Superfund ruling allows compensation for Tribal cultural loss

The energy transition may promise a cleaner future. But it will require extensive mining, and the United States has a poor record of cleaning up mining’s legacy – especially on Native lands.

At the Tar Creek Superfund Site in northeast Oklahoma, that legacy is visible not only in the heavy metals tainting soil and water, which can irreversibly damage children’s developing brains. It is visible, too, in the quieter decisions families make about what parts of their culture are safe to pass on.

One local Ottawa elder described how he continues fishing despite warnings that lead accumulation in fish tissue has made the catch unsafe to eat. “I am already contaminated,” he said. But he will not let his grandchildren eat the fish.

Anna Collins, a Harvard College senior and citizen of the Miami Tribe of Oklahoma, encountered the elder’s story while researching how pollution on Native lands causes both biological and intergenerational harm, altering what elders teach and what younger generations inherit.

Her research has unfolded alongside a federal ruling that removes doubt about companies’ liability when environmental damage disrupts Tribal culture.

Restoring cultural continuity

CERCLA, the federal statute behind Superfund, uses settlement funds from historic polluters to compensate the public for harm – both direct and indirect – to rivers, fish, wildlife, and ecosystems. Through natural resource damages assessments, Tribal, state, and federal trustees quantify the public’s losses, recover damages from responsible parties, and allocate funds to restoration projects meant to make communities whole.

Last September, and again this past February, the U.S. Court of Appeals for the Ninth Circuit held that Tribes could pursue claims for injuries that include a cultural component. The case, Confederated Tribes of the Colville Reservation v. Teck Cominco Metals, centered on decades of discharges into the Columbia River system by Teck Cominco, a Canadian smelting company. Court documents say the releases included tens of thousands of tons of lead and other heavy metals.

Teck Cominco argued that recovery for both nontribal recreational fishery and tribal subsistence fishery would constitute “double recovery,” which CERCLA guards against. The firm agreed to pay damages for recreational fishery loss, but appealed the Tribes’ claims for cultural subsistence injury loss. The Tribes successfully argued that such cultural injury is distinct from recreational fishing.

The ruling “broadens the scope of Tribes’ ability to seek claims for injury,” said Collins. “Before this ruling, it was far easier for companies like Teck to avoid paying damages for cultural injury loss.” The ruling recognized, in effect, that the harm does not end with contamination itself. It also reaches the traditions, practices, and relationships to the land that contamination can interrupt.

Restoring more than land

That principle comes into sharper focus at Tar Creek, where restoration has been shaped not only around contamination, but also around what contamination has broken.

In a recent essay for the American Bar Association, Collins describes participating in the pilot Tar Creek Apprenticeship Program in the summer of 2024, when several dozen Native youth from seven Tribal jurisdictions in Oklahoma came together to learn on and from a contaminated landscape.

At Tar Creek, Collins said, Tribal trustees and federal officials developed the apprenticeship concept to address the community’s ability to pass on traditional knowledge. “Tribal trustees argued for restoring community connection to the land and traditional methods of teaching,” Collins said. “This is what restoration would look like to us,” she recalled them saying. “It has to include cultural components.”

The program taught practical skills and the ongoing limits imposed by contamination. “We would learn about hunting and fishing, like how you skin and tan a hide and make moccasins from it,” Collins recalled. “But then the instructors had to warn us: ‘Don’t go out and do this on your own because it’s not safe around here.’”

Those warnings expose the limits of one-size-fits-all risk guidance. Because subsistence lifestyles involve deeper, culturally specific use of local resources, Tribal communities can face greater exposure and greater loss. For example, in Tar Creek the fish advisories written by state and federal officials are based on recommended maximum consumption of fillets. But that well-intentioned guidance underestimates the risk for Cherokee people who often eat the whole fish, including lead-accumulating bones. “Maybe the advisory says that it’s safe,” Collins said, “but for us, at the level we engage with natural resources, it’s not actually safe.”

Restoration, redefined

The innovative cultural redress embodied in the Tar Creek Apprenticeship Program could be at risk if courts narrow what counts as compensable use, said Andrew Mergen, a Harvard Law professor and former senior Justice Department environmental appellate lawyer. Mergen called the Teck Cominco ruling “really significant.”

A purely ecological accounting misses the injury, Mergen argued: “If we limit natural resource damages to a poisoned river and dead fish, we don’t address the cultural impacts.”

As demand rises for minerals critical to the energy transition, more extraction is likely to land near Native communities. Collins argued that Native people are often “out of sight” in public consciousness, shaped by what she called a “‘vanishing Indian’ trope” that treats them as absent and their land as “free and open.” A 2021 study underscores the proximity: It found that 97 percent of nickel, 89 percent of copper, and 79 percent of lithium deposits in the United States are located within 35 miles of Native lands.

Tar Creek points to a different approach. When Tribal governments help set the terms, restoration can mean more than stabilizing a site or replanting habitat. It can look like young people learning skills, learning limits, and learning how to care for a watershed that has shaped – and constrained – their lives. And in a legal system where Tribal citizens are “used to losing in courts,” Collins said, the Ninth Circuit ruling felt like a rare opening.

-As told to David Trilling