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Environment Risk, Fish Consumption, and American Indians: Exploring the Logic of Genocide

I am interested in the legal and scientific logic that allows the United States to continually expose Native American tribal groups to greater environmental risk.
Darren Ranco

Issue #55, May 2001

It has been fifteen years since Ulrich Beck first published his book, Risikogesellschaft (Risk Society), and almost ten years since it first appeared in English on Sage Press in 1992. His thesis is critical for us to understand who and what it is that 'modernity' seeks to define as garbage. To Beck, a 'new modernity' has replaced the one defined by the industrial society of the 19th and early 20th centuries, where the axial principle was the distribution of 'goods' and the means of their production. In the new 'risk society,' Beck sees the distribution of 'bads' as the critical axiom — those who have to confront the hazardous wastes of modernity are an often harder to pin-down underclass, wherein the distribution of bads flows easily across national boundaries, often undetected by the latest environmental laws and technologies.

Beck's analysis stops short of examining exactly who must confront these 'bads' as driven by the inherent racist logic of liberal democratic nation-states, as an environmental justice advocate might. Instead, Beck focuses on the 'politics of knowledge' — how it is that the modern market has elided itself with the production of scientific knowledge, which in turn fuels the expertise of the modern nation-state. His focus on knowledge, however, does lend one to re-conceive the older class struggle in terms of risk — those who have the political access, knowledge, and education remain of out of harms way, while those who do not have access to such resources are subject to the often deadly effects of these 'bads.'

As a scholar, the projects I am involved with focus on the ways in which the United States manages the risks Beck refers to in his philosophical tracts to disproportionately harm already 'at-risk' groups of people. This is a blatant fact that is only subtly revealed in Beck's analysis — that nation-states treat certain citizens like garbage.

Fish Consumption Rates, Dioxin, and the Courts

While many fashionable issues in environmental justice scholarship reveal the reality that people of color are overlooked in the enforcement of environmental laws in the United States, I am going to focus in this article on fish consumption issues amongst Native American tribal groups. Specifically, I am interested in the legal and scientific logic that allows the United States to continually expose this particular group to greater environmental risk

great american cleanup In the course of my own anthropological fieldwork with the Penobscot Indian Nation (Nation) in Maine and the Environmental Protection Agency (EPA) in Boston, I examined how one Indian Nation was able to partially challenge the standard methods used by EPA in managing environmental risks to what EPA calls “exposed sub-populations.” In a partial victory, which resulted in the strictest permit (at the time, in 1997) regulating the discharge of dioxin into a waterway, the Nation appealed the final draft of the permit because it did not protect traditional tribal members who use tribal resources for year-round subsistence.

A critical point in the case was the amount of 'contaminated' fish consumed by tribal members. EPA currently assumes a fish consumption rate of 6.5 grams/day. This amounts to approximately one fish meal per month. In 1991, two years after signs were posted along the river informing people not to eat the fish because they were full of PCBs and dioxin (and a year after the cancer rate for tribal members was found to be three times the state average), the Penobscot Indian Nation conducted its own survey of tribal fish consumption. The survey results, suppressed by these warnings along the river, were still beyond the nation average — the average rate of consumption was 11 grams/day for tribal members, but with many traditional people (many of whom did not respond to the survey) consuming over 150 grams/day.

The 'official' 6.5 grams/day value is derived from a diet recall study conducted in the mid-1970s of the general population of the United States, fish consumers and non-consumers alike. The history and bias of this standard and EPA’s use of it has been detailed by many scholars concerned with the accuracy of this approach in fish consumption—clearly, it leaves many people who eat more fish exposed to dangerous of amounts of pollution. Critically, this scholarship points to the fact that EPA derived this number by including non consumers of fish into the average as well as excluding marine species, bringing the arithmetic mean consumption rate down from 14.3 grams a day to 6.5 grams a day.


In regulating toxic substances, like dioxin in the Penobscot case, EPA expresses risk in the amount of cancer deaths caused by the exposure to that substance. Clearly, death caused by cancer from a particular substance is not the only health risk for exposure to these substances, but these are the only risks mandated by law that the Agency can take into consideration in regulating these substances. A major variable in determining this risk is the amount of a particular substance one is exposed to. Thus, EPA uses national statistics on consumption rates and access to resources to determine the amount of exposure to a substance and in turn try to protect this average citizen to one additional cancer in one million. In the Penobscot case, EPA did more (and in many, ways) less than this.

The Penobscot survey, conducted during the first few years of the fish consumption warnings on the Penobscot River, revealed a fish consumption rate of 11 grams/day for the average tribal member. Tribal bureaucrats strongly urged the Agency to see that this rate, depressed by warnings along the river, did not reflect the traditional members most exposed to dioxin, who either do not respond to surveys, or were not around while the survey was conducted. Despite these objections, EPA could now set a standard based on the ‘average’ Penobscot fish consumer, and did exactly that. In the final permit, the amount of dioxin discharged allows an additional cancer of one in a million in eating 11g/day, slightly more than one additional cancer in 100,000 at 144 g/day and almost three additional cancers in 100,000 at 336 g/day.

