Seneca Nation files FERC notice for Kinzua Dam license

SALAMANCA, N.Y. – The Seneca Nation of Indians has taken the first step toward becoming the owner-operator of a massive hydroelectric facility built on land expropriated from the nation more than 50 years ago.

Seneca President Robert Odawi Porter has announced that the nation filed application documents with the Federal Energy Regulatory Commission Nov. 30 for the license to operate the Seneca Pumped Storage Project at Kinzua Dam.

Seneca will be competing for the permit against the current owner, FirstEnergy Corp. of Akron, Ohio. The current 50-year license to operate the pumped storage project expires in 2015.

“We’re prepared. We’ve been working on this for several years and we’re going to keep working on it. The council has made the resources available for us to keep fighting for this. It’s a once in a lifetime opportunity to undo the injustice of the taking of our land 50 years ago. So I’m very, very honored to be president at the time we get to do this,” said Porter, who won the presidency in a landslide 1,671-500 vote Nov. 2.

Authorized by Congress with the Flood Control Acts of 1936 and 1938, the Army Corps of Engineers built the Kinzua Dam near Warren, Pa., between 1960 and its opening in 1965. The purpose of the $108 million dam was flood control and pollution flushing, but in 1970 the federal government also gave away the right to generate hydropower to private, for-profit utility companies – now estimated at $13 million in profits annually.

The government forced 147 Seneca families out of their homes on 10,000 acres of their treaty-protected Allegany territory in a fertile valley, and relocated them several miles away. The homes were burned and the land was flooded to build the Allegheny Reservoir. The flooded land drowned significant cultural, sacred and ceremonial sites, including a longhouse and burial grounds.

“The construction of the Kinzua Dam and reservoir stands as the most aggressive and violent action taken by the United States against the Seneca nation in the modern era to violate the terms of the Canandaigua Treaty. To me there are historic and justice elements of this that could be remedied by the granting of the license to the nation.” -Robert Odawi Porter, Seneca president

The hydropower project was already permitted by the federal government before the Seneca Nation was informed of plans for its construction. The nation has never been invited to share in the project’s significant financial benefits.

The Seneca Nation appealed to President Kennedy in 1961 to halt construction of the reservoir, but despite campaign pledges to uphold U.S. treaty obligations, Kennedy denied the request citing the need for flood control in the interest of public safety for those living downstream from Seneca.

In taking the land, the U.S. government violated the 1794 Treaty of Canandaigua, signed by George Washington and the Iroquois Six Nations. The treaty clearly defines the boundaries and waters of the Seneca lands and promises that “the United States will never claim the same, nor disturb the Seneca nation, nor any of the Six Nations, or of their Indian friends residing thereon and united with them, in the free use and enjoyment thereof.”

“The construction of the Kinzua Dam and reservoir stands as the most aggressive and violent action taken by the United States against the Seneca Nation in the modern era to violate the terms of the Canandaigua Treaty. The taking of our land, the relocation of 800 of our people, the disinterment of our ancestors caused a real soul wound to our people that continues to this day. To me there are historic and justice elements of this that could be remedied by the granting of the license to the nation,” Porter said.

The FERC process is long and involved. Over the next three years, the nation will develop information to support its formal application, which will be filed Nov. 30, 2013. The following two years will be taken up with FERC’s review.

“We’ve got a long road ahead of us and it’s a very public, very transparent process with everyone involved,” Seneca attorney Thomas Jensen said.

Seneca is not the first indigenous nation to seek a FERC license. The Confederated Tribes of Warm Springs Reservation in Oregon and the Confederated Salish and Kootenai Tribes of Montana both sought licenses for power facilities built on their land.

“In both instances the projects were constructed without any regard for the interests of the tribes whose resources were hurt by those projects, fisheries in particular, and in those cases the tribes had no benefits,” Jensen said.

In both cases, the tribes worked out an arrangement in which the incumbent license holders shifted the ownership interest over the tribes after a number of years.

Although Seneca is not the first nation to seek a FERC license, it will be setting a precedent in bringing the first water rights claim in the eastern part of the country, Jensen said.

“The Seneca Nation is asserting a treaty right to water in the Allegheny River, to the river in its natural form. The treaty guaranteed them fair use and enjoyment of this valley, the river, its banks and the water in it. Seneca is bringing a water rights claim that tribes out west are used to seeing, but it hasn’t been a part of policy here in the east.”

Porter suggested a number of compelling reasons why the Seneca Nation should be the license holder, including its plan for economic stability in the region.

