ENVIRONMENTAL JUSTICE

Volume 4, Number 4, 2011

ª Mary Ann Liebert, Inc.
DOI: 10.1089/env.2011.0036

The Recognition Dimensions of Environmental

Justice in Indian Country

Kyle Powys Whyte

ABSTRACT

Environmental justice theories that incorporate recognition justice will be best suited to evaluating the
fairness of government-to-government relations, tribal institutions, and the provision of funds. I will make
the case for a recognition-based conception of environmental justice. Though recognition is important to
environmental justice in Indian country, there are three principle challenges that it faces: the sheer par-
ticularity of the situations of different tribes, disagreements over what counts as traditional, and decisions
by tribal governments that do not accord with many of the values of the environmental and environmental
justice movements.

T ribal governments have enormous—historic—

responsibilities to ensure members can safely practice
their relationships with the environment (Creation). En-
vironmental bads like pollution and the destruction
of sacred sites impede tribal members’ lifeways. Tribal
governments will be more capable of preventing envi-
ronmental injustices the more they contest federal policies
and programs that impinge on their sovereignty. If we
assume the acceptance of this last claim, then one part of
environmental justice in Indian country hinges on the
structure of government-to-government relations (statu-
tory language, regulatory rules, etc.), the strength of tribal
institutions, and the adequate provision of funds for tribal
programs through business revenues and grants.1 But
what standards should be used to evaluate whether such
political arrangements, institutional structures, and pro-
gram guidelines promote environmental justice?
Dr. Kyle Powys Whyte is an Assistant Professor of Philosophy
at Michigan State University, and an affiliated faculty at the
Center for the Study of Standards in Society (CS3), the Peace and
Justice Studies Specialization, the Environmental Science and
Policy Program, and the American Indian Studies Program.
1
Dean Suagee, ‘‘Turtle’s War Party: An Indian Allegory on
Environmental Justice,’’ Journal of Environmental Law and Litiga-
tion 9 (1994); James M. Grijalva, Closing the Circle: Environmental
Justice in Indian Country (Durham, NC: Carolina Academic Press,
2008). U.S. citizens and tribal members also have a responsibility
to press U.S. elected officials to change federal policies toward
tribes. In cases where tribal governments are unresponsive to
injustices suffered by its members, activism is needed to give
voice to tribal members’ situations.
Different views exist on the moral basis of standards of
environmental justice in Indian country. Consider, very
briefly, the 1987 amendments to the Clean Water Act,
under which tribal governments may apply to the
Environmental Protection Agency (EPA) for Treatment as
State (TAS) status. Tribes with TAS status may set water
quality standards that are enforceable by EPA and more
stringent than those of neighboring states. Here, TAS
status implies a type of government-to-government rela-
tion and a structure of tribal institutions to which EPA
will delegate some authority. Do the 1987 amendments
promote or discourage environmental justice in Indian
country? Some might judge TAS status according to the
standard that any program that distributes more powers
to tribes is fair. Tribes with TAS status can control a
greater amount of the environmental decisions that affect
their members than they could previously.
Despite the appeal of this argument, others might dis-
agree with it because of the kind of power being dele-
gated. With TAS status, disputes between tribes and states
would be settled by EPA; in other words, the program
subordinates tribes to EPA. The program recognizes tribal
sovereignty as long as it remains subject to EPA, leaving
tribes open to EPA’s judgments about tribal values, his-
tory, and knowledge.2 In this view, the specific ways in
2
Darren Ranco and Ann Fleder. ‘‘Tribal Environmental So-
vereignty: Cultural Appropriate Protection or Paternalism?’’
Journal of Natural Resources and Environmental Law 19, no. 1 (2005):
35–58.

199
200
which tribal sovereignty is defined and represented in
relation to non-tribal institutions may leave tribes open to
injustice. Each view assumes certain standards of justice.
The first view evaluates TAS status according to whether
the program increases the amount of authority delegated
to tribes. The second view evaluates the program accord-
ing to whether the meaning of sovereignty is acceptable.
In this essay, I will argue that deliberations about how
to evaluate government-to-government relations, tribal
institutions, and the provision of funds should ultimately
be guided by the standard of recognition justice. Re-
cognition justice requires that policies and programs must
meet the standard of fairly considering and representing
the cultures, values, and situations of all affected parties.
