The Keystone Pipeline: Don’t Forget About Native Americans

Despite years of debate about the Keystone Pipeline, there is still much controversy about what it means for the United States. Some argue it will stimulate the economy through job creation while others argue the environmental impacts and risks are not worth the benefits. Arguably, one of the most affected groups will be Native Americans, yet their interests in the matter are being disregarded as part of a historical trend of ignoring the rights of native peoples. To thoughtfully weigh the significance of the pipeline, is important to recognize the effects the pipeline will have not only on the environment, but on those who are most vulnerable to ecological degradation and lack a strong voice to protect themselves.

On February 25, 2015, President Obama vetoed the Keystone Pipeline Approval Act[i], noting that the bill “conflicts with established executive branch procedure and cuts short thorough consideration of issues that could bear on our natural interest – including our security, safety, and environment.”[ii] In January, the Senate pushed the bill onto the President’s desk when sixty-two senators voted in favor of the project[iii] after the House of Representatives showed their support for the Keystone Pipeline with a 266 to 153 vote.[iv] Although it is unlikely the House and Senate will be able to accrue the two-thirds majority required for a veto override, the pipeline nevertheless remains as a possibility. Republicans have indicated they may attach a rider onto important upcoming bills for the approval of the pipeline. [v] Furthermore, if a Republican candidate wins the next presidential election and the GOP maintains a majority in Congress, it is highly likely the pipeline would come to fruition. It is therefore important to expand the debate beyond economic development and environmental protection to include tribal interests, which, if coupled with ecological interests, provide more ammunition against the pipeline.

The Keystone Pipeline could especially affect Native Americans because it may traverse their land and their water supply. However, it is rather unclear as to whether or not the pipeline will definitely cross native lands. According to Gary Hanson, chairman of the South Dakota Public Utilities Commission, “Keystone XL endeavored to make certain that they did not cross any trust lands or reservations lands.”[vi] However, the President of the Rosebund Sioux tribe claims the pipeline will in fact cut through Native American lands[vii] and another recent article notes that the pipeline will enter “the territories of numerous tribes from the Dene and Creek Nations to the Omaha, Ho-chunk and, Panka Tribes.”[viii] This inconsistency may be due to different conceptions of what Native American lands are, as many tribes still consider lands conveyed to them in treaties which were broken by the U.S. government to nevertheless still be within their possession.

Unquestionably, the Keystone Pipeline would cross the Ogallala aquifer, the largest aquifer in the United States, spanning from South Dakota to Texas. The aquifer provides water to 82 percent of those living within its boundaries and provides 30 percent of the groundwater used for irrigation (U.S. Geological Service).  Debra Plume, an activist from the Lakota Sioux tribe explained, “To us this oil pipeline coming in across our drinking water and surface water source, if our water line is contaminated by that oil it will be genocide for our Ogalala Lakota people”.[ix]

In November 2014, the Rosebud Sioux Tribe recognized the House of Representatives’ support of the Keystone Pipeline as an “act of war.” [x] Tribe members have set up camps along the pipeline’s proposed route as an act of civil disobedience.[xi] Tribal president Cyril Scott promised his people would put up a fight, likening the pipeline to a massacre of his people: “we want to lead a peaceful existence to be able to raise our children and practice our religions and our cultures and our way of life, but they’re preventing it with Keystone XL pipeline.”[xii] The pipeline therefore is not only a threat to Native Americans’ vitality because of the effect it has on their water supply, but also because it profoundly interferes with underlying cultural and spiritual values that those outside of tribal heritage are likely to not account for or comprehend.[xiii]

Despite the obvious interests of tribal groups in the pipeline, Keystone’s impacts on Native Americans are very seldom addressed by the popular media, where anti-pipeline viewpoints typically derive from environmental organizations. One is hard-pressed to find any references to Native Americans when environmental organizations release articles or social media posts about the pipeline, although the groups have a similar goal of halting the pipeline. Matthew Fletcher, Professor of Law at Michigan State Law School and Director of the Indigenous Law and Policy Center, who is also a member of the Ottawa and Chippewa Indian tribe, provided some perspective as to why environmental NGOs and Native Americans are not jointly working to defeat the pipeline. He was unsurprised by the lack of a concerted effort between tribes and environmental organizations, noting that “relationships between tribal interests and environmental groups have [sic] always been fraught, confused, and even riddled with animosity.” According to Fletcher, there is a long history of conflicting interests between the two groups, as Native Americans have opposed environmental measures like the Endangered Species Act and NEPA while environmental groups have been unsympathetic to Native American cultural and sustenance practices such as whale hunting. With regard to the Keystone pipeline particularly, Fletcher notes:

I suspect that the real reason tribal interests are in the back seat here is because the law is extremely unhelpful in this area for the kind of claims the plains tribes are making. Their treaty rights have not been litigated on the question of whether the tribes retain off-reservation usufructuary rights. We don’t have a tradition either in law or policy, unlike other settler states like Canada, of requiring developers and governments to consult with Indian tribes for activities occurring near, as opposed to on, reservation lands…. pipelines are almost completely unregulated. So there’s a confluence of no legal hook to stop pipeline construction unless a local community has enough political strength to defeat it. Tribes almost never do.

