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Court of Appeals rules in favor of SBT's against FMC corp.

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Friday, 18 April, 2014

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At left, Fort Hall Business Council Chairman Nathan Small testifies during the trial. (Lori Edmo-Suppah photo)

Court of Appeals rules in favor of SBT's against FMC corp.

Sho-Ban News
FORT HALL — The Shoshone-Bannock Tribes Court of Appeals ruled in favor of the Shoshone-Bannock Tribes April 15 in a trial against the FMC Corporation.
The three tribal appellate judges Peter D. McDermott, Vern E. Herzog Jr. and John Traylor unanimously ruled the activity at the FMC site and the site itself have created a significant “threat or has some direct effect on the political integrity, the economic security or the health or welfare of the Shoshone-Bannock Tribes” and the impact has occurred. The judges ruled the threat exists today and will likely exist for the foreseeable future. The decision also awarded the Tribes attorney fees.
The FMC Corporation operated its phosphate plant on fee lands within the boundaries of the Fort Hall Indian Reservation from 1949 to 2001. The site has an estimated 16,000 to 20,000 tons of reactive and ignitable elemental phosphorus north of the old furnace building that remains at the plant location.
The ruling grants the second exception under the U.S. Supreme Court case Montana v. United States that shows that FMC’s activity threatens or directly impacts tribal political integrity, economic security or health and welfare of the Tribes. An earlier Tribal Court decision in June 2012 granted the first exception of the Montana case that said FMC formed a “consensual relationship” with the Tribes through agreements and express consent to tribal jurisdiction. That ruling also said the Tribes have jurisdiction over FMC to require a $1.5 million permit for FMC’s storage of hazardous waste on the Fort Hall Indian Reservation and awarded the tribes costs and attorney fees.
The Montana v. United States Supreme Court case addressed the Crow Nation’s ability to regulate non-Indian hunting and fishing on reservation land owned in fee by non-members of the tribes. In the case, the Supreme Court recognized two exceptions where tribes have jurisdiction over non-Indian activity on fee land. First, a tribe may “regulate through taxation, licensing or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” Second a tribe has “civil authority over the conduct of non-Indians…when that conduct threatens or has some direct effect on the political integrity, economic security, or the health and welfare of the tribe.”
Tribal attorneys Bill Bacon and Paul Echo Hawk represented the Tribes. Bacon said they wanted both exceptions of the Montana case to have a stronger case in federal court.
The trial was expected to last up to a month but ended after 10 days.
FMC spokesman Paul Yochum said they are disappointed with the decision but intend to appeal to federal court.
Fort Hall Business Council Chairman Nathan Small said the court made a really good decision, “They touched all the bases — they felt we met all the tests that were done by the prior courts – Montana, Brendale — all of those cases.” He said the Tribes attorneys and witnesses did a good job in presenting the case.
Small testified in the trial April 4. He talked about when growing up and being able to swim and fish in the Portneuf River that is located near the old FMC plant. He said when he was small, his family wasn’t well off but they survived through subsistence and lived off the land more than they do now. Their family was able to gather whether it was berries, medicines or animals. The Portneuf area and the Bottoms has always been a place for the tribal people to go. “A lot of the plants and medicines that were down there were all given to me and shown to me by my uncles and so I had a good idea of what the area is all about.” Red bark willow trees used to be gathered for shade lodges for Sundances, along with medicines, also taken to the Sundance grounds. After the ceremony a majority would go down to the streams and springs to cleanse themselves.
He testified because of the situation now, he personally doesn’t use the area for collection. He may fish but doesn’t take it home. A lot of tribal people don’t use the area, “It’s just because there is a knowing or a feeling that this place just isn’t what it used to be, it’s not pure anymore, it’s not rejuvenating nature.” He added there are things in the water that may hurt you.
Concerning the importance of water he said water is life and without water there is no life. He said clean air and ground is also life. “You need those three things to live and sustain yourselves.” “Our people use those three things to sustain themselves and live.”
Regarding the Tribes general health and welfare, Small said they want to ensure that where the tribal people are living, because it’s a permanent homeland that those things that could damage or hurt our people in some way or form needs to be talked about. He said the tribal people have seen all of the contaminants that are being released through the water and the air and ground movements and it’s a threat to the Tribes health and welfare.
Small said he’s done a lot of reading on the subject and it’s going to remain reactive the next 10,000 years. “I mean that’s a long time to live near a toxic waste dump like this one we have – it’s not conducive to our health and welfare of our people.”
Small said there are a lot of respiratory problems and he’s seen a huge increase in cancer-related health problems. He’s also seen a lot of other types of diseases that they’ve never heard of that are now hurting the tribal people. He added the Tribes don’t have to look too far – the FMC site and Simplot site is where the health problems are occurring and coming from. “If they weren’t there maybe we wouldn’t have all of our issues with health problems that we have now.”
He gave further testimony on the significant tribal laws and sovereignty.