On Monday, the U.S. Supreme Court delivered a single, massive victory to one of the thousands of communities and tribal nations currently struggling with the toxic waste left behind by profitable corporations. The court denied to hear the case FMC Corp. v. Shoshone-Bannock Tribes. FMC Corporation, as a result, is stuck with the lower court’s ruling, which is that the company owes the Shoshone-Bannock Tribes a multimillion sum for polluting tribal lands and skipping town.
Both American governments and corporations share a long history of seizing Native lands, extracting natural resources, and abandoning the poisonous dumps that result. While the Shoshone-Bannock case might be particularly preposterous, it’s one of many cases in which a tribal nation has had to spend decades battling in court to get justice simply to maintain their lands and water. It’s also one of many cases both on and off tribal land in which corporations have turned a profit by leaving disempowered communities, as well as the federal government, with messes almost impossible to clean up.
FMC Corporation is a chemical manufacturing company based in Philadelphia that operates globally. For over half a century, from 1949 to 2002, FMC operated a phosphate mine and fertilizer plant in Pocatello, Idaho. In that time, the plant produced 22 million tons of phosphorus sludge—which is toxic if absorbed, ingested, or inhaled and explodes upon exposure to air—that was then stored on the Fort Hall Reservation, the present home of the tribal nation. According to the Idaho State Journal, one of the disposal methods that FMC employed involved burying 21 tanker rail cars with phosphorous sludge, an alternative to the more expensive cleaning process. FMC opted to bury the phosphorous tankers because the company concluded that cleaning them would be “dangerous to employees,” per Indian Country Today.
In the late 1990s, the Clinton administration’s Environmental Protection Agency zeroed in on the plant and its waste. To avoid significant EPA cleanup fines, the company opted instead to pay a $1.5 million annual permit fee to the Shoshone-Bannock Tribes to store the waste on-site. But since December 2001, FMC has failed to pay the tribe the agreed-upon sum, leading to a two-decade legal struggle that now may finally be drawing to a close.
The company’s rationale for not paying the fees has been that the toxic waste storage agreement only applied while its plant was up and running; any financial responsibility ended with the plant’s closure in 2001—an understanding that the tribal nation, which will have to live with ignitable phosphorous below its feet for generations to come, does not share. Further compounding matters for the tribal nation is the fact that the site is situated close to the Portneuf River and the Fort Hall Bottoms, meaning that groundwater contamination by any of the leaking phosphorous pools would have a dire effect on the tribes’ ability to access and use it.
The Shoshone-Bannock Tribes took the company to court, where they have, to put it plainly, wiped the floor with FMC. Grasping for any available option to duck the payments, FMC countered the tribes’ lawsuit by attacking the nation’s sovereignty, claiming in numerous appeals that the nation did not have jurisdiction over non-Indian business operations on what is known as fee land (in this case, the area on the reservation now declared by the EPA as a Superfund site). In 2017, the Idaho Federal District Court ruled against FMC and found the company owed the tribal nation $19.5 million for unpaid permit fees from 2002 to 2014. (The EPA, which itself is spending $47 million over the next three decades on site maintenance, has estimated that a full cleanup of the site that included removal of the sludge would run over $4 billion.) A three-judge panel from the Ninth Circuit Court of Appeals then agreed in 2019 that the tribes do, in fact, have jurisdiction over third-party pollution that occurs on their lands. From the Ninth Circuit’s ruling:
Under the first exception, a tribe may regulate the activities of nonmembers who enter into consensual relationships with the tribe or its members. Under the second Montana exception, a tribe retains inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. The panel held that, under the first Montana exception, the Tribes had regulatory jurisdiction to impose the permit fees because FMC entered into a consensual relationship when it signed a permit agreement with the Tribes. The panel held that FMC’s conduct of storing hazardous waste on its fee lands within the reservation fell within the second Montana exception.
This likely seems very in-the-weeds and arduous. That is precisely the point. Case law on jurisdiction over non-Natives in Indian Country is tangled and tricky because America only started really treating tribes as sovereign nations about 50 years ago. Pursuing a lawsuit against an international chemical manufacturing corporation within the American legal framework is already both time-consuming and extremely costly; it’s rare that tribal nations have either time or money to spare, particularly when a major employer leaves town and leaves behind a mess that could potentially poison tribal citizens for generations to come.
That the Shoshone-Bannock Tribes have been able to reach the light at the end of the tunnel—albeit, with the understanding that they now have to maintain these highly toxic contaminants for decades—is nothing short of miraculous. But it is worth remembering that they are not alone in having to spend years fighting for justice from extractive corporations, and many challenges haven’t ended in success. In 1997, Tenneco Oil was required by the Justice Department to pay for a new water system and land damages for polluting the Sac and Fox Nation’s groundwater via waterflooding. A decade later, the Keweenaw Bay Indian Community of the Lake Superior Band of Chippewa stood against an ore mining operation, only to spend seven years in court and have an appeals court approve the mine. A decade after that, in 2017, the EPA announced an estimated $600 million settlement agreement for the Navajo Nation, to be paid by two subsidiaries of Freeport-McMoRan, which for five decades polluted Navajo lands with 94 since-abandoned uranium mines. It’s a cycle, and thus far, it is unbroken.
Don’t be mistaken: Monday’s ruling in FMC Corp. v. Shoshone-Bannock Tribes is good news. It’s a tribal nation fighting and winning not only the financial ability to protect its people but another acknowledgement by the Supreme Court that tribal sovereignty can no longer be casually ignored. But the next step—ensuring that tribal nations can proactively create self-sufficient economies that don’t have to rely on extraction or hazardous industrial activities to buoy them—remains a problem with answers as varied as the tribes themselves. Until America enters a space in which it can agree that these extractive operations need to be approached in a wholly different way, and possibly halted completely, settlements and appeals rulings will be the only hope many tribal nations have.