Indigenous Peoples and the Justice40 Screening Tool: Lessons from EJSCREEN

Abstract

The Biden-Harris administration has focused considerably on environmental justice (EJ), including the Justice40 Initiative and renewed White House Council on Native American Affairs. This work has included financial investments in Tribal economies, prioritizing Tribal health care, and major Tribal infrastructure investments as part of current passed bills and active proposed legislation. The Justice40 Initiative aims at delivering at least 40% of the benefits of federal investments in climate and energy to disadvantaged communities, including many Tribes. The recent White House Tribal Nations Summit Progress Report discusses Justice40 and its potential benefits related to climate, energy, transportation, housing, pollution, and infrastructure. The report leaves open the question of how Tribes will benefit from Justice40. Currently, the White House Council on Environmental Quality is developing a new Climate and Economic Justice Screening Tool for identifying disadvantaged communities who qualify for Justice40 investments. Executive Order 14008 references how this new screening tool should be based on lessons learned from EJSCREEN. For Tribes, however, EJSCREEN does not adequately represent infrastructure and other EJ needs relevant to the goals outlined in Justice40. In this article, we will discuss issues with EJSCREEN that must be addressed in the forthcoming screening tool that was released in prototype form for public comment on February 18, 2022. Major gaps in EJSCREEN include ones in data regarding mining, energy extraction, cultural landscapes, meaningful spatial boundaries, and qualitative data in general, as well as the fundamental issue of engaging with Tribes. These concerns must be addressed if Tribes are to be accurately represented by the tool such that they may fully benefit from Justice40 investments. However, there may be ethics and sovereignty issues that will make some data unavailable at the national scale, or shortages in the United States and Tribal capacity to coordinate the formation of data sets.

INTRODUCTION

The Justice40 initiative aims at distributing 40% of certain benefits from U.S. federal investments to “disadvantaged communities.” The targeted investments are in climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, training and workforce development, the remediation and reduction of legacy pollution, and the development of critical clean water infrastructure.¹

The development of a Climate and Economic Justice Screening Tool (CEJST) is a major component of Justice40. CEJST intends to complement the already existing EJSCREEN from the U.S. Environmental Protection Agency (EPA). CEJST will publish annual interactive maps identifying disadvantaged communities.²

EJSCREEN, however, has not adequately captured the environmental justice (EJ) concerns of many Indigenous peoples. Though the tool continues to be updated, including improvements on the issues we raise here.³ Learning lessons from EJSCREEN is one key to unlocking some of the potential good of the CEJST. This article reviews the history of federal EJ policy and, in particular, EJ screening tools, to show how EJSCREEN misses significant Indigenous EJ concerns. These lessons from EJSCREEN inform a series of recommendations for making the CEJST more inclusive of Indigenous peoples, such that they may fully benefit from Justice40 investments.

INDIGENOUS PEOPLE AND ENVIRONMENTAL JUSTICE IN THE UNITED STATES

Indigenous scholars and leaders have sought to specify how EJ relates to the environmental issues Indigenous people face.⁴^,⁵ Indigenous EJ is about Indigenous peoples' self-determination—that is, their self-governance capacities, legal authorities, and land tenure to stop their communities from facing contamination from harmful pollutants and ecological degradation of economically and culturally significant lands and waters.

Numerous vectors of environmental injustice affect Indigenous peoples, including energy and transportation infrastructure, mining, deforestation and industrial agriculture, tourism and recreation development, and conservation projects such as wilderness areas and national parks, among others. Each of these vectors is compounded by legal and administrative barriers and social discrimination that prevent Indigenous peoples from exercising their self-determination.