Legal scholar Catherine O’Neill has documented how tribes in the Puget Sound and Columbia River Basin have started to undertake studies of fish consumption rates that comply with the standards set by agencies and courts’ direct response to the precedents set in these cases saying that the ‘anecdotal’ evidence can be ignored in regulatory decisions. In some ways, the only reason that the Penobscots were able to get EPA to take into account the flawed 11g/day rate is because it was part of a formal study. In each of these situations the battle to get Native American sub-populations protected is both legal and scientific. Often, the legal and scientific struggles are strangely intertwined, and can reveal a logic of genocide, wherein Native American populations must choose between practicing their cultures and accessing their natural resources, which expose them to dangerous amounts of environmental pollution, or giving up on ways of life they have practiced for thousands of years.

great american cleanup O’Neill has shown the ways in which environmental case law allows for, perhaps even engenders in the way that it assesses science, the over-exposure of toxins to subpopulations, especially tribal peoples, in the United States. Beginning with the 1993 DC Circuit case Ohio v. EPA (Ohio) and extending through the 1993 Fourth Circuit case of Natural Resource Defense Council v. EPA (NRDC) and the 1995 Ninth Circuit case of Dioxin/Organocholride Center v. Clarke (Dioxin), the EPA and reviewing courts created a legal way to expose subpopulations, especially Native American ones, to an inordinate amount of toxic, environmental risk. In the Ohio case, the DC Circuit basically allowed courts to review and interpret ambiguously worded regulations such as ‘safe,’ thereby removing much of the administrative control over environmental regulation out of EPA’s hands.

As O’Neill convincingly shows, the NRDC and Dioxin cases, which each involve the exposure of toxins to Native American populations, make this review of ambiguity very dangerous to sub-populations. In the NRDC case, the EPA and the Fourth Circuit agreed that the ingestion rates of Mattaponi and Pamunkey tribal members should be rejected because they were based on “anecdotal information” and that agencies are free to ignore such “speculative” oral testimony. In the Dioxin case, where EPA actually did some formal study of 15,000 Native Americans in the Columbia River basin, they estimated that their rate of consumption was roughly 150 grams/day. However, as opposed to making sure that their consumption rate be protected to the one additional deaths to cancer in a million that normally follows in the Clean Water Act, the court found that this rate, which makes for 23 additional cancer deaths in a million, to be “lower yet adequate.” In an absurd turn, the Ninth Circuit, as O’Neill points out, accepted EPA’s argument that only some of the fish eaten by Native Americans was fully contaminated, whereas all of the average consumer’s fish should be considered as fully contaminated.

As we can see from O’Neill’s work and the Penobscot example, the ultimate problem that Tribes face is to get the EPA to recognize and enforce local, ‘different’ standards that will assure tribal cultural survival. Through a series of court cases, EPA not only has insulated its decisions, but has also argued that it is ‘acceptable’ to expose certain populations to a greater amount of risk. In the Penobscot situation, EPA actually tried to allow tribal fisherman the same amount of risk as the average citizen, although the data were fundamentally flawed. The hurdle that must be overcome, therefore, is monumental—how would the Tribe have persuaded an agency like EPA to protect tribal health and resources in a way that would meet tribal perspectives on risk—or, more importantly, is this something that the United States or other nation-states are able to enforce?

Many of the detractors to quantitative risk assessments have pointed out the judgment calls involved in the process that expose sub-populations like the Penobscot Indian Nation to greater risks. These detractors call for a rethinking of this kind of ‘hidden’ expertise, what I and others refer to as the “managerial discourse,” which frames the ability to use its expertise to protect its citizens. The responses to this managerial impulse most often use a pluralist discourse in order to argue for social regulation. But it is not clear that pluralist ‘solutions’ would necessarily help the Penobscot Nation in the case at hand, or Native peoples who have experienced unique forms of oppression through various forms of colonization and forced assimilation. As we have seen, the government’s control exists as much in controlling the process as it does in the scientific findings. A pluralistic response to such situations would merely force agencies like the EPA to work towards a political middle ground, one with which the Penobscot Nation could not agree. Therefore, it should be clear that procedural justice is not acceptable when different knowledge bases and historical experiences are involved.

What we are faced with is a fundamental problem of difference in the bureaucratic apparatus of the modern nation-state. Even a radical pluralism, the urge to include all perspectives in the state apparatus, is insufficient to protect another culture in this case, as it is in many others.


Whether we conceptualize that the state treats some of it citizens like garbage or just happens to expose them to an overabundance of society’s waste, one thing remains clear—the state heaps more risk on those already at-risk with its normative administrative law. I started this article talking about Beck and his theory about the distribution of risk in late modernity. This theory does not acknowledge the racist logic I point to in this article. What is clear from Beck and my recitation, however, is that control over knowledge permeates the control over risk. In the cases I point to, accessing official forms of knowledge is hard for ‘atypical’ groups, and the state does not feel bad about it, at all. And, even if you can access this knowledge, and produce your own peer-reviewed fish consumption study, the state is perfectly willing to say it is alright for certain groups to have more risk. More risk? What we are talking about here is the state saying who can die and who can live—whose life is worth protecting. The terror of the majority lives on in the normative administrative law that sanctions the normative scientific discourses of the state. Sure, the sanctifying song is one that uses concepts like ‘reasonable’ exposure and ‘adequate’ protection, but the tune is all too familiar to the communities that lose out.

Dr. Darren Ranco, a member of the Penobscot Indian Nation, is Assistant Professor of Native American Studies at the University of California, Berkeley. His research focuses on how Indian Nations are combatting the effects of pollution and environmental regulation of their lands, resources, and cultures.

Copyright © 2001 by Darren Ranco. All rights reserved.