‘Respect tribal sovereignty’: New Navajo law regulating radioactive material transportation

After uranium ore was transferred across the Navajo Nation in July with little warning, tribal leaders started looking for ways to address the issue that would best benefit their people and community. The solution: strengthen tribal law.

“The purpose of this legislation is to provide for the protection, health, and safety of the Navajo people, their guests and visitors, and the Navajo Nation environment, including its water resources,” the legislation states.

In a special session held in late August, the Navajo Nation Council unanimously passed emergency legislation amending the Radioactive and Related Substances, Equipment, Vehicles, Persons and Materials Transportation Act of 2012 to strengthen the Navajo Nation’s regulatory authority over the transportation of uranium and other radioactive materials across their tribal lands.

Navajo Nation Environmental Protection Agency Executive Director Stephen Etsitty said the most significant change to the act requires advance notification from any company that plans to transport radioactive materials across the Navajo Nation.

Other changes to the law include implementing regulations requiring any person or entity seeking to transport uranium ore, yellowcake, radioactive waste or other radioactive products on or across Navajo Nation lands would need to first enter into an agreement with the Navajo Nation.

That agreement must provide the terms and conditions for such transport, including routes, emergency plans, financial assurances, curfews and other travel restrictions, containment requirements and fees.

And now companies only had to notify the Navajo Nation seven days before transportation instead of four.

“It doesn’t seem like it’s a big change, but it’s an important thing,” he said. “We didn’t get advanced notification for the first hauling action that occurred.”

The amendment comes after Energy Fuels Resources, Inc. (EFRI) transported uranium ore across the Navajo Nation without making prior arrangements with the tribe or notifying it in advance to make safety arrangements. 

EFRI, the owner of Pinyon Plain Mine near the Grand Canyon, started transporting uranium ore from the mine to the White Mesa Mill in Blanding, Utah, on July 30. 

The transportation routes to move the uranium from the Pinyon Plain Mine pass through several tribal communities, including the lands of the Navajo, Hopi, Havasupai and Ute Mountain Ute.

Amendments to the tribal law include interim regulations that will serve as the initial framework for the Navajo Nation when negotiating with companies involved in uranium transport.

They will be in effect for a year until the regulations are further developed through a comprehensive rulemaking process, ensuring that the Navajo Nation has the necessary tools to effectively manage and oversee the transport of radioactive materials.

Etsitty helped draft the new law, and said the old law did not have transport regulations because there was no active uranium mining near the Navajo Nation — until January. 

“This legislation provides the Navajo Nation with the statutory strength and regulatory framework needed to protect our lands and people from the hazards associated with uranium transport,” Etsitty said. “We will continue to engage with all stakeholders to ensure that our regulations are enforced and our communities are safeguarded.”

Navajo Nation President Buu Nygren signed the amendments to the Radioactive and Related Substances, Equipment, Vehicles, Persons and Materials Transportation Act of 2012 into law on Aug. 29. 

“Respect tribal sovereignty and work with us,” Nygren said, adding that having discussions with corporations to work with the Navajo Nation will benefit Arizona and the United States.

“We are able to speak in English in this day and time,” he added. “We’ve got our own attorneys, our own lawyers, and they are more than capable to come up with deals and solutions.”

Negotiations started in August between the Navajo Nation and Energy Fuels Resources, Inc., about transporting uranium ore through Navajo lands to a processing facility in Utah. 

As of Sept. 19,  negotiations are ongoing between the Navajo Nation EPA, the tribe’s Department of Justice and EFRI, according to Geroge Hardeen, a spokesman for Nygren.

“They haven’t reached the agreement they wanted to reach, which is how do you transport this material safely across the Navajo Nation,” Hardeen said.

EFRI’s actions resulted in several tribal members, environmental groups and leaders calling on the state and the mining company to respect tribal sovereignty because the Navajo Nation banned the transportation of radioactive material on tribal land over a decade ago.

The National Congress of American Indians describes tribal sovereignty as a tribal nation’s ability to govern, protect and enhance the health, safety, and welfare of its citizens within its tribal territory. This includes the ability to create and pass laws. 

“Tribal sovereignty ensures that any decisions about the tribes with regard to their property and citizens are made with their participation and consent,” the Bureau of Indian Affairs states on its website.

The Navajo Nation became a sovereign nation when it signed the Treaty of 1868 with the United States, establishing it as a federally recognized tribe in the U.S., acknowledging its sovereignty and the federal government’s responsibilities to the tribe. 

The Navajo Nation officially established the Navajo Nation Council as the tribe’s governing body in 1923 in response to managing the extraction of natural resources on the tribe’s lands.

“The discovery of oil on Navajoland in the early 1920s promoted the need for a more systematic form of government,” according to historical information on the tribe’s official website. “A tribal government was established to help meet the increasing desires of American oil companies to lease Navajoland for exploration.”

The legacy of uranium mining has harmed the Navajo Nation for decades, from abandoned mines to contaminated waste disposal. 

From 1944 to 1986, nearly 30 million tons of uranium ore were extracted from Navajo lands, according to the federal government, and hundreds of Navajo people worked in the mines, often living and raising families near the mines and mills. 

“The adverse impacts of radiation and uranium toxicity on the Navajo people and the environment are well known and must be guarded against by strict regulations to prevent exposures due to the transportation of uranium ore across the Navajo Nation,” the legislation reads. 

During the Navajo Nation Council’s emergency session, many delegates voiced their concerns about the renewed interest in uranium mining, noting how it means that transportation of uranium ore across the Navajo Nation is imminent.

Navajo Nation Council Delegate Casey Allen Johnson, who represents the Cameron Chapter, sponsored the legislation. He said the amendments strengthen Navajo law to ensure Navajo people are protected from exposure to radioactive materials.

Johnson said that he lost his father to stomach cancer in August, and he attributed his father’s illness to uranium exposure. His mother passed away from the same disease 25 years earlier. 

“This is something that is dear to my heart, this legislation, all these uranium legislations,” Johnson said. “This legislation is my tears and arrows.”

The legislation strengthened the Navajo Nation’s regulatory authority over transportation of uranium and other radioactive materials across its lands. 

“This legislation was a necessary step to ensure that our sovereignty is respected and that our people are protected from the potential dangers of uranium transport,” said Navajo Nation Council Delegate Danny Simpson, a cosponsor of the bill. “The events of July 30th were a clear violation of our laws.”