ORGANIZING AND SCHOLARSHIP

Indigenous people in the territories that would forcibly become the United States faced environmental injustices as early as the late seventeenth century. Colonial governments dispossessed them of their territories, degraded their lands, and refused to respect their self-determination and sovereignty.⁶ Between the American Revolution of the late eighteenth century and the decade following the U.S. Civil War in the late nineteenth century, Indigenous peoples were pressured or coerced into various treaties, agreements, land seizures, and property privatization regimes that significantly reduced the extent of their territories.⁷

Later in the nineteenth century, through policies such as the Dawes Allotment Act and militant actions such as the U.S. overthrow of the Kingdom of Hawaii, the U.S. continued to seize control of territory from Indigenous peoples. Both of these examples led to Indigenous peoples losing control of 95 million acres of land on top of losses of access to marine areas. Compounding land dispossession, Indigenous peoples have been subjected to financial losses due to discrimination against equal participation in economic development opportunities, damages from extractive processes used by large mining companies and from infrastructure development, and forced cultural assimilation.⁵

Though these struggles have evolved and diversified over the years, they are critical in understanding how Indigenous peoples are uniquely situated within the more widely recognized narrative of the U.S. EJ movement. As this movement emerged in the late 1970s and early 1980s,⁸ Indigenous people led and participated in direct action, proposals for policy change, and research oriented toward addressing environmental racism and inequality.

For example, LaDuke's writings from that period document the struggles against uranium mining and other dirty energy projects with negative health, ecological, and economic impacts on Indigenous peoples.⁹ The Indigenous Environmental Network, formed formally in 1990, was established by grassroots Indigenous activists seeking to address EJ issues through building the capacity of Indigenous communities and governments.¹⁰ Indigenous leaders attended the First National People of Color Leadership Summit in October 1991 and heavily influenced the 17 Principles of Environmental Justice that emerged from the Summit.¹¹

At the same time, the best-known studies of environmental injustice from the 1980s, including the 1983 Government Accountability Office study and the 1987 United Church of Christ study, brought attention to racial disparities, but did not investigate Indigenous self-governance, legal authority, or land tenure. Indigenous organizations and scholars were publishing widely during the same period.

Some examples of this are the publications of the Institute for Natural Progress or by individuals such as John Redhouse, which addressed the degradation of Indigenous lands from the energy sector.¹² Lesser known are the reports and studies on Indigenous EJ tied to governance, legal authority, and land tenure, including a multitude of studies on Indigenous rights issues, land dispossession, and traditional ecological knowledge, among other topics, that were also published in the 1980s.¹³^,¹⁴^,¹⁵^,¹⁶^,¹⁷

FEDERAL POLICY AND EPA

Some aspects of Indigenous EJ gained traction with EPA when the agency initiated its Policy for the Administration of Environmental Programs on Indian Reservations (“Indian Policy”) in 1984. The policy outlined a set of principles meant to guide the agency in consultation with federally recognized Tribes as sovereign entities for decision making on reservation lands.¹⁸

Later, following the University of Michigan's 1990 Conference on Race and the Incidence of Environmental Hazards, the EPA took up broader EJ policy discussions, establishing the Environmental Equity Workgroup.¹⁹ The Workgroup was tasked with assessing the evidence that poor communities and communities of color were disproportionately burdened by environmental hazards and identifying ways for EPA to address these inequities.²⁰ Though the agency's “Indian Policy” already existed in relation to some Indigenous peoples, the Workgroup served as one initial step in federal work to address EJ.

The Workgroup addressed several specific aspects of Indigenous EJ, including issues related to tribal traditional lifeways and subsistence lifestyles, infrastructure development, and various institutional barriers to mitigating environmental risks.²¹ Based on the Workgroup report's suggestions, EPA established the Office of Environmental Equity (later renamed the Office of Environmental Justice/OEJ) in 1992 to coordinate agency efforts to “decrease environmental burdens, increase environmental benefits, and work collaboratively to build healthy, sustainable communities.”²²

In 1993, shortly after the establishment of OEJ, former EPA administrator Browner convened the National Environmental Justice Advisory Council (NEJAC). Initially composed of 25 members, including scholars and community-based organizers, NEJAC was established to advise EPA based on the expertise of a broad spectrum of stakeholders, including people representing Indigenous issues.²³

