Appeals court reverses stance in Indian Country status case

Environment | Law

Wednesday, June 16, 2010

A proposed uranium mine in New Mexico is not located in Indian Country, a divided en banc panel of the 10th Circuit Court of Appeals ruled on Tuesday.

Hydro Resources Inc., a subsidiary of Uranium Resources Inc, owns 160 acres in western New Mexico. The parcel, in an area known as Section 8, is surrounded by land owned by the Navajo Nation and by individual tribal members.

But except for a brief period from 1907-1911, Section 8 has not been set aside by Congress "for the use of the Indians as Indian land" and is not "under federal superintendence," the 10th Circuit said in a 6-5 decision.

"In our case, it is undisputed that HRI’s Section 8 land hasn’t been explicitly set aside by Congress (or the Executive) for Indian use since the brief period when it was appended to the Najavo [sic] Reservation nearly a century ago," the majority wrote. "It is likewise undisputed that the land isn’t under federal superintendence, and hasn’t been since the government sold it in 1970."

The dissent said the Environmental Protection Agency was correct to look at the surrounding character of the land in order to determine the Indian Country status of HRI's Section 8 land. The Churchrock Chapter House is only six miles away and the overwhelmingly majority of the people in the area are members of the Navajo Nation.

"Someone looking at a vacant lot in the middle of a developed neighborhood would not say that the vacant lot is not part of the community that surrounds the lot on all sides," the five judges noted. "Similarly, a parcel of 160 acres completely surrounded by a community of 57,000 acres should not fail to be part of that community simply because of the ownership status of that parcel."

HRI has already obtained a water permit for the project from the state of New Mexico. If the land were considered Indian Country, the company would have to get approval from EPA.

Get the Story:
Court: Planned NM Uranium Mine Not on Navajo Land (AP 6/15)

10th Circuit Decision:
HRI v EPA (June 15, 2010)