Such a standard is not used enough in current environ-
mental policy discussions nor does it gain sufficient cov-
erage in natural resources and agricultural curricula at
undergraduate, graduate, and professional levels. I will
unpack the concept of recognition justice by comparing it
to other conceptions of justice. I aim to describe the con-
cept in ways suggestive of how it could be employed
better in policy and educational contexts.
To begin with, distributive standards of environmental
justice concern whether environmental risks, like a com-
munity’s proximity to a commercial hazardous waste fa-
cility, and bads, like exposure to dirty air, are allocated
fairly. They also concern whether opportunities to take ad-
vantage of environmental goods, like access to green tech-
nologies and green spaces, are open to all fairly. Distributive
justice can also concern how powers are allocated across
members and groups in a society, such as voting and au-
thority. Greater distributive justice calls for the reduction of
risks and bads when some communities bear them dispro-
portionately.3 Distributive injustice is an issue in Indian
country. An example is a study in the 1990s showing that
1,100 open dumps existed on Indian reservations.4 In terms
of the distribution of powers, by 2008, 38 tribes have TAS
status under the Clean Water Act, which means there are
nearly 300 reservations without water quality standards.5
Different from distributive justice, standards of proce-
dural justice have to do with the fairness of who gets to
participate, and to what extent, in the decision-making
processes used to allocate risks and goods. Free informed
consent,6 meaningful public participation activities, and
community based participatory research (CBPR) exemplify
3 the value of tribal sovereignty nor the historically specific
Peter S. Wenz, Environmental Justice, Suny Series in Environ-
mental Public Policy. (Albany: State University of New York
Press, 1988); Andrew Dobson, Justice and the Environment: Con-
ceptions of Environmental Sustainability and Theories of Distributive
Justice (Oxford, UK: Oxford University Press, 1999).
4
EPA, ‘‘Open Dump Cleanup Project Helps Tribes Fight
Waste,’’ < http://www.epa.gov/osw/wycd/tribal/pdftxt/
opendump.pdf > .
5
Dean Suagee. ‘‘Tribal Sovereignty over Water Quality—
Implementing the Clean Water Act in Indian County.’’ Presented
at National Congress of American Indian conference (Phoenix:
2008). < http://www.ncai.org/Home.320.0.html > (accessed
November 7, 2011).
6
Shrader-Frechette, Environmental Justice: Creating Equality,
Reclaiming Democracy.
WHYTE
standards of procedural justice in many contexts. Often
times tribes are not consulted by decision makers even
when impacts are known to affect areas relevant to tribes.
The harms caused by such ignorance have recently been
acknowledged officially by Executive Order 13715 (Con-
sultation and Coordination with Tribal Governments)
and a Presidential Memorandum on ‘‘Tribal Consulta-
tion’’ (November 5, 2009). Yet cases remain where tribal
officials and members are not adequately consulted.
Standards of corrective justice determine whether pen-
alties, deterrents, and restorative measures for actions that
impact the environment are fair with respect to commu-
nities who suffer or are more likely to suffer environmental
injustices.7 This is an important issue for Indian tribes. A
set of cases in the nineteenth and early twentieth centuries
involved non-Indian people outside of reservations who
used upstream water sources in ways that depleted the
amount of water that Indians could use. The Winters
Doctrine of 1908 restored water rights to tribes because the
express purpose for a reservation was to promote Indian
agricultural development.8 This purpose, of course, was
forced on tribes and does not represent all their water
needs, which raises concern over the degree to which the
Winters Doctrine realizes corrective justice.
Distributive, procedural, and corrective standards of
justice, however, cannot be integrated into laws, programs,
policies, and institutions without respect for tribal values
and genuine acknowledgement of tribes’ particular situa-
tions. Situational particularity refers to the differences in
tribes’ cultures, experiences with colonization, governing
capacities, and political statuses; it also refers to the fact
that tribal environmental struggles are neither reducible to
class conflicts nor to frustrated economic aspirations that
are consistent with the economic values of the dominant
society; rather, these struggles reflect historical, cultural,
social, and political issues that are experienced locally.9
These standards must also account for the sui generis nature
of tribes; that is, tribal sovereignty and lifeways pre-exist
the presence of the U.S. and other dominant societies.
The following examples express the importance of tribal
values and the genuine acknowledgement of tribes’ par-
ticular situations for justice. Part of the reason why 1,100
open dumps existed in Indian country was that the Re-
source Conservation and Recovery Act (RCRA) labeled
tribes as municipalities, not sovereign governments, which
left open a jurisdictional gap over the regulation of mu-
nicipal solid waste on reservations. RCRA did not respect
reasons why tribes have that status. Policies that reflect
7
Robert R. Kuehn, ‘‘A Taxonomy of Environmental Justice,’’
Environmental Law Reporter 30 (2000).
