Keystone pipeline’s path cuts across Indian country, history

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CUSHING, Okla. — In energy circles, the town of Cushing is well known as the hub used by New York oil traders to set the benchmark price for all U.S. crude oil. Row after row of giant oil storage tanks are lined up around a moribund downtown and a shopping strip. At the edge of town stands a sign made of white pipes declaring: “Pipeline Crossroads of the World.”

This is also where TransCanada’s existing Keystone pipeline ends and the southern leg of its new Keystone XL pipeline will begin.

Less well known is the fact that Cushing sits in the Sac and Fox Nation, part of a patchwork of land belonging to Oklahoma’s 38 tribes, each with sovereignty over its own affairs and land.

TransCanada’s plan to dig a trench and bury part of its $7 billion, 1,700-mile Keystone XL pipeline right through this land has unearthed a host of American Indian opposition, resentments and ghosts of the past. Winning support in Indian country is one of the last hurdles for the project, which is touted as a key to North American energy security. The question is whether gaining tribal support is a courtesy, as the company puts it, or a legal obligation.

Under Chief Black Hawk, the Sac and Fox tribe, originally from the Great Lakes region, fought bloody skirmishes in the 1800s against other tribes and federal troops. Ultimately, the tribe signed a series of treaties that pushed it to Illinois, then Iowa, then Kansas and finally in the 1870s to the Indian Territory — now known as Oklahoma.

Along the way, many of its members died of smallpox and other hardships.

George Thurman, chairman of the Sac and Fox Nation and a descendent of Black Hawk, is worried that the pipeline could dig up unmarked graves or other sacred archaeological sites even on private lands.

“There are mass graves where people were buried after dying of smallpox,” Thurman said over lunch at Rudolpho’s Mexican Restaurant in a strip mall on Cushing’s East Main Street. “There could be another buried out there.”

His aide for cultural and historic preservation, Sandra Massey, added: “How many times do we have to move? Our dead are never at rest.”

Nothing is clear-cut about the web of laws regarding American Indians.

“There is no legal obligation to work with the tribes,” said Lou Thompson, TransCanada’s top liaison with American Indians. “We do it because we have a policy. We believe it’s a good, neighborly thing to do.” He said the pipeline “is not passing through any tribal lands.”

But many American Indians in the United States — and their lawyers — insist that there are legal obligations under 19th-century treaties that affirmed sovereign status of American Indian tribes, which do not pay state or federal taxes and which have their own governing councils and police forces.

Moreover, the more recent National Historic Preservation Act and the Native American Graves Protection and Repatriation Act of 1990 both provide for the protection of Indian burial sites and artifacts. “When it comes to jurisdiction, it’s a tough question to answer,” said Jennifer Baker, a Colorado-based lawyer who has worked closely with South Dakota tribes. “History has developed so that legal truths get overshadowed by factual realities, and judges tend to mold the law to reflect factual realities.”

Tribal land issues

A key reality is this: Even after Trans-Canada has secured the right to build from federal and state officials, it still could run into a hitch on — or near — tribal land.

TransCanada is trying to hammer out issues with Oklahoma and Texas tribes without a fight, so it can get on with digging. The company met with tribal leaders on July 11 at the Caddo Nation headquarters in Binger, Okla., and again on Aug. 3 at the Choctaw Inn, a hotel in Durant near the Choctaw tribe’s headquarters and one of its seven casinos. Another meeting is set for Tulsa.

TransCanada has flown some tribal leaders to Calgary to tour the company’s operations center where banks of computers monitor thousands of points along existing pipelines. And it has trained members of the Alabama Coushatta tribe from south Texas to act as monitors during construction in case Indian remains or artifacts turn up on the tribe’s stretch of the pipeline.

“We walk the entire pipeline route and identify sites and alter the route of our pipeline to avoid those sites,” said Thompson of TransCanada.

He said that the company also has asked the tribes to conduct their own studies of sensitive sites. “Sometimes there are areas very significant to the tribes that don’t bear any physical evidence,” Thompson said. “It might be used to hold ceremonies, but if you walked there you wouldn’t see any evidence.”

Thompson’s efforts have new impetus. In July, TransCanada received the permits it needs to build the Keystone XL’s southern leg, which will run from Cushing to Port Arthur, Texas, and the company already has started work.

In South Dakota, TransCanada threaded its way in between the seven major reservations that cover about 16 percent of the state. The Keystone XL would enter the northwest corner of South Dakota from Montana then move diagonally. It would run southwest of the Cheyenne River Sioux Indian Reservation and north of the Pine Ridge Reservation of the Oglala Lakota. It would narrowly miss the Rosebud Indian Reservation, and travel south of the Crow Creek and Lower Brule.

“It’s not necessarily by design,” Russ Girling, TransCanada’s chief executive, said in an interview. “When you build a pipeline . . . the least environmental disturbance is a straight line from A to B.”

A history of broken promises, and treaties, has fueled opposition, especially in South Dakota. Last October, a group of Indians were ejected from a speech by President Obama after shouting that the president should respect the tribes and stop the pipeline.

On Feb. 18, the Black Hills Sioux Nation Treaty Council demanded that Obama and Congress prevent construction of the Keystone pipeline

“The Great Sioux Nation hereby directs President Barack Obama and the United States Congress to honor the promises of the United States made through the 1851 and 1868 Fort Laramie treaties by prohibiting the proposed Keystone XL Pipeline and any future projects from entering and destroying our land without our consent,” said a resolution approved by all seven delegations.

The Fort Laramie treaties ceded all of South Dakota west of the Missouri River to the Lakota tribes, or Sioux. While legislation has reduced the size of that reservation, the treaties were never revoked. Baker, the lawyer, says they should still be considered in force.

Moreover, while the pipeline doesn’t cross current reservation boundaries in South Dakota, it runs across rivers and water pipelines that do.

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