate surface water flows contain environmentally significant levels of radioactive lead, radium and uranium, as well as elemental lead, selenium and molybdenum. [ . . . ] Most of these substances come from uranium mine dewatering effluents.” In other words, UNC and other mine operators in the Church Rock area were using the Puerco River as a radioactive dump for years.
An additional aspect described in New Mexico’s report was the land ownership pattern along the Puerco River. “Checkerboard” is a swath of land containing a mixture of property types all within close proximity of one another. The land UNC leased for its mill and tailings pond was categorized as “fee simple” land, owned by non-Indian lessors, and it was not considered reservation land.
Kee Joe Benally, a well-regarded community member from Lupton, attempted to sue UNC Resources, Inc. in Navajo Tribal Court. Benally had the support of the Navajo Tribal Council via legislation passed on February 13, 1980, expanding the civil jurisdiction of the Navajo Nation Courts to include civil actions “in which the defendant is a resident of Navajo Indian country, or has caused an action to occur in Navajo Indian country.” Unsurprisingly, the District Court of New Mexico held that:
Navajo Tribal Court jurisdiction over non-Indian civil defendants necessarily involves the tribe’s external relations, and it is not a power needed to protect tribal self-government because the tribal government has always been able to function without it. Such jurisdiction is therefore not part of the tribe’s retained sovereignty.
Accordingly, the Navajo Tribe had no jurisdictional authority to take matters into its own sovereign hands. Upon issue of judgment, UNC opportunistically requested a declaration of non-liability as a tortfeasor, which the court refused.
The New Mexico post-spill summary report noted three potential human contact mechanisms: “[w]ater-borne contaminants in the Puerco River may infiltrate into the ground and impair the quality of shallow ground water[,] because groundwater moves slowly, such degradation could remain undetected until a private well is affected.” Second, “[l]ivestock could ingest contaminated sediments by drinking water from the Puerco River,” resulting in long-term exposure, which then could be consumed by people. Third, “[c]ontaminated sediments [ . . . ] may be suspended as dust and inhaled by local residents or deposited on vegetation and consumed by livestock.”
In 2000, the Navajo Nation requested that the United States Environmental Protection Agency take the lead on the Northeast Church Rock mine cleanup, as it is identified today. USEPA and United Nuclear Corporation (acquired by General Electric) continue to work together to complete federal administrative processes and enforcement protocols. According to USEPA, as of January 2020,
200,000 tons of contaminated soil has been removed from the residential area and brought back to the mine waste pile. The mine waste pile has been temporarily covered and stabilized until it can be removed. [ . . . ] In September 2018, UNC/GE (General Electric) submitted a request for a license amendment (which includes the completed design) to the Nuclear Regulatory Commission (NRC) to build a repository for the NECR mine waste at the UNC Mill Site. NRC is currently reviewing the request.
The USEPA has identified a boundary for the Northeast Church Rock mine that does not include the Puerco River, despite the dewatering practices that were exercised during the mine’s operation from 1967-1982. Common arguments against a cleanup of Puerco River include: naturally occurring uranium as the source of environmental contamination, high cleanup costs, and low population in the affected areas. However, the Comprehensive Environmental Response, Compensation, and Liability Act defines facility as “any site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located . . . .” According to the federal statute, the Rio Puerco is part of the Northeast Church Rock mine facility.
As New Mexico Senator Tom Udall stated in his opening remarks as Chair of the Senate Subcommittee on Children’s Health and Environmental Responsibility, “regardless of our personal beliefs about nuclear weapons, nuclear power or future uranium mining, everyone should agree the Nation and the companies that profited from uranium development owe a debt to communities with legacy contamination and that can only be paid in full with a complete cleanup.”
If you are interested in learning more about the progress of the Northeast Church Rock mine cleanup, the US EPA has a comprehensive website where it continues to report on the progress of cleanup at this and the hundreds of other abandoned uranium mine sites and features left on the Navajo Nation today. You may also contact Ms. Priscilla Tom, the community coordinator for Northeast Church Rock mine, with any questions pertaining to the site cleanup. There are non-government organizations that are also doing important work to develop a strong case, such as: the Navajo Birth Cohort Study, conducted by Dr. Johnny Lewis; the Red Water Pond Road Community Association; Former Navajo Nation Council Delegate Jonathan Perry with Eastern Navajo Diné Against Uranium Mining, in partnership with the New Mexico Environmental Law Center; Dr. Tommy Rock (Diné); Ms. Leona Morgan; and many others.
Lastly, and most importantly, let us acknowledge the countless beings, human and otherwise, who have been affected by uranium mining and exposure to hazardous materials. The injustice at the hands of unscrupulous businesspeople and the United States federal government; perpetuated by the former, is not right. Even though the work is emotionally laborious and change is slow, we will keep striving to move forward.