8
Judith Royster, ‘‘Environmental Federalism and the Third
Sovereign: Limits on State Authority to Regbulate Water Quality
in Indian Country,’’ Water Resources Update 105 (1996); ———,
‘‘Oil and Water in Indian Country,’’ Natural Resources Journal 37
(1997); ———, ‘‘A Primer on Indian Water Rights: More Ques-
tions Than Answers,’’ Tulsa Law Journal 30 (1994–1995).
9
Laura Pulido. Environmentalism and Economic Justice: Two
Chicano Struggles in the Southwest. (Tucson, AZ: University of
Arizona Press, 1996).
RECOGNITION-BASED ENVIRONMENTAL JUSTICE IN INDIAN COUNTRY
procedural justice like Executive Order 13715 will only be
actionable fairly if they are sensitive to tribal cultures and
capacities to participate in negotiations, participatory ac-
tivities, and assessments (e.g., environmental impact as-
sessments). The Winters Doctrine excludes tribal values for
land development and ignores the possibility that the ag-
ricultural origins of the reservations may be insulting to
many tribes who have different visions of food systems. It
is also invoked primarily in the West and applies only to
federally recognized tribes. Though it has been used on
behalf of tribes historically, tribal water rights may be
better served by a different policy framework.
Further illustrations of the importance of considering
tribal values and tribes’ particular situations abound.
Consider the example of pollution that affects the fish
consumed by tribal members. In the spirit of distributive
justice, the degree of contamination gets measured and an
advisory is sent out not to eat fish. To tribal members, the
advisories may also indicate that they can no longer eat
their traditional diets, which can lead to other health and
cultural harms.10 In such cases, distributive justice is only
possible if due consideration is given to tribal values on
food and to the uniqueness of the food system.
In another example, the Navajo Nation has struggled
with uranium mining during part of the twentieth cen-
tury. Tribal members who worked in the mines and who
lived near them have been physically harmed from the
contamination. Uranium, however, does not exist in the
Navajo language.11 Policy and programming efforts to
remedy the harms will only be acceptable if such cultural
unfamiliarity is acknowledged. Finally, there are also
cases where a policy or program has given due consid-
eration to tribes, but insufficient funds are allocated for it
in terms of what tribes would actually need. The work of
Dean Suagee has pointed out various cases where fund-
ing is not properly tailored to the diversity governing
capacities that are found in tribes across Indian country.12
In terms of the examples just touched on, tribal values
and situational particularity should be part of the stan-
dards used to design, implement, and evaluate policies,
10
Mary Arquette et al., ‘‘Holistic Risk-Based Environmental
Decision-Making: A Native Perspective,’’ Environmental Health
Perspectives 110, no. 2 (2002); Catherine O’Neill, ‘‘Variable Justice:
Environmental Standards, Contaminated Fish, and ‘Acceptable’
Risk to Native Peoples,’’ Stanford Environmental Law Journal 19,
no. 1 (2000); ———, ‘‘Environmental Justice in the Tribal Context:
A Madness to Epa’s Method,’’ Environmental Law 38, no. 2 (2008).
11
S.E. Dawson, ‘‘Navajo Uranium Workers and the Effects of
Occupational Illnesses: A Case Study,’’ Human Organization 51, no. 4
(1992); Susan E. Dawson, ‘‘Social Work Practice and Technological
Disasters: The Navajo Uranium Experience,’’ Sociology and Social
Welfare 20(1993); S.E. Dawson, P.H. Charley, and P. Jr. Harrison,
‘‘Advocacy and Social Action among Navajo Uranium Workers and
Their Families,’’ in Social Work in Health Settings: Practice in Contest,
ed. T.S. Kerson (New York: Haworth Press, 1997).
12
Dean Suagee, ‘‘Indian Tribes and the Clean Water Act,’’
Trends 36, no. 3 (2005); Suagee, ‘‘Turtle’s War Party: An Indian
Allegory on Environmental Justice’’; Dean Suagee, ‘‘Tribal So-
vereignty and the Green Energy Revolution,’’ Indian Country
Today, September 19 2009; ———, ‘‘Environmental Justice and
Indian Country,’’ Human Rights 30, no. 4 (2003).