A year later, former President Clinton issued Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This mandate directed federal agencies to identify and address disproportionate health and environmental burdens on communities of color and low-income communities, develop a federal strategy for promoting EJ, and promote nondiscrimination in federal programs that concern public and environmental health.²⁴ Executive Order 12898 also included a provision that called on the Department of Interior to consult with Tribal leaders to develop plans for implementing policies specific to federally recognized Tribes.²⁵

Further, the Executive Order established an Interagency Working Group on Environmental Justice (EJ IWG), which included leaders of several federal agencies and White House offices. The EJ IWG undertook several initiatives aimed at Indigenous peoples, including projects on community capacity-building, federal-Tribal-state summits, and contamination from military projects, as set forth in the 2000 Integrated Federal Interagency Environmental Justice Action Agenda.²⁶

THE RISE OF SCREENING TOOLS

Executive Order 12898 also included a directive to “collect, maintain and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin or income.” As we will show, the tools that agencies have developed in response to this directive largely do not cover several critical aspects of EJ for many Indigenous peoples, including considerations relevant to self-determination in terms of self-governance, legal authority, and land tenure.

The tools developed in accordance with Executive Order 12898 represented EPA's first endeavors into public-facing and national scale EJ screening. The Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT) was developed by EPA's Office of Enforcement and Compliance Assurance (OECA) to identify areas in the United States that are burdened with disproportionately high environmental and public health hazards.

The tool was designed to highlight areas with potential EJ concerns so that the OECA could target inspections and resource deployment decisions.²⁷ In 2007 and 2010, the NEJAC reviewed EJSEAT and flagged several challenges with the tool, including an overrepresentation of airborne pollutants in environmental indicators and ambiguous representation of Tribal communities and migrant workers in census data, among other issues.²⁸

The NEJAC also noted that EJSEAT omitted several major environmental indicators that would be critical for measuring EJ, particularly those relating to hazardous facilities and unwanted land use activities.²⁹ EJSEAT was eventually replaced by EJVIEW, another web-based mapping tool developed by EPA that allowed users to overlay environmental and demographic data on a selected geographic area.³⁰

In 2010, EPA began developing EJSCREEN, its next iteration of a nationally consistent and public-facing screening tool. The agency gathered information from stakeholder and expert presentations at EPA-hosted workshops and conferences and a wide-range of sources.³¹^,³² After peer review, the tool's data and interface were updated, and EJSCREEN was made publicly available in 2015. Updated versions of the tool were released once a year from 2016 to 2020, and there are updates as recent as 2022.

The tool was designed to help government agencies and the general public better understand the environmental and demographic attributes of communities in the United States that have been affected by environmental injustice.³³ EJSCREEN was not intended to serve as the basis for federal agency decision making or to label any place as an “EJ Community.” Rather, EPA designed EJSCREEN to highlight certain areas as candidates for further investigation and should be supplemented with additional research and local considerations.³⁴

EJSCREEN combines demographic and environmental data into “Environmental Justice Indexes” representing aspects of a community's social and environmental vulnerability. It creates both maps and tables that depict environmental indicators, demographic indicators, and EJ Indexes for every Census block group. Each EJ Index is calculated by combining an environmental indicator with a demographic index and the population count for the selected block group.

The demographic index is the average of two indicators, low-income and people of color, for a given block group. This is then combined with a single environmental indicator, selected by the user, and the total population for the block group. In theory, EJSCREEN should be able to effectively communicate where environmental injustices occur and help prioritize federal investments.

INDIGENOUS PEOPLE AND EJSCREEN

In practice, EJSCREEN has major gaps in data and methodologies regarding Indigenous peoples. The following sections, although not exhaustive, represent Indigenous issues relating to EJScreen and possibly other tools too.