 “Mine tailings dam. An industrial waste dam in which the waste materials come from mining operations or mineral processing. It is usually built in stages over the life of the mine. The waste products are often conveyed as fine material suspended in water to the reservoir impounded by the embankment.” U.S Department of Labor Mine Safety and Health Administration, MSHA Handbook Series Handbook Number PH21-V-6, A9-6 (January 2021).
 Jere Millard, Bruce Gallaher, Davis Baggett & Steven Cary, New Mexico Environmental Improvement Division Health and Environment Department, Summary Report of the Church Rock Uranium Mill Tailings Spill: A Health and Environmental Assessment 1 (1983).
Oversight Hearing on Federal Actions to Clean Up Contamination From Legacy Uranium Mining And Milling Operations Before the Subcomm. on Child. Health and the Env’t Responsibility of the Comm. on Env’t and Pub. Works, 112th Cong. (2011).
The threat posed by fracking to the archeological ruins of Chaco Canyon has garnered international attention and nationwide advocacy, resulting in a protective ten-mile buffer zone between fracking activities and the National Heritage Site. Equally deserving of protection, Navajo Nation Council Delegate Daniel Tso gently chides, is the living culture: the Navajo people themselves. Tso is the Council Delegate for the easternmost part of the Navajo Nation, which includes Counselor, NM. He has been conducting what he calls “Fracking Reality Tours” from the Counselor Chapter House for over six years now. The tours give outsiders a small window into the lives of those who live next to fracking operations yet reap little or none of their benefits. Far away from the Navajo Nation’s governmental headquarters in Window Rock, Ariz., Tso feels that sometimes he has to leverage the help of outsiders to gain the attention from his government that such issues warrant.
Tso begins his tour at the Counselor Chapter House with a lecture on the history and leasing practices of the oil and gas industry on the Navajo Nation, and is joined by Samuel Sage, Counselor Chapter Administrator. Tso tells us that many elderly Navajo believed they were signing merely an exploratory agreement for a traditional kind of oil well. While the word “exploratory” may be a term of art in the oil and gas industry, its plain meaning connotes something less than full-scale production. Few Navajo lessors anticipated the level of production they unwittingly permitted, or the invasive techniques of horizontal drilling that modern fracking uses. Many were signed by elders who did not read or write English, who were given leases six pages long with language that was not translated or explained. Tso asserts that lessors had no legal counsel.
According to the Western Landowners Alliance, “[m]ost initial offers to lease by oil companies are of a ‘low ball’ nature with room for negotiation, and contain many onerous terms to the landowner.” The Alliance counsels against the acceptance of “fast money,” which “could result in disastrous consequences for the mineral owner.” They recommend the assistance of specialized oil and gas lawyers, who can recognize and help landowners avoid oil and gas leases such as the “Producer’s 88” form, which is usually “typed in a miniscule and essentially unreadable font” and are “usually drafted much more in favor of the oil company and against the mineral owner.” Oil and gas-authored mineral leases often require riders or addenda to balance out the one-sided nature of the agreement.
Tso tells us that in order to lease a property’s mineral rights, a lessee need only secure the signatures of a majority of the property’s title holders, and this circumstance often bitterly divides families. He shares his personal story of how his siblings sold the mineral lease for their property against his wishes. When a lease is granted, all title-holders benefit, whether they sign the lease or not, and Tso is no exception. At first, he received monthly checks of $500; now, as the wells slowly become less productive, the payment has been reduced to about $100 a month. Tso claims that his family’s land has been degraded environmentally, in some ways permanently, and he says that the oil company’s payments simply cannot compensate for the damage done.
He acknowledges that some Navajo have been lifted out of poverty by royalties and bonuses from their leases with companies such as Enduring Resources, LLC. They now have nice houses and cars and can leave money to their children and grandchildren. But others were left behind, having granted leases they didn’t understand which paid royalties far lower than they expected. Many tribal members who refused to grant leases live in desperate poverty and still suffer the negative health impacts of wells and fracking operations on their neighbors’ lands.
Furthermore, the oil and gas industry leases a significant amount of Bureau of Land Management (BLM) land within the “checkerboard” area of the reservation, increasing the burden of residents who already tolerate pollution from resource extraction on private land. Particularly in the Greater Chaco area and the eastern part of the Navajo Nation, BLM land is interspersed with tribal lands—a legacy of the 1887 Dawes Act. The Bureau’s 2014 estimation that “more than 91 percent of the available land is leased for oil and gas drilling” in the Greater Chaco area is confirmed by Daniel Tso, who claims that now, almost all available BLM-managed land within the Navajo reservation boundaries has been leased to oil and gas.
