A Travesty Of A Mockery Of A Sham

The United States government's “compensation” to American Indians for past and present injustices typically amounts to what Groucho Marx called “a travesty of a mockery of a sham.”  Case in point: In 1974, the California State Legislature voted to pay enrolled members of California Indian nations $0.47 an acre – about $650 per Indian -- in exchange for having expropriated all the land of California.  California officials arrived at their $0.47-an-acre calculation because that's what land was worth in the state, on average, in 1853.

Another example is an agreement announced last week between the Environmental Protection Agency (EPA), Bureau of Indian Affairs (BIA), Bradley Mining Company, and the Elem Pomo's US federal government-recognized tribal administrators. As compensation for poisoning the Elem's land and waters with prodigious amounts of methyl mercury tailings for several decades, thereby causing premature deaths, birth defects, cancers, and bodily deformities among tribal members, while in the process destroying the tribe's ability to grow food or harvest fish safely (as they have for more than 10,000 years), the Bradley Mining Company would pay the Elem $50,000 and give them five land parcels under the settlement. The EPA says the 380 acres that make up these parcels have been decontaminated.

In exchange, the Elem would never again be allowed to sue the United States government, including the EPA and BIA, or even the Bradley Mining Company, for any reason.

Within days of the settlement agreement's release, Elem Cultural Leader Jim Browneagle submitted a “public comment” letter to the US Department of Justice and the EPA denouncing the terms of the settlement.

“If the current settlement agreement is approved, it will be a travesty of the federal justice system and violation of Indian Civil Rights Act and Indian Self-determination, while undermining the protection of natural resources and tribal sovereignty,” he wrote. He also called the settlement “a setback of environmental justice [and] a denial of fair and equal compensation to the living surviving Elem members and families for their lifelong pain and suffering and loss of tribal lifeways (gathering of healthy foods and fish).”

Browneagle refers to the $50,000 pittance the Elem would receive as “bribe money.” He notes that if the Elem could afford adequate legal representation, they would be able to sue the EPA – among other potential litigation they could file in connection with the Bradley mine's legacy – for an estimated $10 million in damages caused during a 2006 clean-up effort on the Elem rancheria, otherwise known as the Elem Pomo Indian Colony.  The EPA had belatedly designated the land a toxic Superfund site.

In that case, the Bush administration commissioned the massive construction firm CH2MHILL – similar to the more famous Halliburton with regard to its political ties to federal officials – to remove a massive quantity of mercury tailings the BIA had used as fill on which its contractors built the Elem reservation homes in 1971, as well as conduct other clean-up on the site. In the process, the construction behemoth decimated more than 70 acres of thousands-of-year-old Elem ancestral remains, in violation of Section 106 of the federal National Historic Preservation Act.

Such is the level of fairness and respect that usually attends the US government's dealings with First Nations people, not least of all in our neighboring Lake County.

Notably, the BIA was compelled to build the Elem's homes – mercury fill beneath them and all – after a group of Berkeley High students who had visited the Elem Colony on a class field trip wrote furious letters to the BIA regarding the shanty town conditions that prevailed on the rez at the time.  There was then a vibrant national movement in support American Indian rights, which pressured the federal government to take such matters seriously.

Another person to comment on the proposed settlement is Lake County-based archeologist John Parker, perhaps the leading scientific authority on Elem prehistory.  He has frequently volunteered his time to support cultural preservation in Lake County and elsewhere.

“I have seen this type of 'settlement' before between government agencies and individuals or organizations,” Parker wrote in a February 20th Facebook post, from which he gave permission to the AVA to quote.  “They are usually drafted in response to a potential law suit that the government knows they wouldn’t win (such as a claim that the EPA did millions in damage to the cultural resources on the reservation, or any health-related suits against the BIA for using mine tailings as fill on the rez). So they offer something that they think the organization (in this case Elem) wants in exchange for never having to worry about being sued by that organization in the future.”

EPA officials, by contrast, heralded the settlement as an all-around victory for the Elem, the people of Lake County, and the ecology in and around Clear Lake. “This settlement will help the Clear Lake ecosystem recover, including reducing the risks due to mercury in fish,” says Jared Blumenfeld, Regional Administrator for EPA’s Pacific Southwest region.  “It also demonstrates EPA’s strong commitment to supporting the environmental cleanup of tribal lands.”

The Elem are currently riven by internal conflict, Browneagle says, stemming from the compensation enrolled members are eligible to receive as part of a state-administered fund for tribes that opt not to build casinos.

“Most of the current officials who agreed to this illegal settlement agreement don’t even live on the Elem Reservation or even in live in the county,” he says, “and they appear only to want to divide up non-gaming funds.”

Brief History of the Mine

The Bradley site initially was mined for sulfur from 1865 to 1871. Mercury ore was mined intermittently by underground methods from 1873 to 1905. Open-pit mining began in 1915, with Bradley Mining Company taking over the operation in 1927. The mine reached its production peak during World War II, feeding the demand for quicksilver detonators in munitions and becoming one of the largest mercury producers in the world. During this time, much of the waste rock was pushed into the lake, filling in surrounding natural hot springs and mineral baths that the native people had enjoyed for 10,000 years.