Mining

Mining has been a major environmental health issue for Indigenous peoples, but it is not represented in the indicators used in EJSCREEN. Hardrock mining, which can include extraction of copper, lead, iron ore, silver, gold, uranium, and other minerals, generates substantial amounts of solid and chemical waste that pose significant threats to human and environmental health.³⁵^,³⁶ The U.S. Government Accountability Office estimates that there are at least 140,000 abandoned hard rock mines in the United States, but over 390,000 may not have been captured yet in federal databases.³⁷

Many of these abandoned mines lie on or near Tribal lands, and thus directly contaminate Tribal lands and watersheds.³⁸ A 2017 study by Lewis et al.³⁶ estimated that at least 600,000 Native Americans live within 10 km of an abandoned mine. Consequently, many Tribal communities are exposed to high concentrations of toxic metals, including, but not limited to, arsenic, cadmium, mercury, and lead. Exposure to these metals has been linked to increased risks for various negative health outcomes.^33,³⁹

The presence of uranium mines, both current and legacy, on Navajo Nation lands represents a key example of this issue. Uranium mining on Navajo Nation lands began in the early-to-mid twentieth century, when uranium was discovered first in Cove, Arizona, and then elsewhere on the Navajo reservation.⁴⁰ Mining companies recruited Navajo people to work in uranium mines and were not informed of the occupational risks associated with uranium mining.^23,⁴¹

As a result, Navajo miners were exposed to high levels of radon without proper ventilation, protective equipment, or worker safety training.^23,24 It is now estimated that between 500 and 600 Navajo uranium miners who worked between 1950 and 1960 died of lung cancer associated with radon exposure, and that 67% of lung cancer cases among Navajo men between 1969 and 1993 can be connected to uranium mines.^23,⁴² This phenomenon represents a rare example of exposure in a single occupational setting, accounting for the majority of lung cancer cases for an entire population.²⁵ The absence of mining in EJSCREEN leaves out EJ concerns of critical importance.

Energy extraction

Energy extraction, in general, is a key aspect of Indigenous EJ that remains to be addressed in EJSCREEN and other tools. Indeed, energy extraction and development is one of the most well-documented Indigenous EJ issues, with examples of such injustices spanning centuries and affecting Indigenous peoples across the United States.⁴³^,⁴⁴^,⁴⁵^,⁴⁶ These issues include, but are not limited to, pipelines, oil and natural gas drilling, nuclear waste storage, coal development, and dams.

Some of these issues are connected to military activity on Indigenous lands, which can expose Tribal populations to noxious materials found in unexploded ordnance (i.e., mines, nerve gasses, toxics, and explosive shells).⁴⁷ The exploitation and violation of Indigenous lands and peoples by extractive industries are situated within a history of U.S. colonialism that has eroded Indigenous self-determination.²⁹ Regarding energy extraction, the United States has often treated Indigenous people in ways that are non-consensual, exploitative, and violent.

In particular, the case of the Dakota Access Pipeline (DAPL) points to the significance of energy projects on and near Indigenous lands with respect to EJ. Constructed near the Standing Rock Sioux Reservation, the DAPL traverses culturally important land and waters, including Oceti Sakowin ancestral burial sites.²⁹ The pipeline was completed in 2017 despite legal contestation from the Tribe, protests of historic proportions, and significant international media coverage.⁴⁸

Its construction inflicted cultural and ecological violence, including destruction of at least 380 culturally significant archeological sites, disturbance of a river crossing with deep historical and cultural significance, threats to the reservation's drinking water, and repeated pipeline leaks.⁴⁹^,⁵⁰

Although the DAPL is a prevalent example of the energy infrastructure issues that harm Tribal communities, it is far from the only instance; harmful energy extraction on Tribal lands can also take the form of nuclear waste siting, oil and natural gas drilling, and dam construction, among other issues. It is a major omission, then, for this subject to be excluded from the list of environmental indicators included in EJSCREEN.