201
institutions, and programs seeking to achieve distributive,
procedural, and corrective justice. This is where recognition
justice comes in. Recognition justice requires that policies
and programs must meet the standard of fairly considering
and representing the cultures, values, and situations of all
affected parties. For example, a policy satisfies recognition
justice to a small degree or not at all when it is designed in
such a way as to fail to reflect any influence from the values
of the tribes who will be affected; or, a program may be
insensitive to recognition justice when it can be im-
plemented by other entities such as states but not tribes
because tribal governmental status is not acknowledged or
the obstacles that impede the development of tribes’ gov-
erning capacities are not respected in terms of their historical
origins.13 Recognition justice must acknowledge that there
are also situations where the constraints on tribal govern-
ments render them ineffective representatives of the inter-
ests of their constituencies. In this sense, recognition justice
does not advocate for what Winona LaDuke calls ‘‘cheap-
ened’’ conceptions of sovereignty that ignore tribal gov-
ernments’ responsibilities toward their citizens.
The recognition dimensions of environmental justice
(EJ) continue to be explored by EJ scholars in relation to
Indigenous and non-Indigenous peoples, including Hu-
nold and Young (1998), Peña (2005), Cole and Foster
(2001), Figueroa (2001, 2006), Turner (2006), McGregor
(2009), Schlosberg (2009), and Whyte (2010).14 Of these
scholars, I will explore the ideas of Robert Melchior Fig-
ueroa and Deborah McGregor in relation to environ-
mental justice in Indian country.
13
Ezra Rosser’s work on tribal governments and environ-
mental organizations captures well some of the importance of
looking at tribes’ particular situations and the contours and his-
torical origins of particular tribe’s governing capacities in order to
assess the justice of various solutions to environmental problems
in Indian country, from supporting federal primacy to Indian
nation state status. See ‘‘Ahistorical Indians and Reservation
Resources,’’ Environmental Law 40 (2010).
14
Christian Hunold and Iris Marion Young, ‘‘Justice, Democracy,
and Hazardous Siting,’’ Political Studies 46, no. 1 (1998); Devon Pena,
‘‘Autonomy, Equity, and Environmental Justice,’’ in Power, Justice,
and the Environment: A Critical Appraisal of the Environmental Justice
Movement, ed. David N. Pellow and Robert J. Brulle (Cambridge,
MA: MIT Press, 2005); Cole and Foster, From the Ground Up: En-
vironmental Racism and the Rise of the Environmental Justice Movement;
David Schlosberg, Defining Environmental Justice: Theories, Move-
ment, and Nature (Oxford: Oxford University Press, 2009); Kyle
Powys Whyte, ‘‘An Environmental Justice Framework for In-
digenous Tourism,’’ Journal of Environmental Philosophy 7, no. 2
(2010); McGregor, Deborah. ‘‘Honouring Our Relations: An Anish-
naabe Perspective on Environmental Justice.’’ In Speaking for Our-
selves: Environmental Justice in Canada, edited by Julian Agyeman,
Peter Cole and Randolph Haluza-Delay, 27–41 (Vancouver, BC,
Canada: University of British Columbia Press, 2009). Robert Mel-
chior Figueroa, ‘‘Evaluating Environmental Justice Claims,’’ in For-
ging Environmentalism: Justice, Livelihood, and Contested Environments,
ed. Joanne Bauer (New York: M.E. Sharpe, 2006); ———, ‘‘Other
Faces: Latinos and Environmental Justice,’’ in Faces of Environmental
Racism: Confronting Issues of Global Justice, ed. Bill E. Lawson and
Laura Westra (Boston: Rowman and Littlefield Publishers, 2001).
Native philosopher Dale Turner (2006) devotes his volume to doc-
umenting numerous indigenous writers who describe aspects
of the politics of recognition as part of the appropriate paradigm
of justice.
202
Following Nancy Fraser,15 Figueroa sees justice as
requiring the achievement of recognition. That is, pre-
suming communities threatened by environmental in-
justices are owed fair proportions of environmental
goods and bads, the recognition dimension includes the
idea that standards of proportionality can only be de-
termined if the community members have been able to
represent their views consistently with their values and
local and historical situations in the places where they
live, work and play. Recognition is realized or neglected
in participatory processes where affected parties come
together, which may range from traditional public
participation activities like public hearings and com-
ment periods to more creative forms of engagement
such as reconciliation through citizen science and eco-
tourism.16 That is to say, it is within participatory
processes that recognition justice is affirmed or denied
to various parties.
