Tribes say no to Keystone

Native Americans are pressuring the Obama administration to reject the Keystone XL pipeline, warning the project could infringe on their water rights, harm sacred land and violate America’s treaty obligations.

Tribes sent more than 100 pages of letters to the Interior Department earlier this year raising concerns about the project, which would carry oil sands from Canada to refineries on the Gulf Coast.

“Literally, thousands of sacred and cultural resources that are important to our life-ways and for our future generations will potentially be destroyed or compromised by the pipeline construction,” wrote the Great Plains Tribal Chairman’s Association, a coalition of 16 tribes in North Dakota, South Dakota and Nebraska.

The Obama administration did not publicize the submissions, which The Hill obtained through a Freedom of Information Act (FOIA) request.

The pleas arrived in the two weeks before the Interior Department was slated to file comments on the proposed pipeline to the State Department, which is currently determining whether Keystone is in the national interest.

While their concerns differed, the tribes were nearly unanimous in opposing the project.

The South Dakota-based Oglala Sioux Tribe wrote that it “continues to fully and completely oppose the approval of the TransCanada Keystone XL pipeline,” citing potential contamination of its water supply.

Other letters of objection came from the Northern Arapaho Tribe, the Ponca Tribe of Nebraska, the Yankton Sioux Tribe, the Blackfeet Tribe and the tribes of the Fort Peck Reservation, among others.

TransCanada said it is aware of the tribes’ concerns and has taken actions in response.

“We share a deep respect for the land and we deal with the concerns expressed by tribes and other landowners respectfully,” said TransCanada spokesman Mark Cooper.

Cooper said TransCanada has worked at every stage of the planning process with tribal representatives and has had thousands of hours of meetings with them.

That consultation led TransCanada to take 59 voluntary measures it said were aimed at protecting land, water and other features that are important to the American Indian tribes.

But those measures haven’t neutralized the tribal opposition, leaving another hurdle for Keystone, which developers have been waiting more than six years to build.

President Obama has expressed skepticism about the project in recent months, and the tribal concerns could give him some ammunition to shoot down the project. 

For now, Keystone’s fate is in the hands of the State Department, which is
required under a 2004 executive order to review cross-border pipeline applications with eight other agencies, including Interior. The comments from agencies were due Feb. 2.

Interior sent 175 pages of letters from tribes to the State Department, according to documents obtained by The Hill.  But the most crucial document sent by the department — Interior’s own view of Keystone — remains secret.

Secretary of State John Kerry has refused to release comments from federal agencies on whether the $8 billion project is in the national interest, outraging congressional Republicans.

“When Secretary Kerry was sworn in, he guaranteed — and he used that word, ‘guaranteed’ — a fair, transparent and accountable review of the Keystone pipeline,” Speaker John Boehner (R-Ohio) said in February. 

Interior declined to disclose its comments on Keystone, as well as any correspondence between it and the State Department — the primary focus of The Hill’s FOIA request. The department said those documents are under the jurisdiction of the State Department.

Jessica Kershaw, a spokeswoman for Interior, said that the agency “encouraged the State Department to give appropriate consideration to comments previously submitted during the Keystone XL permit review process as well as concerns expressed by some tribes in Indian Country about the project.”

While TransCanada Corp. is not planning for the pipeline to cross any tribal land, some Native Americans fear the project could infringe on their rights.

Cyril Scott, president of the Rosebud Sioux Tribe, in November declared that approving Keystone would be “an act of war against our people.” 

Various executive orders, laws and treaties require federal officials to consult with Native American tribes about decisions that could affect them.

Experts say the comments from the tribes about Keystone are not empty threats and the federal government needs to ensure that it is taking their views into consideration.

“The tribes in the Great Plains are very concerned with what the Keystone XL project could have on their treaties [with the U.S. government] and their water rights,” said John Dossett, the general counsel of the National Congress of American Indians.

Tribes could have legitimate concerns with Keystone over its impacts on aquifers and the potential for oil spills, Dossett said.

TransCanada said it sharply disagrees with the tribes’ concerns about spills.

“Keystone XL is going to be the safest pipeline constructed on American soil,” Cooper said. “The safety redundancy that’s built into this pipeline has never been seen before.”

Maylinn Smith, director of the Indian law clinic at the University of Montana, said federal officials have to listen to the tribes as they consider the permit, but she said their concerns might not stop Keystone.

“There is an executive order that requires consultation, there’s an executive order that requires protection of tribal sacred sites, and those have to be taken into consideration,” Smith said. 

Cooper said he could not guess whether whether the tribes’ objections would doom Keystone’s permit.

“All I can say is, we’ve worked very closely to establish these relationships and we’re going to continue to respond to concerns, to work within these communities,” he said.