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10th Circuit Backs EPA Indian Country Decision

(CN) - The 10th Circuit upheld the government's determination that "checkerboard" land in northwestern New Mexico is "Indian country" for the purposes of regulating a proposed uranium mine under the Safe Water Drinking Act.

Hydro Resources Inc. challenged the Environmental Protection Agency's determination, which would affect a proposed uranium mine on 160 acres of checkboard land between Gallup and Church Rock in McKinley County, N.M.

The checkerboard land is a vestige of the federal land grants aimed at jumpstarting railroad construction in the late 1800s. After the railroad boom, the government bought back the land and allotted even-numbered parcels to individual Navajos, while odd-numbered parcels were placed into trust for the tribe.

Hydro Resources acquired the land from a nuclear company that bought it, along with accompanying uranium patents, from the federal government in 1970.

The EPA determined that the land is part of a "dependent Indian community," subjecting the proposed mine to regulation by the EPA instead of the New Mexico Environmental Department.

Hydro Resources appealed that determination, because it meant the company had to obtain a federal permit in addition to the approval it already received from the state environmental department.

Writing for the Denver-based appeals court, Judge Ebel held that the Church Rock Chapter of the Navajo Nation constitutes a legitimate "community of reference" under the "dependent communities" standard that defines Indian country. Although the Nation provides policing, utilities and other services to the chapter, it depends on the federal government for health, education and natural resource management services.

The chapter also counts as a dependent community because it retains an "element of cohesiveness," the court continued. Of the chapter's population, 97 percent belong to the Nation and a majority speaks Navajo. More than 800 homes are "organized into traditional family-based 'camps' of one to six homes or into low cost tribal housing developments," Ebel wrote. Residents are bound together economically as well, largely raising livestock and producing crafts.

The court upheld the EPA in denying Hydro Resources' petition to reconsider the land designation.

Judge Frizzell dissented, writing that Church Rock Chapter should not be considered a community of reference because the land in question is uninhabited and lies more than five miles from the chapter house.

"Never before has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community," Frizzell wrote, cautioning against allowing non-Indian land to be pulled into a "black hole" of neighboring Indian land.

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