Efforts to improve recognition justice should focus on
how best to structure new participatory processes and
reform the structures of traditional processes. In the
context of Indian country, Figueroa would evaluate
policies, institutions, and programs according to the
standard of whether they impose the environmental
heritages of dominant groups onto tribal environmental
heritages in ways that are harmful to Native commu-
nities. Figueroa defines environmental heritage in rela-
tion to environmental identity, where the latter refers to
‘‘the amalgamation of cultural identities, ways of life,
and self-perceptions that are connected to a given
group’s physical environment;’’ it encompasses values,
practices, and places. Tribal traditional diets are exam-
ples of environmental identity because they embody a
community’s ecological, religious and nutritional be-
liefs, the practices humans engage in within the food
systems, and the ultimate significance felt by tribal
members of belonging to a place from which they de-
rive sustenance.
Environmental heritage refers to the meanings and
symbols of the past that frame values, practices, and
places peoples wish to preserve as members of a com-
munity. ‘‘Environmental heritage,’’ Figueroa describes, ‘‘is
the expression of an environmental identity in relation to
the community viewed over time.’’17 Environmental her-
itage plays a large role in how tribal members understand
environmental justice because they frame current chal-
lenges with their memories of hundreds of years of
15
Nancy Fraser, Justice Interruptus: Critical Reflections on The
‘‘Postsocialist’’ Condition (New York: Routlege, 1997).
16
See Figueroa, ‘‘Evaluating Environmental Justice Claims,’’ and
Figueroa and Waitt, ‘‘Climb: Restorative Justice, Environmental
Heritage, and the Moral Terrains of Uluru-Kata Tjuta National
Park,’’ Journal of Environmental Philosophy, 7, no.2 (2010), 135–163.
My analysis of Figueroa and Waitt is adapted from K. P. Whyte.
‘‘Can ‘a’ Culture of Peace be Exploitative? An Environmental
Justice Perspective on Peace Through Tourism.’’ In Envisioning
Peace Through Tourism—A Project to Promote Human Security
Through International Citizenship, edited by L. Blanchard and F.
Higgins-Desbiolles (I.B. Taurus International, Forthcoming).
17Figueroa, Ibid., 371–72.
WHYTE
struggles against private citizens, U.S. federal, state and
local governments, and foreign powers.18
Figueroa and Gordon Waitt describe how standards of
justice relate to heritage in the case of jointly managed
tourism at Uluru (the monolithic rock) in Australia’s
Uluru-Kata Tjuta National Park. The rock is more than a
significant attraction to the tourists, having historical and
contemporary cultural significance to the Anangu people,
the legally recognized traditional owners. One of the issues
covered in their research concerns how non-Aboriginal
Australians and foreign tourists respect the wishes and the
law of the Anangu to avoid climbing the rock.
Yet, the most prominent car park locates the visitor at the foot
of the climb. The path, created with chain linked rail-supports
in 1958 by the park’s first chief ranger, Bill Harney, remains
open and highly trafficked. Indeed, any visitor passing the
foot of the climb is confronted with a moral contradiction. In
the foreground stands an unmistakable billboard, conveying
in many languages the Tjurkupa law against climbing; in
the background stretches the evidence of colonial habits
sketched across the spine of Uluru in the form of a singular
scar, a moral pathway for future climbers to endeavor. The
park must also commit resources to rescue climbers in danger,
and ward off would-be climbers during inclement weather
conditions of extreme heat and/or high winds.19
Many tourists continue to climb despite the Anangu’s
prohibition against doing so.
The Anangu do not pursue any policing style of en-
forcement to prohibit climbing because it is not seen as
culturally appropriate. First, the Anangu see acts of respect
as genuine and reconciliatory only if tourists do so out of
their own accord.20 Second, the Anangu see potential en-
forcement of the prohibition as a replication of colonial
tactics they have long suffered, and the strongest rhetoric of
the Park’s Management Plan is that Tjurkurpa (Anangu law)
directs the intentions of park policies and management.
Allowing the Australian government to enforce an Anangu
law would be problematic because it potentially perpetu-
ates the harsh legacy of paternalistic colonial tactics.21
18
Paul C. Rosier. ‘‘Fond Memories and Bitter Struggles: Con-
certed Resistance to Environmental Injustices in Post-War Native
America.’’ In Echoes from the Poisoned Well, edited by Sylvia Hood
Washington, Paul C. Rosier and Heather Goodall, 35–53. Lan-
ham, MD: Lexington Books, 2006.
19
Figueroa and Waitt, ‘‘Cracks in the Mirror: (Un)Covering the
Moral Terrains of Environmental Justice at Uluru-Kata Tjuta
National Park,’’ Ethics, Place and Environment, 11, no. 3, 334.
