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Fighting to Protect Miccosukee Tribal Rights in the Everglades, Florida, US


Description:

Since the 1800s, the Miccosukee Tribe has lived in the Florida Everglades - first seeking refuge from colonizing forces, but in the process, forming a deep connection with the land and water of the area [1]. Today, the cultural traditions of the tribe remain connected to the health of the Everglades ecosystem. However, Miccosukee lands now face pollution from agriculture, urban development, and industrialism, with specific concerns about water pollution [1; 2]. The Miccosukee people continue to fight forces that seek to threaten their cultural practices, through protest but also judicial activism to battle lax water quality standards. Throughout the last three decades, the Miccosukee Tribe has fought for environmental justice by preventing co-optation of their land and water rights and protesting the maldistribution of polluted water into their community.

There are two main areas of concern, the land in the Miccosukee Tribe’s Federal Indian Reservation (lands held in trust by the federal government), and lands provided to the Tribe under a perpetual lease from the State of Florida, also known as Water Conservation Area 3A (WCA-3A). When the Miccosukee Tribe was recognized by the federal government decades ago, they were given a total of 90,000 acres of land [3]. The WCA-3A lands were leased to the Tribe in perpetuity in 1982 with the goal to preserve the local ecosystem to protect the Tribe’s cultural rights [1]. Although this land is not an Indian Reservation, the agreement states that the area is leased to the tribe as if it were an Indian Reservation [1]. Put together, the tribe has control of over 270,818 acres [1]. 

Much of Miccosukee Tribal land is located in the Everglades – a large network of ecosystems where the natural flow of water has now been disrupted. Instead of one flowing ecosystem, the Everglades is now more of a network of compartmentalized reservoirs and canals – the result of large scale engineering projects. The Miccosukee Tribe relies on the integrity of the Everglades ecosystem to support their religion, culture and economic prosperity.  

In the early 2000s, the South Florida Water Management District began back-pumping polluted water into the greater Everglades ecosystem. The water was pumped from an affluent housing development, urban areas and agricultural lands into tribal waters [4;8]. A prime example of environmental injustice – dumping polluted water into an area for the benefit of others, at the expense of a historically marginalized community. The polluted water began to cause eutrophication and overgrowth of cattails, forcing out native grasses and vegetation [5]. Because of the harm the water pollution is causing towards the ecosystem, the hunting and fishing rights granted to the Miccosukee Tribe is also in jeopardy. This case of water pollution is not only hurting the ecosystem, but also the cultural identity of the Miccosukee Tribe. 

In the Clean Water Act - legislation designed to protect the waters of the United States [9] - federally recognized tribes have “treatment as states” status. This allows the Miccosukee Tribe to set its own water quality standards for tribal waters, which must be adhered to by both members and non-members of the tribe. The South Florida Water Management District’s decision to back-pump water into Miccosukee Tribal waters not only violates their water quality standards, but also ignores their authority. Additionally, the Clean Water Act requires that a National Pollution Discharge Elimination System (NPDES) permit be required before any pollutants from a point source can be discharged into navigable waters [2][5]. The Miccosukee Tribe sued the South Florida Water Management District, stating that an NPDES permit should be required. Through this judicial activism, the Miccosukee Tribe were able to prevent additional water pollution. In 2004, the Supreme Court ruled in favor of the Miccosukee Tribe, stating that the water management district needed to acquire a NPDES permit [2].

More than a decade later, in 2020, the Miccosukee Tribe faces another challenge to their tribal rights to a clean, Everglades ecosystem. The tribe has an agreement with the federal government, and did not ever consent to state control of wetlands. However, the control of wetlands development was changed from the federal government to the state of Florida when the U.S. Environmental Protection Agency Administrator Andrew Wheeler gave the Florida Department of Environmental Protection control of Section 404 of the Clean Water Act [3]. This action was part of a larger effort by the Trump administration to weaken environmental protections before Joe Biden’s administration came into office. As a result, the Florida Department of Environmental Protection is in charge of dredge and fill permits for the Everglades, a change made without any consultation with the Miccosukee Tribe, who have “treatment as state” status in the Clean Water Act.

