The federal government failed to consult with tribes before making a decision that could have devastating impact for tribal citizens.
It’s a statement that could have been made at any point in U.S. history, even during the widely-seen-as-Native-friendly Obama administration, on a bevy of issues, ranging from contract support cost reimbursement to Indian education to initial development surrounding the Dakota Access Pipeline.
It’s a perennial problem that is not supposed to happen time and again because there are historical trust and treaty obligations the federal government has with tribes that are supposed to include real consultation. And it was especially not supposed to happen after President Bill Clinton’s Executive Order 13175 of 2000, titled Consultation and Coordination with Indian Tribal Governments, which required federal agencies to consult with tribes when considering policies that impact tribal communities. President Barack Obama, too, called for all federal agencies to submit their consultation plans during his first 90 days in office, although some agencies lagged in doing so without any penalty.
The latest affront to federal-tribal consultation occurred January 24 when President Donald Trump signed executive memoranda encouraging the development of the Dakota Access and Keystone Pipelines. In doing so, he said he wanted to work with interested parties to make sure the steel used to build the pipelines was American-made, but he failed to mention any efforts his administration would make to consult with affected tribes on the matter. His transition team, which has held two meetings with tribal leaders, also failed to give tribal leaders a heads-up that the president would be taking such action. The latest transition meeting with Indian leaders was January 19, just five days before the president’s signature.
The Standing Rock Sioux Tribe, whose drinking water and cultural sites could be harmed by the Dakota Pipeline Access development at Lake Oahe, was especially perturbed, and its leaders have noted that the lack of consultation was an attack on tribal sovereignty.
Leaders with the Yankton Sioux Tribe, of South Dakota, blasted the president’s decision to subvert the Army Corps of Engineers’ plan to prepare an environmental impact study before any pipeline could be placed under Lake Oahe. “The about-face the President has called upon the Corps to make would evince a clearly arbitrary and capricious agency action in violation of the Administrative Procedures Act," the tribe said in a press release. “Should the Corps heed the President’s call and withdraw its Notice of Intent to prepare the EIS, the tribe fully intends to challenge the unlawful action to the fullest extent permitted by law.”
Robert Flying Hawk, chairman of the Yankton tribe, sent a letter to Trump on January 27 on behalf of his tribe, asking the president “to immediately release and make public all correspondence and communications received by your office pertaining to the Memorandum on Construction of the Keystone XL Pipeline and the Memorandum on Construction of the Dakota Access Pipeline….”
“The Yankton Sioux Tribe, whose treaty and ancestral lands are under threat by these projects, is dismayed by your executive actions taken just four days after you assumed office and seven days after the Army Department’s issuance of a Notice of Intent to Prepare an Environmental Impact Statement in Connection with the Dakota Access Pipeline,” Flying Hawk wrote. “The memoranda appear to have been drafted not by the U.S. Department of Justice or White House counsel, but by the attorneys for the pipeline companies themselves.
“In light of your decision not to relinquish your business interests prior to taking the oath of office, our Nation has grave concerns that these memoranda serve to fulfill commitments to your personal business interests rather than adherence to the United States’ long-standing trust responsibility to Indian tribes,” Flying Hawk added. “As a matter of transparency, and in fulfillment of your trust responsibility as the President of the United States, our Nation calls upon you to release the afore-mentioned correspondence and communications forthwith and without reservation.”
Some Democratic members of Congress were alarmed by the lack of consultation here as well.
“Instead of fast-tracking this decision, the Administration and Army Corps should immediately conduct meaningful consultation with impacted tribes, respect tribal sovereignty and self-determination, and pursue a full Environmental Impact Statement on the threat of contamination that the Dakota Access Pipeline poses to the tribe’s clean drinking water source,” U.S. Rep. Raul Ruiz (D-CA) said in a statement. “Tribes have a right to have a say in any decisions that may impact their health, land, and cultural survival.”
“Even for a President who mistakes his own whims for the rule of law and corporate profits for the public interest, these orders are irresponsible,” said U.S. Rep. Raúl Grijalva (D-AZ) in a statement that included dissatisfaction from several Democratic members of the House Natural Resources Committee. “These pipelines are being approved because President Trump wants to make polluter corporations happy, not because they’re good for the country. If either of these pipelines is finalized, the damage to water quality, public health, and eventually our climate will be on his hands. Approving the Dakota Access project in particular violates Native American sovereignty, treaty rights and federal trust responsibility which the Obama administration rightly recognized when it decided the pipeline needed further review.”
Members of Congress on the Republican side of the aisle who have in the past championed the need for better federal-tribal consultation were less concerned.
“As Alaskans know, pipeline infrastructure in the U.S. is the safest, most reliable way to transport fossil fuels,” U.S. Rep. Don Young (R-AK), chairman of the House Subcommittee on Indian and Alaska Native Affairs, said in a statement. “Not only will these projects support safe transport, they will create thousands of high paying jobs, add billions in new private spending to the U.S. economy, make significant steps towards a more energy secure North American, and put to rest some of the Obama administration’s worst political gamesmanship.”
U.S. Sen. Lisa Murkowski (R-AK), after being asked by ICMN if she was perturbed by the lack of consultation, issued a statement welcoming the president’s decision, yet she did note a need for consultation.
“President Trump recognizes the importance of energy infrastructure, and that is a welcome sign. We need a president who understands the significant contributions that infrastructure makes to our economy and our national security,” Murkowski said. “I support consultation with the people affected by infrastructure projects, and we must ensure that they are built and operated responsibly. However, for too long federal agencies have been sources of unnecessary delay and uncertainty. Reform is long overdue, and the President’s actions today are a good start.”
In a January 18 interview with ICMN, then-Secretary of the Department of the Interior Sally Jewell said that it was important for the Trump administration to get off on the right foot with tribes regarding consultation. She said she had spoken with U.S. Rep Ryan Zinke (R-MT), Trump’s nominee to be her successor, about the need for authentic federal-tribal consultation, as well as the importance of allowing the Army Corps’ environmental impact statement to be carried out. She added that she had received no signs from Zinke on these issues that worried her, yet Trump made his decision before Zinke was confirmed.
“[T]his is a difficult issue for the government to take on in its first weeks and months, and I want them to be aware of how important it is and how I believe the Corps has charted a path forward that addresses the concerns of Indian country, but it’s got to be followed through,” Jewell said.
Whether Jewell’s warning will be heeded remains to be seen.