20
Parks Australia, Government of Australia: Director of Na-
tional Parks, ‘We Do Not Climb’ Uluru-Kata Tjuta National Park
(October 14, 2010) < http://www.environment.gov.au/parks/
publications/uluru/video/we-do-not-climb.html > .
21
Figueroa and Waitt discuss these issues in both ‘‘Climb’’ see p.
153, and ‘‘Cracks in the Mirror,’’ see p. 339. However, this is not to
suggest that the Park fails to use enforcement and staff to ensure the
safety of tourists and protection of the park’s inhabitants and ecol-
ogy. Nor does this suggest that the Anangu are entirely against the
support that civil servants such as community-based sworn police of
South Australia to maintain peace and safety within their commu-
nity. See for reference to this caveat, < http://www.papertracker
.com.au/index.php?option = com_content&task = view&id = 149&
Itemid = 1 > .
RECOGNITION-BASED ENVIRONMENTAL JUSTICE IN INDIAN COUNTRY
Figueroa and Waitt claim that the fact that many
tourists ignore the prohibition is ‘‘detrimental to pro-
moting reconciliation underpinned by a relational vision
of environmental justice.’’22 They are arguing that the
failure of tourists and non-Aboriginal tourism operators
and officials to hold themselves accountable to the
Aboriginal version of the landscape is harmful because it
makes it harder for Aboriginal and non-Aboriginal citi-
zens of Australia to reconcile the environmental injustices
of the past and present. The way in which colonial ex-
pectations of the landscape are privileged in the Park
serves to limit the possibilities for pursuing a more
peaceful coexistence between Aboriginal and dominant
societies in Australia.
One way of understanding Figueroa and Waitt’s point
is that the tourists, as members of the dominant society,
privilege their environmental heritage of the rock over
against the environmental heritage of the host Aboriginal
communities. For instance, they also challenge manage-
ment realists who justify the designated climb as a way of
restricting a free-for-all of climbers on the rock.23 En-
vironmental heritage is particularly important to com-
munities because it is part of education, family and
interpersonal relationships, religion, subsistence and
economics, and making plans for the future.
Environmental heritage also includes the experiences of
having to adapt to conditions of domination. In the case
of members of the dominant society, it includes the way
of framing landscapes and Indigenous peoples through a
colonial framework. For example, forests in the environ-
mental heritage of some Indian tribes may be understood
as places that need to be actively maintained for growing
food, hunting, and engaging in cultural traditions. For a
member of the society that colonized the region, the same
forested area may be a wild, untamed place where people
go to get away from their culture and society. Each of
these heritages is deeply felt and important. Yet, in this
example, the chances for establishing collaboration on
environmental issues are diminished if the members of
the dominant society cannot learn to see the forest as a
place of environmental heritage for the tribes.24 It is likely,
though, that the tribal members are well aware of the
other’s environmental heritage since they have to put up
with backpackers, sightseers, construction and logging
workers, and park rangers. The concept of environmental
heritage resonates with some of the examples of why
environmental justice occurs in Indian country. Some fish
advisories reflect the environmental heritage of the
dominant society. The same can be said about uranium
mining and inadequate program funding.
One area where the environmental heritage of the
dominant society imposes itself on tribes is in the very
definition of environmental justice. There is often an as-
22
‘‘Cracks in the Mirror,’’ 346.
23
Ibid.
24
For a recently published example of disagreements over her-
itages in North America, see Anne Ross et al., Indigenous Peoples
and the Collaborative Stewardship of Nature: Knowledge Binds and
Institutional Conflicts (Walnut Creek, CA: Left Coast Press, 2010).
203
sumption that tribal concerns and issues need to be pulled
into environmental justice discourse. McGregor strongly
resists this idea, and writes that
Environmental justice is most certainly about power rela-
tionships among people and between people and various
institutions of colonization .But environmental justice
from an Aboriginal perspective is more than all of these. It
is about justice for all beings of Creation, not only because
threats to their existence threaten ours but because from
an Aboriginal perspective justice among beings of creation
is life-affirming.Environmental justice is frequently pre-
sented as a relatively new concept, both in North American
and internationally. Aboriginal people, however, hold an-
cient and highly developed ideas of justice that have sig-
nificant applicability in this area.25
Tribal cultures can have their own conceptions of en-
vironmental justice that pre-exist non-tribal discussions.
