Tar Creek: The Quapaw Tribe, the EPA, and Tribal Self-Determination, 1980–2010

During most of the twentieth century in northeastern Oklahoma, the center of the American lead belt, children played on piles of toxic dirt in their schoolyards and backyards. Toxic dust polluted the air, and sinkholes opened in the towns without any warning. Due to the toxicity of the land, which was contaminated with the remnants of the once profitable mining industry, the federal government eventually moved the residents. Once these mines had been exhausted of their ore, the mining companies withdrew from them, and they sat vacant, filling with water. Toxic metals infused the water, which leached to the surface and into surrounding aquifers and lakes. A team from Environmental Protection Agency (EPA) Region 6 began cleaning Quapaw land in 1981 through the removal of polluted soil.¹ Eventually, the Quapaw Tribe Oklahoma Environmental Department would play a small role in the process, but the EPA never recognized its ability to take the lead on cleaning Quapaw land, despite the EPA's belief in tribal self-determination, which is the ability of a tribe to run its own affairs and is also known as sovereignty.² The federal government has maintained during the self-determination era, from 1970 to the present, that tribes can forge their own path, yet the EPA did not recognize the self-determination of the Quapaw Tribe. The necessity of this study lies in the reality that scholars have covered the Quapaw only minimally, as no histories of the modern Quapaw Tribe exist. Furthermore, scholars have barely analyzed the EPA vis-à-vis the Native peoples. All that exists in the literature so far is the notion that the EPA has worked as a benevolent intermediary in tribal affairs, which the evidence in the present study contradicts.³

As a result, scholars have not adequately demonstrated that the EPA often interprets federal law to the detriment of Native nations. When dealing with tribes, the EPA ultimately decides how to apply the Clean Water Act (CWA, 1972), the Safe Drinking Water Act (SDWA, 1974), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 1980), also known as Superfund.⁴ The EPA sets the scientific parameters to which tribes must acquiesce. In the case of the Tar Creek Superfund, EPA Region 6 did not permit the Quapaw Tribe to take the lead on cleaning its own land, despite the fact that federal courts have empowered the EPA in electing to defer leadership in such cases. This is somewhat surprising, given that the EPA began operations on December 2, 1970, at the dawn of the self-determination era and became a primary partner with tribes.⁵ The EPA's Indian Work Group released a statement in 1983: "It would recognize tribal governments as the primary parties for policy formulation and implementation on Indian lands, consistent with agency standards and regulations. The Agency is prepared to work directly with Indian Tribal Governments on a one-to-one basis, rather than as subdivisions of other governments."⁶ In 2000 President Bill Clinton reiterated this policy across the federal government with Executive Order No. 13,175, which stated that "the United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination."⁷ In 2010 former EPA administrator Lisa Jackson established the Office of International and Tribal Affairs to ensure that "we approach our relationship with the sovereign tribal nations within our own country in the same way we approach our relationship with sovereign nations beyond US borders."⁸

The concepts of the federal-tribal trust relationship and self-determination are at the center of the issue. The Supreme Court with Chief Justice John Marshall, who served in this position from 1801 to 1835, established the initial grounds of the federal-tribal trust relationship. The court first bypassed tribal self-determination in Fletcher v. Peck (1810) when it did not consider the Cherokees the rightful owners of their land in Georgia. The majority opinion ruled that Georgia could sell land within its limits as long as the state constitution permitted such sale.⁹ The court maintained...