“FirstEnergy has got to think about making a profit for its shareholder. We don’t have the same burden. Our goal is to provide a better quality of life for Seneca people and also to stimulate and promote the region. We have many non-Native neighbors and communities. We’ve been a long, long time in this area and we think as the license holder we can do a much better job of providing development opportunities for the people in our area.”

The nation is also “vigorously conservationist,” Porter said. “We just have a very different approach to the idea that this is just a profit generating hydro facility.”

Over the next two years, Seneca will find and partner with a hydroelectric company with the expertise to operate the facility, “but I’m absolutely confident we can identify a partner to work with for the short term to establish our capacity and ultimately operate it by ourselves.”

As for the cost of the project, Seneca does not expect to pay for more than developing the application, Jensen said.

“Our view is, frankly, that FirstEnergy has been using Seneca land and water for 45 years without paying a penny for it and the calculation of the net assets and burdens here would result in FirstEnergy writing the nation a very large check.”

Forced removal: Gain a house, lose a culture Seneca Nation citizen Steve Gordon was a child when the federal government seized 10,000 acres of productive Seneca land to build a hydroelectric plant. His family and 147 other families, who lived a traditional life in a close knit community, were removed from their homes and relocated to communities where they were given new ranch-style houses. Gordon talked about the experience. Steve Gordon: They moved us in the summer of 1965. I was about 11 years old at the time. As soon as a family would move out, they’d burn the home. I think they were fearful that we’d move back into them. Indian Country Today: What was your understanding of what was happening?

SG: Being 11 years old, I really didn’t understand what it was about, because they said it was to control the flooding in Pittsburgh, but having never left the reservation I had no clue even where Pittsburgh was. ICT: They told you it was for flood control?

SG: Yes, the original plan was flood control. It was never revealed to us until later on that they were building a hydroelectric dam. When our engineers and lawyers studied it, they found a different way to go for the flood control through the Tonawanda Valley that would be cheaper. It would have been a natural flood plain. But they were bound and determined to take our 10,000 acres. ICT: Where did your family go?

SG: They moved us to the west, I would say, as the crow flies, maybe about four miles onto Seneca land. They built us a three-bedroom ranch-style home. We were allowed to get a home up to $35,000 and three acres of land. We had a little house. I always tell people it was funny because the house I had lived in had a front door and a back door; the new house had 12 doors. I didn’t know how to react to that. I remember the first night we stayed in our new house I asked my mother was I supposed to shut my bedroom door. She didn’t know either, so I left it open. ICT: Was your family upset that they had to leave their home or did they feel compensated by the new house?

SG: I think if you compare the old house and the new house, they were happy in that regard, but it wasn’t until later on that they felt the impact of being removed. What we lost in that process was incredible soil. We no longer had our gardens because where they moved us was clay and we couldn’t grow anything there. What we left was the best land there was. It was great land and all the families had gardens and we all relied on our gardens; 147 families were removed. It was a small community. Our neighbors were mainly my extended family – my great-grandmother was the matriarch of our family and everyone radiated around her. What we lost in the process was we lost all our water wells, we lost access to all our medicinal plants. We lost our orchards. There was so much we lost in the process and, of course, the worst thing we lost was just that way of living and kind of with it went the language, because we really didn’t live that way anymore. ICT: So the people who formed that community were separated?

SG: Yeah, you would say so, because we had been our own community. We didn’t need to go anywhere. Most of the families were removed to two different communities. ICT: It seems amazing that as recently as the 1960s that the government was still relocating American Indians.

SG: Yes, it is and to take 10,000 acres of our best land – it was our hunting land, our planting land where our medicines were and where we used to fish in the river. They created a reservoir that chased the game fish out of the river. Well, I guess they brought in what they call game fish – non-native species that ate the eggs of the native species. It was most devastating politically. They broke the 1794 treaty. That was the most political wrong that was done. What is their word worth? George Washington signed that treaty. ICT: What do you think of the proposal to take over the hydroelectric plant?

SG: I think it would be like the tables turning. Obviously, there are new revenues to be made from it, revenues that they’ve enjoyed for years. Like I said, we had no inkling that electricity was going to be produced. We were quite surprised when we found out. They told us that this land that we lived on would flood maybe once every 100 years and we did have a flood, I think in 1973, but it was caused by the dam. And then you’d think as a good gesture they would have allowed us to get cheaper electricity, but that was never offered. ICT: So taking over the hydro plant would compensate for the taking of the land?

SG: Yes, it’s an injustice that’s still going on today. I’m basically the last generation that remembers it. After a while nobody will even know that we lived down there.