 

In response, the Miccosukee Tribe released a statement: “The tribe is deeply appalled about the loss of culturally sensitive sites and the potential destruction of the Miccosukee way of life. This way of life is integrally entwined within the Florida Everglades” [3]. Betty Osceola, a Miccosukee activist, clarified that the “tribes have codified rights to these lands” [6]. The Miccosukee Tribe have led several prayer walks, as well as an 80 mile march in the Everglades to raise awareness on this issue. The change in wetlands management, which ignores tribal control of water quality, has taken authority away from the Miccosukee Tribe by acting as if Indian territory only exists in reservation boundaries. This change is especially concerning because of the lack of funding in the Department of Environmental Protection in Florida, meaning permits could be processed and approved without proper scrutiny.

 

2021 brought yet another threat to the Miccosukee Tribe’s tribal rights to a healthy ecosystem when an oil company applied for a permit to drill in Big Cypress National Preserve, where the Miccosukee Tribe has rights to some of the land within the boundaries of the preserve. The Texas based Burnett Oil Co. filed for permits to begin drilling in the preserve in 2022 [7]. If the drilling is allowed to occur, it will not only threaten endangered wildlife, but an ancestral burying ground for the Miccosukee. The Miccosukee Tribe is worried about history, water quality, wildlife and the area’s ecosystem. The Florida Department of Environmental Protection, with its limited funding and staffing, is currently reviewing Burnett Oil’s application.

Basic Data

Name of conflict:Fighting to Protect Miccosukee Tribal Rights in the Everglades, Florida, US
Country:United States of America
State or province:Florida
Location of conflict:Everglades
Accuracy of locationMEDIUM (Regional level)

Source of Conflict

Type of conflict. 1st level:Water Management
Type of conflict. 2nd level:Water access rights and entitlements
Oil and gas exploration and extraction
Wetlands and coastal zone management
Interbasin water transfers/transboundary water conflicts
Specific commodities:Biological resources
Domestic municipal waste
Water

Project Details and Actors

Project details

•Miccosukee lands face pollution from agriculture, urban development, and industrialism, with specific concerns about water pollution

•In the early 2000s, the South Florida Water Management District began back-pumping polluted water into the greater Everglades ecosystem

•The Miccosukee Tribe used judicial activism to require the district to obtain a National Pollution Discharge Elimination System Permit

•In 2020, control of dredge and fill permits was moved from the federal to the state government, threatening tribal sovereignty

•In 2021, Burnett Oil Company requested a permit to drill in Big Cypress National Preserve, where the Miccosukee Tribe has tribal lands

Project area:109,596
Type of populationRural
Affected Population:>550
Start of the conflict:2004
Company names or state enterprises:Burnett Oil Company from United States of America - Potential sponsor of future oil drilling operations
Relevant government actors:•Environmental Protection Agency (EPA)
•Florida Department of Environmental Protection
•Army Corps of Engineers
•National Pollution Discharge Elimination System (NPDES)
Environmental justice organizations (and other supporters) and their websites, if available:•The Everglades Coalition: https://www.evergladescoalition.org
•Betty Osceola and allies
•The Miccosukee Tribe

Conflict & Mobilization

IntensityMEDIUM (street protests, visible mobilization)
Reaction stageIn REACTION to the implementation (during construction or operation)
Groups mobilizing:Indigenous groups or traditional communities
Local ejos
Ethnically/racially discriminated groups
Miccosukee Tribe
Forms of mobilization:Creation of alternative reports/knowledge
Development of alternative proposals
Lawsuits, court cases, judicial activism
Official complaint letters and petitions

Impacts

Environmental ImpactsVisible: Biodiversity loss (wildlife, agro-diversity), Floods (river, coastal, mudflow), Surface water pollution / Decreasing water (physico-chemical, biological) quality, Reduced ecological / hydrological connectivity
Health ImpactsPotential: Mental problems including stress, depression and suicide
Socio-economical ImpactsVisible: Displacement, Loss of livelihood, Loss of traditional knowledge/practices/cultures, Land dispossession, Loss of landscape/sense of place

Outcome

Project StatusStopped
Conflict outcome / response:Court decision (victory for environmental justice)
Strengthening of participation
Application of existing regulations
Proposal and development of alternatives:In 2017, the Miccosukee Tribe released a report detailing their plan to manage non-point source pollution in their tribal lands [1]. The report contains best management practices for the management of the ecosystem in a way that respects the cultural significance of the area, and preserves tribal rights. By producing their own report of management practices, the Miccosukee Tribe has produced and promoted knowledge that values both the natural and cultural ecosystem.
Do you consider this an environmental justice success? Was environmental justice served?:Not Sure
Briefly explain:The Miccosukee Tribe was able to require the South Florida Water Management District to acquire a NPDES permit, but the tribe continues to face threats to its wetlands from prospective oil drilling to the transfer of control of wetlands regulation from federal to state.