Nevertheless, there appears to be a glimmer of hope for tribes to have their voice heard. In early January, tribes partnered with environmental groups and met in Washington, DC, for the “No to KXL rally”.[xiv] Native Americans even brought their political opposition to the west coast, where they joined with environmental groups, such as the Sierra Club, held a protest in front of the California office of an engineering firm contracted with TransCanada to aid in the pipeline’s construction. [xv] Environmental interests and tribal interests could mutually benefit if they aligned together against Keystone. Environmental NGOs have the resources and audience tribes need to facilitate their message. Discussing tribal interests would enable environmental organizations to perhaps reach a wider audience that is unpersuaded by their environmental appeals. Hopefully, at least for the Keystone Pipeline, environmental groups and tribes may be able to set aside their differences and expand the media rhetoric so that the rights of Native Americans can become a more prominent part of the debate.

 

Kate Lambert is a General Member on MJEAL. She can be reached at katelamb@umich.edu


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Gregory Korte, Obama: Keystone Pipeline Bill ‘Has Earned My Veto’, USA Today, Feb. 25, 2015, http://www.usatoday.com/story/news/politics/2015/02/24/obama-keystone-veto/23879735/

[ii] See id.

[iii]U.S. Senate Roll Call Votes 114th Congress – 1st Session, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=1&vote=00049 (last visited Feb. 25, 2015).

[iv] Lori Montgomery and Steven J. Mufson, GOP-Controlled House Votes to Approve Keystone Pipeline Despite Veto Threat, Washington Post, Jan. 9, 2015, http://www.washingtonpost.com/business/economy/get-ready-for-more-bipartisan-bills-in-congress-and-more-vetoes-from-obama/2015/01/09/3b8a9a72-9809-11e4-927a-4fa2638cd1b0_story.html

[v] See supra note 1.

[vi] See Jonathan Ellis, S.D. Tribe: Keystone XL ‘An Act of War Against Our People’, Argus Leader, Nov. 18, 2014,http://www.argusleader.com/story/news/politics/2014/11/18/sd-tribe-keystone-xl-act-war-people/19246691/

[vii] Id.

[viii] Robert Boos, Native American Tribes Unite to Fight the Keystone Pipeline and Government ‘Disrespect’, Public Radio International (Feb. 19, 2015, 8:45 AM), http://www.pri.org/stories/2015-02-19/native-american-tribes-unite-fight-keystone-pipeline-and-government-disrespect

[ix] Jason Coppola, Lakota Tribes ‘Refuse to Cooperate’ With Tar Sands Proponents, Truth-Out (Nov. 2, 2011 8:27AM) http://truth-out.org/news/item/4519:lakota-tribes-refuse-to-cooperate-with-tar-sands-proponents#

[x] Aldo Seoane, House Vote in Favor of the Keystone XL Pipeline an Act of War, Lakota Voice (Nov. 15, 2014), http://www.lakotavoice.com/2014/11/15/house-vote-in-favor-of-the-keystone-xl-pipeline-an-act-of-war/

[xi] Alex Seitz-Wald, Native American Willing to ‘Spill My Blood’ to Stop Keystone XL, MSNBC (Nov. 19, 2014, 12:09PM), http://www.msnbc.com/msnbc/native-american-willing-spill-my-blood-stop-keystone-xl

[xii] Id.

[xiii] For insight into tribal rituals of Lakota culture and rituals, see James R. Walker, Lakota Belief and Ritual (Raymond J. DeMallie and Elaine Jahner eds. 1980); Raymond A. Bucko, The Lakota Ritual of the Sweat Lodge: History and Contemporary Practice  1998).

[xiv] Stefanie Spear, Native Voices Say No to Keystone XL Pipeline at DC Rally, EcoWatch (Jan. 5, 2014 9:28AM), http://ecowatch.com/2015/01/05/native-voices-no-keystone-xl/

[xv] Southern California Native Community to Protest Keystone XL Pipeline in Los Angeles, Native News Online.Net (Jan. 13, 2015), http://nativenewsonline.net/currents/southern-california-native-community-protest-keystone-xl-pipeline-los-angeles/

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