Recognition justice, then, does not concern the incorpo-
ration of tribal values and particular situations into en-
vironmental justice; rather, there are diverse, sui generis
traditions of justice in Indian country. Justice is part of the
environmental heritage of many Native peoples. These
traditions of justice may differ greatly from those codified
in U.S. federal and state environmental policy, especially
as non-human beings and ecosystems are concerned.
McGregor’s work helps to clarify the idea of recogni-
tion justice that tribal values and situational particularity
should be part of the standards used to design, imple-
ment, and evaluate policies in Indian country. Recogni-
tion justice does not privilege non-tribal discourses of
environmental justice and seek to find ways to fit tribes
in. Rather, recognition justice gives priority to the host
of radically different ideas of justice that arise from dif-
ferent cultures and memories. That environmental justice
starts in the 1970s, or even the idea that Native people’s
struggles started before that, still suggests the primacy of
one particular timeline. Tribal communities have their
own traditional ways of interpreting fairness in relation to
actions and practices that impact the environment. These
interpretations have been shaped by forms of life and
histories that are distinct from other communities for
whom environmental justice also has meaning.
A recognition-based standard of environmental justice
requires that policies stemming from tribal or federal
governments will be harmful when they subvert environ-
mental heritage. Thinking of these issues in terms of en-
vironmental heritage does not suggest that any heritage
should overtake the other. Rather, the heritages should be
blended to the benefit of all affected parties. This can serve
as an important guide for planning tribal institutions,
government-to-government relations, and participatory
processes that will reduce disproportionate burdens, in-
crease environmental goods, and enhance the quality of
tribal participation in environmental decision-making.
25
Deborah McGregor. ‘‘Honouring Our Relations: An Anish-
naabe Perspective on Environmental Justice.’’ In Speaking for Our-
selves: Environmental Justice in Canada, edited by Julian Agyeman,
Peter Cole, and Randolph Haluza-Delay, 27–41. Vancouver, BC,
Canada: University of British Columbia Press, 2009, 27–28.
204
Currently a recognition-based standard of environmen-
tal justice that considers Figueroa’s, Figueroa and Waitt’s,
and McGregor’s ideas is not discussed actively enough in
policy or educational venues. In some cases people may
see themselves to be giving due consideration to recogni-
tion justice. However, I think it is important that we remain
very critical. Consider, for example, David Schlosberg’s
recent book, Defining Environmental Justice (2007). While he
is careful to consider the many communities who have
articulated environmental justice concerns, he nonetheless
writes that ‘‘their concern is most often (though not ex-
clusively) for people and communities facing environmental
risks, rather than on doing justice to an external, nonhu-
man nature.’’26 Schlosberg then goes on to discuss justice to
nonhuman nature by relying entirely on academic theo-
ries. But as McGregor argues, doing justice to all of Crea-
tion is rooted in tribal traditions and there is no sense in
which non-Native, especially academic, discussions should
be privileged over the contributions of members of tribal
communities. Simply acknowledging that local move-
ments’ concerns are not ‘‘exclusively’’ about humans and
communities is not a strong enough commitment to a
recognition standard of environmental justice.
The concepts of recognition and heritage are critical for
environmental justice in Indian country; however, three
important challenges remain for those who use and teach
them. First, recognition justice fairly considers and rep-
resents the unique situations of tribes; however, the de-
gree of uniqueness is quite high, especially with respect to
environmental heritages. There are 565 federally recog-
nized tribes. Though some are culturally similar, they can
be politically distinct and face different environmental
circumstances owing to history (e.g., Forest Country Po-
tawatomi in Wisconsin, Prairie Band Potawatomi of
Kansas, Citizen Potawatomi Nation in Oklahoma). There
are also further distinctions within the 565 federally rec-
ognized tribes. Alaska Natives, for example, are subject to
the Alaska Native Claims Settlement Act (1971), whereas
many tribes in the lower 48 states base their governments
off of the Indian Reorganization Act (1934) or state acts
like the Oklahoma Indian Welfare Act (1936).
Second, there are often disagreements between non-
Indians and tribal members and within tribal constitu-
encies on what practices count as expressions of tribal
values. This occurs frequently in the case of traditions. For
example, non-Natives may embrace policies and pro-
grams that integrate tribal traditions, yet disagree with
how tribes express their traditions. Controversies have
broken out over fishing and whaling,27 where non-
26
Schlosberg, 130.