Cultural landscapes

Landscape degradation is another Indigenous EJ issue absent from the environmental indicators used in EJSCREEN. For many Indigenous people, perceptions of land and resources can be represented as cultural landscapes: “Any place in which a relationship, past or present, exists between a spatial area, resource, and an associated group of indigenous people whose cultural practices, beliefs, or identity connects them to that place.

A tribal cultural landscape is determined by and known to a culturally related group of indigenous people with relationships to that place.”⁵¹ The concept of Indigenous cultural landscapes has also been recognized and used by various federal agencies, including the Bureau of Ocean Energy Management and the National Oceanic and Atmospheric Administration.⁵² The cultural landscape concept connects historical, archaeological, and traditional ecological knowledge to construct holistic indicators of places and resources that are significant to Indigenous peoples.

The cultural landscape considers cultural heritage as an integral part of an ecosystem, along with the human and non-human relationships existing within a place. This conception is especially useful in quantifying impacts to Tribal lands without relying solely on indicators of resource impacts that are grounded in non-Indigenous cultural and economic assumptions.

An example of a cultural landscape is the Mission Mountains landscape, located on the Confederated Salish and Kootenai Tribes' (CSKT) Flathead Indian Reservation. In a 2011 study, interviews were conducted with Tribal members and nontribal reservation residents on meanings attached to the cultural landscape of the Mission Mountain Tribal Wilderness. Among the themes that stood out were protecting nature and culture; functional, emotional, and symbolic attachments; wildlife and watershed protection; and access, beauty, privacy, and recreation.⁵³

Tribal members on the Flathead Reservation described the landscape's importance for spirituality, emotional values tied to animals and plants, and connection with ancestors. The practice of defining a cultural landscape for a particular Tribe, in this case the CSKT, proved useful in creating a better understanding of Tribal attitudes toward and perceptions of a particular place, which then guided land management decisions.³⁹ Cultural landscapes may be within or outside Indigenous boundaries recognized by the United States or states. They are associated with major EJ issues, such as the impact of the construction of the 30-m telescope on Mauna Kea that Native Hawaiians have resisted.

It remains to be investigated whether screening tools can include cultural landscapes in relation to EJ. If they did, scholars and policymakers could gain a more holistic and comprehensive understanding of the various environmental burdens facing Indigenous peoples.

Meaningful spatial boundaries

Compounding these data gaps on Indigenous EJ is the complex issue of spatial representation of Indigenous communities. EJSCREEN has historically relied on a “Tribal Lands” layer that includes American Indian Tribal lands in the lower 48 states and Alaska, including Federally recognized Reservations, Off-Reservation Trust Lands, and Census Oklahoma Tribal Statistical Areas.⁵⁴ However, EPA notes that the agency does not make any claims about the accuracy or precision of these data.

These areas represent lands that are culturally and historically significant for many Tribes, but they do not represent the totality of Indigenous lands across the United States. There are Indigenous peoples who the United States does not recognize. Some are recognized by states. These Indigenous peoples have long been excluded from EJSCREEN analyses, in the sense that they are not represented by the “Tribal Lands” layer.

Further, many lands across the U.S. hold historical and cultural significance to Indigenous peoples, regardless of whether or not large populations permanently live on that land or whether those areas of land fall within boundaries that the broader public is aware of. Such lands include many territories ceded by treaty, which may have treaty rights associated with their governance. For example, the Bois Forte Band of Chippewa and the Grand Portage Band of Lake Superior Chippewa formally ceded land to the U.S. through a series of treaties in the mid-1800s.⁵⁵

However, these treaties also delineated certain usufruct rights, in which the Tribes' rights to hunt, fish, and gather on these ceded lands were affirmed. Today, these rights, though contested, are still held by the two bands, allowing the Tribes to exercise certain off-reservation harvesting rights.^43,⁵⁶

In EJSCREEN, ceded territories were not initially included in the “Tribal Lands” layer, which had long prevented analysis of EJ impacts to these important lands. However, as of Summer 2022, EJSCREEN underwent an update that provided additional datasets on Tribal lands, including Alaska Native Regional Corporations, state-recognized reservations, Hawaiian Native Home Lands, State-designated Tribal Statistical Areas, Virginia Federally Recognized Tribes, Alaska Native Villages and Allotments, and Tribal cession boundaries.

