A Railroad Runs Through It: Wisconsin Territorial Dispute

Native Americans block hazardous waste shipments

Eight Chippewa warriors drummed, prayed, and slept on a remote Wisconsin railroad track this summer, blocking shipments of sulfuric acid from crossing the Bad River Indian Reservation for 28 days.

Though the blockade ended last month, the protesters' mission continues: Railroad officials have vowed not to ship any chemicals through Bad River until a consensus can be reached with tribal leaders over the environmental risk of shipping acid across miles of rivers, swamps, and forest land.

Increasingly, native American tribes across the country are butting heads with the federal government over their authority to control what happens on their reservations and the US government's rights to serve its broader needs.

In Wisconsin, tribal officials insist they should be able to ban hazardous materials from their territory. "We do believe we are a nation. As such, we should have the authority over what happens on our lands," says John Wilmer, Bad River's tribal leader.

On the other side, Wisconsin Central Ltd. railroad claims it has the right to ship sulfuric acid along its rails because federal transportation laws supersede any limitations that states or Indian reservations put on the transport of hazardous waste.

It's a dispute that transcends this standoff. In Minnesota, Idaho, Nevada, and California, battles have heated up over transporting nuclear and hazardous wastes. Use of national parks for tribal ceremonies and gambling privileges are also controversial elsewhere in the US.

Questions of tribal sovereignty and environmental protection are particularly sensitive, says Ian Zabarte, a member of the Western Shoshone tribe, which is fighting nuclear waste and mining issues in Nevada and California.

"Our spirituality emanates from the land. These are the mountains and valleys our people know. Our land has not been set aside through treaty as a nuclear-waste dump," he says.

A growing number of native American groups are claiming that 19th-century federal treaties allow them to regulate hazardous materials on their reservations. But their legal footing is uncertain.

The Bad River blockade succeeded, in part, because local law-enforcement officials refused to remove armed warriors from the tracks. A federal mediator was brought in and negotiations will continue through this month.

But if talks fail and the issue goes to court, Wisconsin Central lawyers will cite previous court rulings that favor unrestricted interstate commerce. In 1991, the Prairie Island Lakota tried to regulate nuclear-waste shipments through their reservation in southwest Minnesota. Northern States Power Co. sued, claiming the tribe was violating federal hazardous-waste transportation laws. A Minnesota court agreed with the power company, setting a legal precedent.

"The court ruled that tribes do have government authority within their boundaries, but it is subject to the authority of the US government," says Kurt Bluedog, a Minneapolis attorney who represented the Prairie Island Lakota.

Still, Mr. Bluedog says the decision left tribal governments some freedom to develop their own regulations: "I don't think that's the end of the situation. Tribes could craft laws that would be more in compliance with federal regulations."

While the courts haven't given tribes the legal right to control transport of hazardous materials, tribal governments continue to push for greater control. Last October, police officers with Idaho's Shoshone-Bannock tribe blocked nuclear waste headed for the Idaho National Engineering Laboratory. The blockade lasted only five hours, but US officials continue negotiating shipping terms with tribal leaders, who were left out of previous state and federal negotiations over using the lab as a storage facility.

In Wisconsin, Mr. Wilmer says the tribe's efforts will benefit adjacent white communities: "As we develop our own environmental codes, it's going to provide a sense of security for our neighbors."