NY Times, August 12, 2007
Far From the Reservation, but Still Sacred?
By NELSON D. SCHWARTZ
Yuma, Ariz.
SQUINTING against the harsh desert sun, Mike Jackson, leader of the
Quechan Indians, looks out past his tribe’s casino and the modern sprawl
of Yuma and points to the sandy flatlands and the rust-colored Gila
mountain range shimmering in the distance. “They came this way,” he
says, describing how his ancestors followed the winding course of the
Colorado River and ranged over hundreds of miles of what is now western
Arizona and southeastern California. “There’s a lot of important history
here, both for the Quechan and the U.S.”
And if it’s up to him, that history will go a long way in determining
the future of this corner of the West, one of the fastest-growing parts
of the country and a place where developers are increasingly running up
against newly powerful but tradition-minded American Indian leaders like
Mr. Jackson.
As president of the Quechans over the last decade, Mr. Jackson is
leading a new kind of Indian war, this time in the courts. The
battlegrounds are ancient sites like the religious circles, burial
grounds and mountaintops across the West that Indians hold sacred and
are protected by federal environmental and historic preservation laws.
After successful smaller battles, Mr. Jackson is now challenging a
bigger project, arguing that the construction of a planned $4 billion
oil refinery in Arizona could destroy sites sacred to his tribe.
What makes this case different from more traditional fights between
Indians and developers is that the refinery isn’t on the Quechan
reservation or even next to it. In fact, the refinery is planned for a
parcel of land some 40 miles to the east of the reservation, on the
other side of Yuma and the Gila mountain range. But Mr. Jackson and the
tribe’s lawyers argue that before the land can be transferred to the
company building the refinery, Arizona Clean Fuels, or construction can
start, an exhaustive archaeological and cultural inventory must take place.
The Quechans are not a large tribe. Also known as the Yuma Indians (they
prefer the name Quechan, which means “those who descended”), they number
about 3,300 and their reservation on the California-Arizona border
covers roughly 70 square miles. That is a small fraction of the size of
lands the federal government set aside more than a century ago to
better-known nations like the Apaches or Navajos. Mr. Jackson has
already stopped two planned projects — a low-level nuclear dump and a
$50 million gold mine on the California side of the border — both also
well away from the Quechan reservation. This year, he helped defeat the
nomination of a Bush administration official who favored the mine to a
federal appellate court.
LIKE the land itself, the fight over the refinery reflects a tangle of
cultures and centuries of bitterness between Indians and newcomers. Mr.
Jackson says it’s about respect for Quechan culture, and a new
willingness on the part of Indians to stand up to the local
establishment after centuries of not having a say. Business and
political leaders in Yuma argue that it’s little more than a land grab
by Mr. Jackson, a dubious attempt by the tribe to block much-needed
development and assert claims to territory lost long ago.
What’s more, says Glenn McGinnis, chief executive of Arizona Clean
Fuels, a preliminary inspection failed to turn up evidence of ruins near
the site, which was privately owned for decades by local farmers but was
later bought by the federal government to acquire water rights.
In any case, Mr. McGinnis says he’s committed to protecting any sacred
remains that turn up once construction begins. But doing the more
extensive survey sought by Mr. Jackson and the Quechans now would not
only delay the project by months, it would also cost about $250,000,
which Arizona Clean Fuels would be obligated to cover.
The dispute is about more than money, though. It has also brought
resentment of the tribe’s newfound clout to the surface. David Treanor,
vice president of Arizona Clean Fuels, calls the Quechans’ stance
“psychological imperialism” and compares Mr. Jackson to Hugo Chávez,
Venezuela’s left-wing leader.
Casey Prochaska, chairwoman of the Yuma County Board of Supervisors,
adds: “My grandmother probably went across here in a covered wagon. This
country didn’t stop because they walked over this land.”
Indeed, the refinery isn’t even the main issue for some business
leaders. “It’s a question of how far does their sphere of influence go,”
says Ken Rosevear, executive director of the Yuma County Chamber of
Commerce. “Does it go clear to Phoenix? To Las Vegas? The whole West?”