According to Kyle Tisdel of the Western Environmental Law Center, the “BLM has been approving drilling and fracking permits for years without ever having considered the cumulative impacts to people and the environment.”In 2015, Diné Citizens Against Ruining Our Environment, along with other environment protection groups, filed suit to request an injunction to halt the BLM’s issuance of drilling permits. In May 2019, the Tenth Circuit reversed the approval of 25 drilling permits, but the BLM still continues to issue permits. The BLM considers denying permits to leaseholders a “violation of property rights” and continues to permit thousands of new wells on a case-by-case basis.
Tso tells us that the New Mexico Environmental Department often grants exemptions to Environmental Protection Agency (EPA) restrictions on the amount of methane that can be vented by new fracking sites. New Mexico Democratic state representative Angelica Rubio “characterizes the government’s methane-regulation meetings as packed with gas industry supporters, while officials are ‘tiptoeing around the methane emissions.’”
Under the Trump administration, however, EPA oversight has been reduced so severely that no state-level exemptions are even necessary because federal restrictions on leaking methane essentially no longer exist. In 2017, the Trump administration put a two-year stay on Obama-era regulations that imposed fines on oil and gas operations producing more than 350,000 metric tons of “fugitive methane” (leaks) per year. After an Executive Order from Trump in August 2019, the EPA proposed rescinding fugitive methane emissions limits altogether. A 2018 study in Science Magazine found that 2.3 percent of methane extracted from the ground through drilling and fracking in the United States leaks into the atmosphere, a figure 60 percent higher than the EPA’s estimate, and significantly higher than targets set by the oil and gas companies for themselves.
In 2014, scientists working on a NASA study discovered a 2,500-square-mile cloud of methane hovering over the Four Corners region of New Mexico, the largest concentration of methane anywhere in the nation. Three years later, a study in the journal Environmental Science and Technology confirmed that the oil and gas extracting industry around Four Corners was responsible for the large volume of methane.
Health problems caused by methane emissions from fracking operations are now well-documented.Scientists have found a causal connection between fracking and “preterm births, high-risk pregnancies, asthma, migraine headaches, fatigue, nasal and sinus symptoms, and skin disorders.” The Oxford Research Encyclopedia of Global Public Health conducted a preliminary epidemiological study outlining the many different ways in which potentially long-term community and individual health impacts result from oil and gas extraction, especially fracking. Additionally, Tso and Sage believe the air and water pollution that comes with fracking has been responsible for elevated cancer rates on the Navajo Nation. Despite their awareness-raising work on the health impact of fracking, there has been no state- or federally-backed health impact study on the Navajo Nation. It has been left to the Counselor Chapter to study and publish its own health impact study.
In addition to the environmental and health impacts caused by methane emissions, the heavy traffic associated with fracking has taken a substantial toll on dirt roads that were never designed for such use. The consequences of road erosion and hazards have real-life consequences for Navajo residents who rely on those roads for daily transport. Tso described people whose cars were damaged by debris on the roads left by fracking trucks, and whose access to their home was impeded by impassable stretches of road that had been rutted out in the rainy season.
Oil and gas companies, Tso asserts, develop infrastructure for their own drilling and fracking operations—such as building roads and creating man-made lakes to hold water needed for fracking—which permanently alters what used to be communal land, sometimes in areas that Navajos hold sacred. And yet, no money is ear-marked for the development of civic and community infrastructure in towns and communities affected by these processes within the Nation. The State of New Mexico does not stipulate the need for oil and gas companies to contribute to civic infrastructure in the communities where they operate. Daniel Tso and the Counselor Chapter opposed H.B. 2181—the Chaco Cultural Heritage Area Protection Act of 2019—precisely because it failed to stipulate benefits such as providing running water and electricity to homes in the area.
About 40% of residents on the Navajo Nation do not have running water, and approximately 1/3 residents of the Navajo Nation live without electricity. Efforts to bring electricity to residents of the Navajo Nation have not come from the oil and gas industry, but from volunteers and nonprofits.
As heavily dependent as New Mexico is on tax revenue from the oil and gas industry, it is easy to see why Tso and many Navajos feel that their land and health has been sacrificed so that others may thrive: he says, “next time you see a nice street in Rio Rancho, Cuba, Albuquerque, or Taos…remember where that money came from—it came from here.”
Last year, scientists working within the Environmental Protection Agency under President Trump acknowledged that “non-Whites tend to be burdened disproportionately to Whites” when it comes to breathing polluted air.Although Delegate Tso did not use the phrase “environmental racism,” the disproportionate burden that fracking places on residents of the Navajo Nation inevitably brings it to mind.
Esther Jamison is a second-year law student at the University of New Mexico and is on the staff of the Tribal Law Journal.
See, e.g., American Public Power Association, Light Up Navajo II, Am. Pub. Power Ass’n, https://www.publicpower.org/LightUpNavajo. In spring 2019, volunteer crews helped run electricity to homes through the Light Up Navajo Project, a partnership between the American Public Power Association and the Navajo Tribal Utility Authority.