Indigenous America, Underwater
The loss of these lands are likely disproportionate in Indian Country
An astonishing amount of traditional lands belonging to Native Nations was lost during treatymaking, but even after treaties have been signed and ratified as the law of the land,1 that land protected by treaties continued to be swept away. 2
One of those ways of taking more land has been through intentional flooding for dams. This meant forced removal of Native Nations to other locations, with their historic and sacred places in a watery grave, their lands never to be seen again. There seems to be a disproportionate selection by the federal government of Native Nations’ lands for these public projects. One reason to select Native Nation’s lands is because the Secretary of Interior holds these lands in trust for Native Nations and makes paternal decisions on behalf of Native Nations for the use of their lands, often without consultation, or where consultation is just a pro forma step for compliance. Just like a trustee holding valuables in trust for a beneficiary, the federal government is expected to act in the best interest of the Native Nations in their handling of their land. Failing to do so is a breach of trust. It is hard to imagine the federal government was taking their responsibility seriously given the actions such as in these examples of flooding projects.
The Mandan Nation in North Dakota lost 154,000 acres of farmland, their tribal nation’s capital city, several other cities including their hospital to intentional flooding by the federal government to create the Garrison Dam in 1953.3 Forced to sign a removal agreement, the Chairman of the Mandan, Hidatsa and Arikara nations is quoted as saying:
We will sign this contract with a heavy heart … With a few scratches of the pen, we will sell the best part of our reservation. Right now the future doesn't look too good to us.
—George Gillette, chairman of the Mandan, Hidatsa, and Arikara Nations, 19484
The Eastern Cherokee Tribe filed a complaint and asked the court to stop the flooding of an area of their traditional and sacred homelands that included a large cemetery and important built and natural structures, in 1980.5 The American Indian Religious Freedom Act based on the First Amendment that protects the right to practice one’s religion had just been enacted but failed to protect this sacred area. The federal government could not act to save the land because it would entangle the government in religion. Since the federal government has plenary power to regulate Indian affairs, there will always be entanglement with government in any attempt to protect sacred sites. Besides, the court in dicta indicated they believed it was just tradition that the Cherokee wanted to protect not religion disregarding any consideration of the trust responsibility of the U.S.. The court said:
However, the documents in the record indicate that the Cherokee objections to the Tellico Dam were based primarily on a fear that their cultural heritage, rather than their religious rights, would be affected by flooding the Little Tennessee Valley.6
Thus, the area was flooded for the Tellico Dam. (You may recall the famous snail darter fish case, TVA v. Hill,7 nearly stopped the construction of the Tellico Dam based on the Endangered Species Act. The snail darter was far more likely to stop the dam than the Eastern Cherokee, based on any right to protect their religious spaces.)
The historic towns of Old Keowee and New Keowee towns and the burial grounds were flooded with the creation of Lake Keowee, in the early 1970s, by Duke Energy. Excavations were for the benefit of the University of South Carolina, not for the Eastern Cherokee. No support for removal of the burial grounds or any other accommodation is in the record.
In 1956, the Seneca Nation was flooded by the Kinzu Dam in order to afford flood protection to Pittsburgh. The Seneca Nation lost nine communities and 10,000 acres of their reservation lands to the dam. The Seneca Nation appealed to the courts8 to enforce the 1794 Treaty of Canandaigua9 that established in federal law a "permanent friendship" negotiated by Pres. George Washington, between the United States and the Iroquois Confederacy, of which the Seneca Nation was one of six Nations in that Confederacy.
The court held that Congress could dispose of Indian land despite any treaty if they so decided. The court cited a long line of cases holding that the federal government could dispose of Indian lands and dismissed the idea that the sovereignty of Native Nations had any dominance over federal eminent domain powers. The Seneca Nation proposed alternatives with engineering firms, arguing the project they proposed was not the best solution to protect Pittsburgh.10
This flooding during the 1950s era was called the Termination Era in Indian Policy for the federal government. The movement to terminate tribal nations was well underway and all proposals to the contrary fell on deaf ears of the Executive, Legislative and Judicial Branches. The Seneca Nation lost their battle to stop the flooding of their reservation. One survivor of the flooding speaks of the near end of their language with the burning down of their houses followed by the death of many of the elder speakers of the Seneca language.11
But the Seneca Nation is still here, and a resurgence of culture is underway.12
Mining is the New Flooding Project
The continuation of this practice of taking more treaty-guaranteed land or traditional lands granted for traditional hunting, fishing and gathering through acts of Congress continues — but has taken a new form. The “Green Energy” initiative has led to a wave of mining projects that are funded by the federal government and have the same effect as the mining projects. The destruction of Native Nations’ lands through implosion into a crater a mile deep or more, is what can be expected from massive surface mining operations like the Oak Flat site that is considered sacred by the San Carlos Apache Nation. The Lithium mine that is planned for a sacred battleground of the Shoshone Paiute Nation and other western Native Nations in Nevada is close to beginning.13 Uranium mining has contaminated the soil and water in lands of the Navajo Nation, the Pueblo of Laguna, the Pueblo of Zuni, the Hualapai Tribe, the Tohono O'odham Nation, the Spokane Tribe of Indians, and the Ute Indian Tribe.14
As we look back on Indigenous America, underwater, it was destructive where there were likely better and more effective alternatives. Will we also look back on the era of ironically destroying the land with mining for copper, lithium and uranium in the name of “Green Energy” and see yet another breach of trust by the U.S. government to Native Nations?
U.S. Const., Art. VI.
https://www.vox.com/2014/6/19/5824380/the-theft-of-native-americans-land-in-one-animated-map
https://clui.org/newsletter/spring-2005/immersed-remains-towns-submerged-america
https://www.nlm.nih.gov/nativevoices/timeline/489.html s
Sequyoah v. T.V.A., 620 F. 2d 1159 (1980).
Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 at 1162 (6th Cir. 1980).
TVA v. Hill, 437 US 153 (1978).
United States v. 21,250 Acres of Land Etc. , 161 F. Supp. 376 (W.D.N.Y. 1957) (and an accompanying case with another 5,000 acres at issue).
https://americanindian.si.edu/nationtonation/treaty-of-canandaigua.html
https://www.ehn.org/seneca-nation-kinzua-dam-2644943791.html
https://www.wgrz.com/article/sports/outdoors/the-tragedy-of-the-kinzua-dam/71-445448395 (this is a news story about the Seneca Nation history around the Dam).
https://www.ehn.org/seneca-nation-kinzua-dam-2644943791.html
https://www.npr.org/2023/06/28/1184812267/western-tribes-last-ditch-effort-to-stall-a-large-lithium-mine-in-nevada .
https://www.goodenergycollective.org/policy/the-legacy-of-uranium-mining-on-us-tribal-lands