Sources & Materials

Juridical relevant texts related to the conflict (laws, legislations, EIAs, etc)

[9] Clean Water Act
https://www.epa.gov/laws-regulations/summary-clean-water-act

References to published books, academic articles, movies or published documentaries

[4]Prior, Charles. "Permitting Problems: Environmental Justice and the Miccosukee Indian Tribe." Envtl. & Earth LJ 3 (2013): 163.
https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1025&context=ejejj

[2]Carden, Kristin. "South florida water management district V. Miccosukee tribe of indians." Harv. Envtl. L. Rev. 28 (2004): 549.
https://harvardelr.com/wp-content/uploads/sites/12/2019/07/28.2-Carden.pdf

[5]Delaney, Casey Tippens. "Everglades, Dirty Water, and the Miccosukee Tribe: Will the Supreme Court Say Enough is Enough?." American Indian Law Review 28, no. 2 (2003): 349-371.
https://www.jstor.org/stable/pdf/20070711.pdf?refreqid=excelsior%3Abb2889548c59f879eca72b15405c8b7e

[8]Carpenter, Hayley. " Miccosukee v. United States": The Continuing Unwieldiness of Equal Protection in Environmental Justice." Ecology Law Quarterly 41, no. 2 (2014): 597-603
https://www.jstor.org/stable/pdf/44321215.pdf?refreqid=excelsior%3A5260bbb32a86e7a7add8442a2ead5b78

[1]Douglas, Julian. “Miccosukee Tribe of Indians of Florida Nonpoint Source Pollution Management Program Plan,” 2017.
https://www.lovetheeverglades.org/uploads/5/6/3/7/56377149/miccosukee_nps_management_plan_december_2017.pdf.

[6]Elsken, Katrina. “Miccosukee Tribe Representative Protests Plan to Let State of Florida Rule on Wetlands Permits.” South Central Florida Life, December 21, 2020.
https://www.southcentralfloridalife.com/stories/miccosukee-tribe-representative-protests-plan-to-let-state-of-florida-rule-on-wetlands-permits,14240

[7]Lowenstein, Jack, and Rachel Cox-Rosen. “Miccosukee Tribe Protests Big Oil Company Drilling at Big Cypress.” Wink News, April 12, 2021.
https://www.winknews.com/2021/04/12/miccosukee-tribe-protests-big-oil-company-drilling-at-big-cypress/?__cf_chl_captcha_tk__=pmd__xLRhbwEGIj6T67lwenYDuHseTn8PZYe0jJcXvuIIrI-1632907802-0-gqNtZGzNAxCjcnBszQkl

[3]Schulman, Sandra Hale. “Florida Tribes ‘Deeply Appalled’ by Wetlands Deal.” Indian Country Today, December 24, 2020.
https://indiancountrytoday.com/news/florida-tribes-deeply-appalled-by-wetlands-deal?redir=1.

Meta information

Contributor:Arielle Landau, BOLD Fellow at the EJAtlas
Last update06/10/2021

Images

 

Miccosukee Tribe Protests Potential Land Loss

The Miccosukee Tribe engages in a prayer walk to protest land loss in their homeland of the Everglades. https://www.cavsconnect.com/highlights-submissions/2020/01/30/micosukee-tribe-protests-potential-land-loss/

Defend the Sacred

Betty Osceola holds up a sign encouraging supporters of the Everglades to Defend the Sacred, protesting the recent decision to let the state of Florida take over part of the administration of the Clean Water Act. https://www.southcentralfloridalife.com/stories/defendthesacred-everglades-walk-planned-for-jan-2-3,14466

80 Mile Walk to Protect the Everglades

Miccosukee and Seminole Tribe supporters marched 80 miles to raise awareness for the protection of the Everglades, as well as native rights in the area. https://seminoletribune.org/eighty-mile-tamiami-trail-trek-conveys-everglades-awareness/