It was not until 1976, when the California Health Department issued a formal public statement warning about health consequences for pregnant women from eating the mercury-contaminated fish in Clear Lake, that the Elem abandoned their traditional subsistence practice. Until then, most members of the tribe dined on as many as five meals of fish every week, as they had traditionally for more than 10,000 years. They caught the fish in the eastern arm of Clear Lake, directly adjacent to the mine tailings pond.

Other Elem members worked in the mine, including Jim Browneagle's father, Jim Brown II. "For years he worked in that mine, and he had all of the symptoms,” Browneagle has said. “I believe he died because of the mercury, but in our tradition we do not perform autopsies, so we can't know for sure."

In 1994, the Department of Health Services did a study of urine and blood mercury levels of the Elem Pomos. Urine levels, which indicate mercury contamination levels from soil and dust, were not particularly high. The blood tests, which reflect levels of methyl mercury, or the type that's "broken down" by bacteria in the lake sediment and carried up the food chain, were at 15 micrograms of mercury per liter of blood (15 ug/L).  The DHS attributed this finding to elevated mercury levels in the fish the Elem were consuming.

Yet, the department also found the tailings dangerous enough to issue an advisory at the time, stating: "We recommend that you not walk or play on the Sulfur Bank Mine. The levels of mercury and other chemicals on this site and in the ponds are hazardous, and are much higher than any levels in soil and dust at your home."

Rattlesnake Island

The fight over the poisonous legacy of the Sulfur Bank Mine takes place as the Elem are dealing with various other outrages, including an all-out effort to defend their cultural and religious center, Rattlesnake Island, from development by East Bay Area digital technology mogul John Nady.  As I've described in three previous stories for the AVA, Nady is developing a vacation home and caretaker's cabin on the island.  Nady began construction this past December after Lake County Community Development Director Rick Coel gave him a special extension of Lake County's normal grading season. In September, the Lake County Supervisors voted (3-2) against requiring that Nady file an Environmental Impact Review, when it was clearly required because of intentionally shoddy archeological research.  The Lake County Planning Commission had earlier ruled 5-0 that the EIR was required.

Elem and their supporters are currently in a complicated struggle to preserve Rattlesnake Island. Their attorney, Rachel Mansfield-Howlett of Santa Rosa, and John Nady's attorney, Frederic Schragg of Oakland, conducted an arbitration hearing with the judge involved in the case earlier this month. The judge will determine on March 16th if the case qualifies for entry into court under the California Environmental Quality Act.

Nady has already completed a stand-alone bathroom on the island. It is believed he has also completed construction of a foundation for his home.

Meanwhile, Browneagle and other Elem traditionalists are demanding that the federal government purchase Rattlesnake Island as part of their settlement concerning the mercury mine. Because the settlement negotiated by the federal government involves $10 million in total restitution from Bradley Mining Co., including $7 million that would go to the EPA itself, Browneagle demanded that the restitution funds instead go to fully compensate the Elem in the following ways:

· $3 million to purchase Rattlesnake Island

· $1.5 million to build Elem museum/cultural center (fund, operate museum and cultural center for tribe and public).

· $1.5 million for an Elem health/wellness center (fund health & wellness center for tribal members, including those stricken with methyl mercury poisoning).

· $2 million for Elem tribal members' ($50,000 each) financial compensation for lifelong pain, suffering and loss of life ($500,000 higher education, employment and training fund).

· $1 million for sacred site protection and development of a tribal land trust organization and for the purchase and operation of Anderson Marsh State/Tribal Park for public access.

· $1 million payment to and for the Lake County citizen’s benefit (food kitchen, homeless shelter, farmers markets, organic gardens, etc.).

These demands, including the inclusion of Rattlesnake Island in a settlement agreement, make perfect sense, as John Parker explains: “Since this document prevents Elem from ever suing the U.S. over any land claims, health claims, BIA, or EPA activity, Elem needs to make sure that it receives everything it could possibly want or need from the U.S. (both now and in the future) as part of this decree. For example, if Rattlesnake Island is important to the Tribe, then its transfer to the tribe should be included in this decree (either in addition to, or instead of, one of the 5 parcels that the Tribe will get from the newly created trust).”

He continues, “Such a transfer would be appropriate as reimbursement to Elem by the Federal Government for the damage done to Elem’s cultural resources during the mine waste cleanup project.”

A fundraiser to benefit the Elem's efforts specifically to protect Rattlesnake Island takes place on Friday, March 9th from 5-7:30 p.m. at the Ukiah Saturday Afternoon Club.  Jim Browneagle, John Parker, and sacred sites activist Morning Star Gali of the Pit River Tribe will be the featured speakers. (Full disclosure: the author is helping to organize the fundraiser.)

The settlement is subject to a 30-day public comment period and final court approval. A copy of the settlement document is available on the Department of Justice website here.

Contact Will Parrish at wparrish@riseup.net.