The relationship between the federal government and American Indian Tribes has taken on new relevance following protests of the Dakota Access Pipeline project. In this light, the U.S. Nuclear Regulatory Commission (NRC) has been prescient in moving forward in a number of areas to clarify and improve its relationship with American Indian communities.

In particular, this month the agency approved a final “Tribal Policy Statement” outlining the principles to guide the agency’s relationship with American Indian Tribes. The NRC also has developed a “Tribal Protocol Manual” with more specific steps to guide NRC staff interactions with American Indian Tribes. According to the NRC Commission, the principles at the core of the Tribal Policy Statement are:

  1. The NRC Recognizes the Federal Trust Relationship With and Will Uphold its Trust Responsibility to Indian Tribes.
  2. The NRC Recognizes and Is Committed to a Government-to-Government Relationship with Indian Tribes.
  3. The NRC Will Conduct Outreach to Indian Tribes.
  4. The NRC Will Engage in Timely Consultation.
  5. The NRC Will Coordinate with Other Federal Agencies.
  6. The NRC Will Encourage Participation by State-Recognized Tribes.

Interactions with American Indian Tribes have been at the forefront for the NRC in recent years, particularly in the context of uranium in situ leach recovery (ISR) operations. Uranium ISR facilities, although most often supported by the local communities, are also located near areas historically settled by American Indian Tribes, and many Tribes have been opposed to these projects. The NRC licensing process allows American Indian communities a chance to participate in licensing proceedings and argue their concerns before Atomic Safety & Licensing Boards (Licensing Boards), a feature unique in many ways to the NRC. American Indian communities have taken advantage of this and raised contentions in multiple uranium ISR proceedings.

Two uranium ISR decisions are of particular interest, and signal an effort by the NRC Commission to do more with regards to meeting the agency’s National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA) requirements in regards to American Indian Tribes. The first Licensing Board decision, issued April 2015, concerned the licensing of the new South Dakota Dewey-Budock “Powertech” ISR facility. In this decision, the Licensing Board found the NRC staff’s consultation efforts with the Oglala Sioux Tribe, and its cultural resource review of site, both inadequate under the NHPA and NEPA. Of particular interest, the Powertech Licensing Board explained that the need for a meaningful cultural resource review under the NHPA is a similar but different requirement than the need to understand environmental impacts to cultural resources under NEPA. According to the Powertech Licensing Board, the NRC staff, albeit satisfying the NHPA in this regard, failed to meet NEPA’s requirements. The Commission today, on December 23, 2016, issued a critical order affirming key aspects of the Powertech decision.

The Commission’s affirmation of the Powertech decision likely bodes well for a separate Licensing Board decision, currently under review by the Commission, regarding the license renewal of the Crow Butte ISR facility in Nebraska. In this May 2016 decision, which involved the same intervenor, the Oglala Sioux Tribe, the Crow Butte Licensing Board found that the NRC staff’s consultation efforts satisfied the NHPA, but that the cultural resource review of the site failed to meet the needs of either the NHPA or NEPA. The Crow Butte Licensing Board here emphasized a need for those with expertise in Oglala Sioux cultural artifacts to play a role in the cultural resource review of the site.