By making use of a much wider range of data to better capture the diverse nature of Indigenous lands, this iteration of EJSCREEN is better equipped to represent Indigenous EJ. This development is significant for CEJST, for it provides an updated and more comprehensive approach to identifying Indigenous lands in federal EJ screening tools.

Many Indigenous people are engaging in conservation, climate change adaptation, and cultural restoration projects in areas of land outside of boundaries that are recognized by federal or state governments as Indigenous jurisdictions. Diverse state and federal lands, and in some cases private property, are places where Indigenous people seek to collaborate with others on environmental stewardship. Some Indigenous people are seeking to exercise regional leadership in guiding environmental initiatives that go well beyond jurisdictions such as reservations or rancherias. Screening tools should not be used in ways that would ever rule out the existence of such Indigenous projects.

Qualitative and narrative data

One fundamental issue with EJSCREEN in relation to Indigenous EJ is its lack of qualitative data. EJSCREEN relies on non-Indigenous measures of science, health, and the environment that inadequately reflect the distinctive cultural and political characteristics of Indigenous populations.⁵⁷ Because Indigenous definitions of health and well-being often include cultural, spiritual, communal, and land-based aspects, they can be difficult to characterize in quantitative terms alone.⁵⁸^,⁵⁹ Instead, Western scientific measures of health (e.g., prevalence of certain health conditions, life expectancy, etc.) should be supplemented by Indigenous narratives and concepts, which can provide Indigenous-specific and culturally relevant accounts of social outcomes related to certain environmental burdens.

Substantial scholarly evidence supports using Tribal narratives to inform decision making at the federal level, and EJAtlas illustrates the precedent for using such narratives in mapping applications.⁶⁰^,⁶¹ Around the same time that EJSCREEN was being developed, EJAtlas was launched by the EJ Organization, Liabilities, and Trade project. EJAtlas is another web-based mapping tool that catalogs socio-environmental conflicts.⁶² EJAtlas is distinct from EJSCREEN in several ways.

First, EJAtlas relies on crowdsourced data from NGOs, activists, academics, and citizens who document grassroots EJ struggles. It is also intended to be used as an educational and advocacy resource, and it was not specifically designed to be used by policymakers or to influence federal investments. EJAtlas also operates on a global scale and covers a wider swath of EJ categories, including nuclear energy, mineral ore extraction, tourism impacts, and biomass conflicts, among others. Although EJAtlas is not a screening tool, it provides a powerful example of ways that narrative data could be incorporated into tools such as the CEJST.⁵⁴

Engaging with indigenous peoples

Another fundamental issue with EJSCREEN's limited inclusion of Indigenous EJ is the lack of engagement with Indigenous peoples that occurred during the tool's development process. The creation of screening tools such as EJSCREEN and the CEJST are often inherently exclusionary and technocratic processes that rely on the technical expertise of scholars, policymakers, and researchers.

As such, the resulting tools can easily become biased unless they intentionally incorporate the perspectives of those whom screening tools are ultimately meant to help. EJSCREEN was developed primarily by federal agency officials, and thus it lacks much of the lived experience, land-based, and embodied knowledges of communities directly affected by environmental injustice. As a result, the data and methods used in EJSCREEN are not fully representative of community experiences of EJ, including those of diverse Indigenous peoples. To remedy this, the CEJST should be developed through genuine consultation and meaningful involvement of Indigenous people.

Indigenous Communities and the CEJST

Each gap in EJSCREEN presents an important opportunity for the forthcoming CEJST to more adequately involve and represent Tribes. The tool, released in beta form in February 2022, provides socioeconomic, environmental, and climate data intended to inform federal decisions about which communities should receive benefits from the Justice40 initiative. CEJST operates at the census tract level, identifying a community as “disadvantaged” if the tract exceeds thresholds for the socioeconomic indicators and one or more climate or environmental indicators.

