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Shrinking boundaries may create fainter voices

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McDERMITT, Nev. – Some tribes trying to preserve their living cultural legacy on diminishing tribal lands are confronting a federal process that could be summed up, “We talk, you listen.”

Consider the plight of the Fort McDermitt Paiute & Shoshone Tribe of Nevada and Oregon, whose ancestral lands are being crossed by Ruby Pipeline, a $3 billion project slated to carry oil and gas from Rocky Mountain tribes and other producers to the West Coast at a rate of 1.5 billion cubic feet per day.

The tribe’s jurisdictional boundaries – diminished more than a century ago under allotment – are within a half-mile or so outside the pipeline’s immediate area, but the tribe’s documented traditional territories, cultural heritage, and ancestral lands will be affected.

Government-to-government consultation with tribes on major projects involving federal lands is required, but decisions can be made without tribal concurrence when projects do not cross present-day jurisdictional boundaries. Since those boundaries have narrowed over time, less attention sometimes focuses on what tribes are saying.

“A big problem is FERC’s (Federal Energy Regulatory Commission) lack of consultation with transparency,” said Billy A. Bell, chairman of the Fort McDermitt tribe. “They had BLM (Bureau of Land Management) hold public hearings, but we’re not the public – we’re a tribal nation.

“They held public meetings in areas where the tribes weren’t,” he said, citing as an example a federal consultation meeting in Reno, Nev., which is “a 500-mile round trip for Fort McDermitt. When we found out about the meeting, we sent someone out there and they signed in as Fort McDermitt and they (federal officials) counted that as tribal consultation with us.”

Now there’s a definite reluctance to share anything further with the federal government, he said. “Our traditional position is that we don’t trust the federal government with our last remaining precious history – anything that shows our earlier life. They’ve taken anything we’ve showed them.”

Some 10,000 items of cultural heritage, including arrowheads, scrapers and others, were taken from surface ancestral lands by a now-terminated subcontractor on the Ruby Pipeline project. Remarkably, although the items were outdoors for thousands of years, now the tribe can’t have them back unless they provide a temperature-controlled environment meeting state standards, Bell said.

A Native American Rights Fund attorney said the shrinking of tribal lands and tribal control has been ongoing for some time.

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“Between initial reservations established under the first wave of treaties and the second wave – the ‘Steal Treaties’ many tribes called them – millions and millions more acres were ‘ceded’ to the U.S.,” said Steven C. Moore, NARF senior staff attorney, who noted that as reservation borders drew inward “sacred places and sacred patrimony were unprotected and unprotectable.”

The central problem in protecting the tribal heritage of Fort McDermitt and other tribes is found in “federal laws, and the interpretation of them by courts, that bend and bend and bend to the will of the majority society,” Moore said, so they sometimes fail to provide the means by which tribes are supposed to be given a voice.

“Ruby Pipeline – while facially serving laudable goals of American energy independence and a better market for domestic natural gas – represents another instance where federal agencies – FERC, in this case – seem intent on rushing through and papering over their obligations to tribes. This only results in further delays if and when tribes get fed up and litigate.”

His analysis echoes some of the 100 pages of tribal testimony and comment that reveal a lot of skepticism from at least 14 tribal nations about the project’s effects on tribal lands and resources.

“Multiple tribes have expressed concerns about the project’s impacts on archaeological and historic sites, potential for damage to remote and pristine lands, and potential for destruction of sensitive and traditional cultural resources,” according to the government’s own record of decision for the project. “Furthermore, many tribes have expressed dissatisfaction with government-to-government consultation efforts for the project.”

Even project-supporting tribes showed some concern after publication of the draft environmental impact statement.

A letter from the 54-member Council of Energy Resource Tribes, which expressed the “strong support of CERT and its member tribes” for the project and which partnered with Ruby Pipeline LLC for tribal outreach, noted that while the government complied with the letter of the law, “virtually none of the tribal reviewers felt that the process used lived up to the spirit and intent of the United States’ government-to-government consultation responsibilities vis-a-vis the tribes.”

Matthew Box, chairman of the natural gas-rich Southern Ute Indian Tribe in southwestern Colorado, said the tribe supports the pipeline project but is “hopeful” that Ruby Pipeline and its parent company, El Paso Corporation “will remain true to their commitment to work proactively with Indian tribes along the proposed route” and notes that such cooperation is “key to maintaining the Southern Ute Indian Tribe’s support for this project.”

The energy-developing Ute Indian Tribe of the Uintah and Ouray Reservation in Utah supports the project and “is confident that all cultural and environmental site issues will be satisfactorily addressed by Ruby,” while the equally supportive Ute Mountain Ute Tribe of southwestern Colorado praised the “CERT-Ruby strategy of reaching out to the affected Native communities” to ensure the pipeline location is undertaken in a “culturally sensitive and respectful manner.”

The Ruby Pipeline Project remains under litigation brought by environmental/wildlife preservation organizations in the 9th U.S. Circuit Court of Appeals.