Maine Indians on choice of nuclear waste sites: `Why us?'. Tribes say selection process violates rights

The irony is inescapable. Six years ago, the Penobscot Indians finally gained legal rights to their remote tribal lands in eastern Maine. Today, the US Department of Energy (DOE) is thinking about burying high-level nuclear waste under those same ancestral grounds.

To angry Indians living here on a small island in the Penobscot River, it's not just ironic. It's illegal.

Energy Department officials say they pegged the so-called Bottle Lake region as one of 12 ``potentially acceptable'' waste sites in the eastern United States because of a solid granite shelf far below the land's marshes and lakes. That may make it a safe home for high-level nuclear waste, which is expected to remain radioactive for over 10,000 years.

But the selection process ``violated the responsibilities that they owe to the tribes and their lands,'' says Jennifer Wriggins, a Portland-based lawyer working for the Penobscots. In particular, she says, the agency failed to observe the basic Indian rights spelled out in the 1980 Indian Claims Settlement Act and the 1982 Nuclear Waste Policy Act.

Of course, the Penobscot Indians are not alone in lashing out at the Energy Department. Since the agency announced the sites on Jan. 16, it has heard everything from level-headed scientific arguments to sheer outrage from people living in the affected areas. That includes four other tribes and six other states -- Minnesota, Wisconsin, Georgia, North Carolina, Virginia, and New Hampshire.

Now, with only 15 days left in the 90-day response period, geologists for the states and tribes are scrambling to construct rock-solid counterarguments. Citizens are rallying to protect their home towns from even the threat of a nuclear waste site.

This kind of activism hit states west of the Mississippi River in the late 1970s, when the DOE began winnowing through its list of nine possible sites. In December 1984 it narrowed its choices to three: one each in Washington, Texas, and Nevada. The department plans to whittle that down to a single site by 1991.

Now the agency is searching for a second repository site it can recommend by 1998. Protesters hope that geologic arguments will support their charges that the DOE is proceeding too hastily.

At Maine's other ``potentially acceptable'' site, in the popular Sebago Lake area, state geologists argue that high-level nuclear waste would endanger the water supply of Portland, the state's largest city.

Fewer people are raising a ruckus in the unpopulated and more conservative Bottle Lake region. But the case there is more tangled by legal complexities. Lurking in the background is an issue that could mushroom into an international dispute: Nearly half the Bottle Lake site drains into the St. Croix River, which marks the US-Canadian border.

But the chief issue now is Indian rights. Ninety percent of the 92-square-mile site is potential trust land for both the Penobscots and the Passamaquoddy, a tribe that lives close to the Canadian border. ``The DOE has erred by totally ignoring the trust responsibility that exists between every federal agency and every Indian tribe,'' says Ms. Wriggins.

``We were [also] asking for equitable treatment under the Nuclear Waste Policy Act,'' says Penobscot geologist Theresa Secord, noting that the 1982 measure requires states and Indian nations to be treated equally. ``We ended up with $30,000 for four months; the state of Maine got $750,000 for the past three years.''

``We haven't treated them equally,'' concedes Richard J. Schassburger, the DOE official in charge of daily interaction with the states and tribes. ``But it's based on the fact that we didn't identify [the Bottle Lake Complex] formally as a rock body we were going to continue the process with until September of '85.''

Ms. Secord shakes her head at the notion: ``We have evidence that shows DOE was considering Bottle Lake as early as 1983.''

But the Nuclear Waste Policy Act doesn't require the DOE to grant research money to states and tribes until it confirms the ``potentially acceptable'' sites, says Mr. Schassburger. And that won't be until later this year. States were offered money just to help out with research, he says.

Excluding Indians from the research process was just outright ``bias,'' says Secord. She gazes wearily at the tables stacked with DOE reports, geological maps -- and rocks. Outside, a few of the 1,200 Penobscots gather in the community center to plan a fundraiser for the effort to block the nuclear waste site. Many here find it suspicious that five of the nation's 28 Indian tribes were affected by the ``potentially acceptable'' sites.

DOE officials say they chose Bottle Lake -- one of the last two sites selected -- because ``it has better data.'' To longtime activist Alva Morrison, that means they ``manipulated their procedure to bring them around to sites where they already have a data base.'' And according to state geologist Walter Anderson, it's just more evidence that ``there are other things driving this program than safety'' -- namely, the ``unrealistic timetable'' set up by the Nuclear Waste Policy Act.

But Schassburger says DOE is in no hurry at all. ``We're in this to site a safe, high-level nuclear waste repository. If that takes additional time, i'm sure we'll do it.''

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