However, because CEJST relies only on census tracts to represent communities, it may fail to capture the full extent of Indigenous self-governance, legal authority, and land tenure. The tool also does not consider race and ethnicity data in its list of socioeconomic indicators, which may further inhibit its ability to represent Indigenous concerns.⁶³ Its environmental and climate indicators fall within eight categories: climate change, clean energy and energy efficiency, clean transit, affordable and sustainable housing, reduction and remediation of legacy pollution, critical clean water and wastewater infrastructure, health burdens, and training and workforce development. Though CEJST presents a broader range of datasets than EJSCREEN and covers increasingly relevant topics on climate change and energy, fully including Indigenous concerns in the tool requires more work to be done. Given the unique aspects of Indigenous EJ historically missing from EJSCREEN and other tools, we provide three major recommendations for the CEJST.

(1)

Indigenous peoples should be engaged at every level of the development and implementation of screening tools, in ways that affirm Indigenous self-determination and the principle of free, prior, and informed consent (FPIC). There is a wealth of scholarly, political, and legal documentation regarding best practices for consultation with Indigenous peoples and Indigenous data sovereignty that are applicable to the development of the CEJST.⁶⁴^,⁶⁵^,⁶⁶ Council on Environmental Quality (CEQ) should draw from principles of FPIC as outlined in the United Nations Declaration on the Rights of Indigenous Peoples, as well as the work of Carroll et al. on collective benefit, authority to control, responsibility, and ethics principles for Indigenous data governance.⁶⁷^,⁶⁸ Beyond consultation, the CEQ should work toward forming deliberate and respectable partnerships with Indigenous peoples and upholding principles of self-determination and FPIC. Such partnerships can be leveraged to ensure that CEJST is actually a tool that some Indigenous peoples could actually use and benefit from. CEQ did hold Tribal consultation meetings in April 2022, though the summary of those consultative activities has not been published as of July 2022. We do not know whether CEQ has engaged more broadly with Indigenous people beyond federally recognized Tribes.

(2)

The CEJST should include environmental, climate, and socioeconomic indicators that represent the EJ issues that specifically affect Indigenous peoples. As previously discussed, Indigenous EJ has unique social, political, historical, and cultural dimensions that differentiate it from the EJ issues affecting other communities. As such, the inclusion of Indigenous EJ in the CEJST necessarily merits different indicators and datasets. These indicators should include data on various forms of energy development and transmission, holistic cultural landscapes, and Indigenous narratives and data. With respect to mining and energy development, several relevant datasets developed by federal agencies could be incorporated into the screening tool. These include U.S. Geological Survey data on historic asbestos mines, region-specific mines and mining districts, and active mines and mineral processing plants and U.S. Energy Information Administration data on coal fields, crude oil pipelines, ethanol plants, natural gas processing plants, hydrocarbon gas liquid pipelines, and many other forms of energy infrastructure.⁶⁹^,⁷⁰^,⁷¹^,⁷² Further, the U.S. Department of Defense maintains spatial data on military installations that are potentially relevant to the issues raised by many Indigenous peoples regarding hazardous waste associated with military activity.⁷³

For holistic measures of impacts on Tribal cultural landscapes, though there is not yet a widely used dataset, Harris and Harper suggest a variety of ways to quantify such impacts. Such methods include cultural Habitat Equivalency Analysis, constructed scales (for example, number of lost visits to historical sites/culturally important spaces), and eco-cultural dependency webs that identify users, uses, linkages, and secondary impacts related to resource impacts.⁷⁴ These might also include culturally important species, as well as nutritional and medicinal services. Data on these aspects of cultural landscapes, often maintained by Tribes themselves, can contain critical information on impacts to food webs, sacred sites, and holistic measures of Tribal health.⁷⁵^,⁷⁶