Mr. Rosevear may be exaggerating, but his fear illustrates just what’s
at stake. If the Quechans’ lawsuit succeeds, it would bolster the
efforts of other, larger tribes to block development on territory where
they also once lived and prayed.
ALREADY, in northern Arizona, Navajos, Hopis and other Indians have
effectively stopped plans to expand a ski resort roughly 50 miles from
the nearest reservation, after convincing a federal appellate panel in
March that using wastewater to make artificial snow would desecrate
peaks long held sacred.
Leaders of the Northern Cheyenne tribe, meanwhile, have been using
similar arguments to block drilling for coal-bed methane near their
reservation in Montana. Pumping water out of underground aquifers to
extract natural gas will harm the spirits that inhabit the springs and
streams where the Northern Cheyenne worship, says Gail Small, a Northern
Cheyenne tribe member who heads Native Action, an environmental group
she founded after graduating from law school.
Adding weight to her argument is the American Indian Religious Freedom
Act, passed by Congress in 1978, which acknowledges the link between
native American religion and land both on and off the reservation.
“You’re seeing a real renaissance of tribes becoming aware of their
cultural resources and heritage, and reclaiming that heritage even when
it’s off the reservation,” says Robert A. Williams Jr., a law professor
at the University of Arizona who has advised tribes on the legal issues
surrounding off-reservation sacred sites.
And, thanks to the rise of casino gambling on Indian reservations, many
tribes now have the money to challenge natural resource companies, real
estate interests and other wealthy players who have long held sway in
the West.
“Tribes no longer have to hope for or rely upon the efforts of outside
environmental groups or pro bono law firms,” says Joseph P. Kalt,
director of the Harvard Project on American Indian Economic Development.
“Not only are they much more sophisticated, but they have the money to
fight for themselves.”
Mr. Jackson doesn’t dispute that the opening of the popular Paradise
Casino on his reservation in 1996 has shifted the balance of power in
these parts. “It’s made all the difference in the world,” he says. “We
didn’t have the money to hire attorneys before; we didn’t have the
tools. We also learned how to play the political game in America that’s
been played against us in the past.”
During the winter months, when snowbirds fill local hotels, it’s hard to
find a spot in the Paradise Casino parking lot on some nights, and the
casino generates an estimated $45 million a year in net revenue for the
Quechans.
Mr. Jackson isn’t always against new development. The Quechans are
considering building a second casino on the California side of the
border, and he has faced protests of his own from tribal elders who
argue that the $200 million project also happens to be on sacred ground.
In June, the Quechan police force arrested tribe members protesting at
the site of the new casino. Yuma officials like Ms. Prochaska call that
hypocrisy, but Mr. Jackson says it’s not up to them to decide what is
sacred to Indians and what’s not.
The son and grandson of tribal leaders, Mr. Jackson, who is 60, says
that in the past, “the government gave us funds just to survive and they
didn’t hear a word from our people.” Now, he says, local leaders like
Mr. Rosevear have to come to him. “They come, smile, and shake my hand,
but they don’t like it. Too bad. That is how the process is now.”
Glamis Gold, the Canadian mining company that sought to build the
California mine, learned that the hard way several years ago. After
investing $15 million, the company watched Mr. Jackson tie up the
project with regulators. It was finally killed when Gray Davis, then the
governor of California, issued an emergency order.
Charles A. Jeannes, an executive at Glamis at the time, says the company
tried to negotiate with Mr. Jackson. “We’d told them we’d discuss any
number of kinds of compensation,” says Mr. Jeannes, now executive vice
president of Goldcorp, which acquired Glamis in 2006. “But we never got
specific because they made it clear they wouldn’t accept the mine.”
Mr. Jackson has a slightly different recollection. “They came and
offered money, trucks and other things,” he says. “I told them I’m not
going to take one penny, and to get out of my office.”