27
George Wenzel, Animal Rights, Human Rights: Ecology, Econ-
omy, and Ideology in the Canadian Arctic (London: Belhaven Press,
1991); Rob van Ginkel, ‘‘The Makah Whale Hunt and Leviathan’s
Death: Reinventing Tradition and Disputing Authenticity in the
Age of Modernity,’’ ETNOFOOR XVII, no. 1/2 (2004); L. Nesper,
The Walleye War: The Struggle for Ojibwe Spearfishing and Treaty
Rights (Lincoln: University of Nebraska Press, 2002); J. W. Rie-
mer, ‘‘Chippewa Spearfishing, Lake Property Owner/Anglers,
and Tourism—a Case Study of Environmental Social Conflict,’’
Sociological Spectrum 24, no. 1 (2004).
WHYTE
Natives did not think that tribal members should be able
to take advantage of technologies like rifles and outboard
motors. In other cases, tribes act in ways that are con-
sidered to be entirely non-traditional, such as when tribes
site landfills on their reservations.28 Though there may be
intentions to respect tribal values in policies and pro-
grams, in specific cases there may be quite a bit of dis-
agreement and insensitivity about how tribes should
express their values within policies and programs. Ad-
vocates of recognition and environmental heritage should
be prepared for these challenges and the implicit biases
against tribes that are often factored into them.
Third, there will be cases when tribal governments
enact policies that favor or develop enterprises and tech-
nologies in ways that clash with the views of environ-
mental and environmental justice movements. The
development of coal energy on reservations is one ex-
ample. These governments may be at odds with many
tribal members as well as other stakeholders such as state
politicians and local non-Indian communities. Recogni-
tion justice must include theories of tribal accountability
appropriate to tribal governments, which include public
participation, checks and balances, and as well as other
governance mechanisms. It is key that a theory of tribal
accountability is not articulated at the expense of erasing
the colonial circumstances and history that tribes face. In
this spirit, Ezra Rosser’s work maps out many of the dif-
ficulties of creating mechanisms of accountability in In-
dian country, and discusses the different theoretical
arguments supporting five different possibilities, which
include federal administrative primacy, Indian trust doc-
trine, cooperative regulation, tribal determination and in-
ternational sovereignty, and international human rights
law.29 Like Rosser, further work on recognition justice and
heritage in Indian country must engage the debates over
which mechanisms best promote environmental justice.
These challenges suggest a critique of recognition jus-
tice that has been leveled in the literature outside of EJ.30
Though we can often clearly identify when tribal values
and particular situations are not given due consideration,
that does not mean that there are stable and straightfor-
ward expressions of tribal values, heritages, and under-
standings of situations that can be extended across all
tribes in every EJ relevant case. Tribes are constantly
changing, adapting, revising, and transforming them-
selves to respond to external challenges. Achieving rec-
ognition justice cannot rest on identifying ‘‘one size fits
all’’ conceptions of values, practices, and places. Rather,
recognition justice requires the development of creative
participatory processes that will be employed in various
cases and that aim as much as possible for the inclusion of
28
Dan McGovern, The Campo Indian Landfill War: The Fight for
Gold in California’s Garbage (Norman: University of Oklahoma
Press, 1995); Shrader-Frechette, Environmental Justice: Creating
Equality, Reclaiming Democracy.
29
Ezra Rosser. ‘‘Ahistorical Indians and Reservation Re-
sources.’’ Environmental Law, Vol. 40, p. 437, 2010 (2010).
30
See, in particular, Patchen Markell, Bound by Recognition
(Princeton, NJ: Princeton University Press, 2003).
RECOGNITION-BASED ENVIRONMENTAL JUSTICE IN INDIAN COUNTRY 205

tribal values and tribes’ particular situations into policy ronmental and social scientists, and humanities scholars
and programs with implications for EJ. who seek to design and improve dialogue in Indian
But these participatory processes cannot be successful country and cultivate good deliberative and collabora-
unless (especially) non-Native participants are open intel- tive attitudes and skills are leading crucial efforts toward
lectually and emotionally to the three challenges that were achieving environmental justice in Indian country.
just described. Though when some people are faced with
working with those of different cultures and memories, Address correspondence to:
the first impulse is to grasp, perhaps too hastily, for com- Kyle Powys Whyte
mon threads, recognition justice demands people to be 503 S. Kedzie Hall
vigilant of the tenuousness of their understanding of peo- Department of Philosophy
ple and communities at any given point in time. Improving Michigan State University
people’s collaborative and deliberative abilities are as im- East Lansing, MI 48824
portant as determining the structure of participatory pro-
cesses. Tribal officials, environmental professionals, envi- E-mail: kwhyte@msu.edu