Further, there are many ways that Indigenous narratives and data could be used to improve the screening tool. This qualitative information could include, for example, descriptions of impacts on traditional lifeways, culturally important species, access to traditional resources, and traditional languages. This could also include governance data, such as degree of compliance with treaty rights or trust obligations that affect Indigenous EJ.⁷⁷ Tribal governments and Indigenous organizations may have collected their own data and information with significance to different localities, and they may have done so using a range of data collection methods. The CEQ should engage with Indigenous communities through protocols of FPIC to include Indigenous peoples' own narratives and data within the scope of the CEJST. Indigenous narratives and data would only be used with Indigenous consent. There should also be an investigation of reports and studies—intended for wide dissemination—that Indigenous people have already undertaken to furnish data or information publicly or for governmental and legal purposes. At the same time, some Indigenous people may have concerns about the publication of certain types of data or information given different sensitivities that relate to legal proceedings, the restoration of property, and the protection of Indigenous lands, land-based practices, and land tenure. Certain types of data, even if public data, can be risky if they are highlighted by a tool such as CEJST—another reason why consultation, consent, and the involvement of Indigenous peoples must be meaningful.

(3)

The CEJST should use spatial boundaries that are meaningful to Indigenous communities. In general, the use of current geographic boundaries does not always accurately reflect Indigenous land tenure. Because Indigenous peoples have occupied American lands since well before present-day jurisdictional boundaries were imposed, many geographic boundaries now used in nationally consistent and publicly available datasets (census tracts, for example) do not adequately represent the complexity and totality of land significant to Indigenous people. However, since the first iteration of EJSCREEN, there have been developments in quantifying the spatial extent of Tribal lands in the United States, including the Census Bureau's 2018 “American Indian/Alaska Native/Native Hawaiian (AIANNH) Area National Shapefile,” and Farrell et al.'s comprehensive dataset on Indigenous land dispossession and forced migration.⁷⁸^,⁷⁹ EJSCREEN 2.0's recent update to Tribal spatial data also includes information on Tribal cession boundaries and various types of state-recognized Tribal lands. Incorporating this data in CEJST would facilitate the inclusion of the largest and most populous state-recognized American Indian areas, as well as off-reservation lands, Alaskan villages, and Hawaiian Home Lands.⁸⁰^,⁸¹ These publicly available data sets on boundaries can be used as one guide about when it is important to trigger consultation or meaningful involvement with specific Indigenous people. However, they should not be taken as fully inclusive of all lands significant to Indigenous peoples. Nor should the diversity of different Indigenous practices of land tenure and environmental stewardship be excluded from the realm of possibility just because they cannot be currently represented in CEJST.

CONCLUSION

The Biden-Harris administration is well-positioned to deliver substantial EJ benefits to Tribes through Justice40. Executive Order 14008 specifically calls for the development of a CEJST, based on EPA's EJSCREEN, to help identify underserved communities toward which to target such climate and energy investments. Such screening tools and the GIS methodologies that underlie them can significantly improve the way policymakers, researchers, and the general public understand spatial relationships.

The topic of Indigenous EJ is no exception, and screening tools are especially useful for understanding the connections between climate, health, and socioeconomic characteristics.⁸² Screening tools have the potential to advance EJ by providing policymakers with clear, accessible evidence of communities disproportionately burdened by environmental and public health hazards.

However, in order for the CEJST to deliver meaningful EJ benefits to Indigenous people, the data and methodological gaps in EJSCREEN must not be repeated. Where there are updates to EJSCREEN that make key progress, CEJST should be duly updated. The new screening tool should engage with Indigenous people at every phase of development and implementation, incorporate environmental and socioeconomic indicators that reflect Indigenous EJ, and use spatial boundaries meaningful to Indigenous people. These lessons learned from EJSCREEN present significant potential for the CEJST to meaningfully incorporate Indigenous EJ and deliver tangible and relevant benefits.