In Quechan lore, dreams are sacred — they are a literal path to
knowledge and power. So perhaps it’s fitting that the refinery has been
a business dream in Arizona for two decades, a long-talked-about project
that if completed, would be the first new refinery constructed in the
United States in more than 30 years.
It’s also a vision that could prove hugely profitable. Refining margins
in the Southwest are among the healthiest in the country, while gasoline
demand in Arizona, Nevada and California has been growing at twice the
national average. And until Mr. Jackson and the Quechans challenged
their plans, the 1,400-acre site seemed like the rare spot in America
where a refinery might actually be welcomed.
The last fruit orchard on the site died out decades ago, after the
federal government acquired the land and bought up the water rights. The
nearest homes are miles away. Now the silence is broken only by the
sound of passing freight trains and the occasional rumble from the
Army’s Yuma Proving Ground.
Earlier this year, the government transferred the land intended for the
refinery to the local irrigation district, which in turn sold it to
Arizona Clean Fuels for $15 million in March. It’s this transfer that
the Quechans are challenging in their suit, arguing that procedures
required under federal law to protect Indian sites were not followed
properly.
Mr. McGinnis, a soft-spoken veteran refining executive who retains the
accent of his native Toronto, says he is sensitive to the tribe’s
worries. And unlike other officials, he shies away from criticizing Mr.
Jackson or the Quechans.
“But there’s not a whole lot here,” he says, pointing to the furrowed
ground and a few remaining tree stumps bleached white by the sun. “The
probability of finding any relics is next to zero because the land has
been disturbed and farmed for a long, long time. But we’ll bring in
surveyors to walk the site, and I committed to that two years ago.”
Bringing in experts once the project is under way isn’t enough for Mr.
Jackson. He says that he’s not against the refinery but merely wants
experts to survey 100 percent of the land now, before any land transfer
is approved by the courts. Still, it’s clear he’s not happy that the
government is selling land to private buyers like Arizona Clean Fuels.
“If they have no use for it, give it back to us,” he says of the federal
government’s move. “We know how to protect it; it’s our ancestral land.”
FOR Arizona Clean Fuels and Mr. McGinnis, the Quechan lawsuit couldn’t
have come at a worse time. After years of negotiations, the company
renewed its state emissions permit last September. Now, Arizona Clean
Fuels, which is owned by individual investors in the Western United
States, is seeking an outside institutional backer with deep-enough
pockets to put up the initial $1.5 billion to start construction and
eventually borrow an additional $2.5 billion to finish the refinery by 2011.
Mr. McGinnis says he’s negotiating with two investor groups over that
crucial $1.5 billion initial investment. But the lawsuit is a
distraction for him, and a worry for any potential financial backer. “We
spend half our time dealing with our attorneys on this when we should be
dealing with other things,” he says.
The tribe’s effort to seek a preliminary injunction was rejected in
federal district court in late June, but now the Quechans are appealing
to the United States Court of Appeals for the Ninth Circuit in San
Francisco, a traditionally liberal panel that has been sympathetic to
Indian claims in the past, including the suit over the ski resort.
Both sides seem to be digging in, even though Mr. Jackson has never
visited the refinery site, and Mr. McGinnis has never spoken directly to
Mr. Jackson. “We’ve had many doors slammed in our face in the past,”
says Mr. Jackson, sitting in the tribe’s council chambers on the
reservation. “But that’s the old way. Today, my foot is in the door and
I’m going to kick it wide open for my people.”
Mr. McGinnis avoids responding to that challenge. Because of the
lawsuit, he says he hasn’t picked up the phone to call Mr. Jackson
directly, but adds that “our attorneys have requested meetings and I’ll
sit down with him anywhere and anytime he wants.”
That’s not likely to happen soon, and Mr. Jackson says he is willing to
take the suit to the Supreme Court if necessary. As was the case with
the gold mine, he doesn’t seem interested in a financial settlement with
Arizona Clean Fuels but is focused on the land itself. “We’re a
tenacious people,” he says, citing earlier fights of a different kind
between the Quechans and the Spanish, the Mexicans and the United States
cavalry. “We’re still here. The cavalry is gone.”
