Published March 4, 2017
WASHINGTON – Concluding a fact-finding mission to the US, United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, detailed significant flaws in the federal government’s existing approach to tribal consultation and made recommendations to rectify the process. “The legislative regime regulating consultation, while well-intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources,” says Ms. Tauli-Corpuz.
The UN Special Rapporteur’s mission from February 22 to March 3 was to catalog the human rights situation of indigenous peoples, with particular emphasis on the impacts of energy development on tribal communities. Ms. Tauli-Corpuz met with representatives of the Navajo Nation, the Hopi Tribe, the Tohono O’odham Nation, several Pueblo Nations, the Standing Rock, Cheyenne River, Yankton and Crow Creek Sioux tribes, the Mandan, Hidatsa, and Arikara Nation, the Piikani Nation of the Blackfoot Confederacy, the Ute Mountain Ute, Southern Ute and Ute Tribe of the Uintah and Ouray Reservation. “Throughout the course of my mission, I heard universally that there is a pressing need for the federal government to precisely identify requirements for meaningful consultation with Indian tribes and to implement a consistent system across all federal agencies.”
Ms. Tauli-Corpuz found that many of the issues confronted by tribes and tribal citizens in the face of energy development “are rooted in a long history of land and resource dispossession.” The Special Rapporteur acknowledged the shadow of historical trauma suffered by tribes in federal and state prioritized extractive industry operations, referencing the imposition of allotment through the 1887 Dawes Act. The UN gave considerable focus to the crisis at Standing Rock brought to a head by the Trump administration-backed Dakota Access Pipeline, and the revived Keystone-XL Pipeline. “In the context of the Dakota Access Pipeline, the potentially affected tribes were denied access to information and excluded from consultations at the planning stage of the project. Furthermore, in a show of disregard for treaties and the federal trust responsibility, the Army Corps approved a draft environmental assessment regarding the pipeline that ignored the interests of the tribe,” Ms. Tauli-Corpuz finds.
The UN Special Rapporteur notes that when the US signed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it favored meaningful consultation with tribes without obtaining “free, prior, and informed consent” as set forth in the Declaration. This, she contends, puts a greater burden on the federal government to honor President Clinton’s Executive Order 13175 which continues to provide the framework for meaningful government-to-government consultation with tribes, but, Ms. Tauli-Corpuz concludes, its application by federal agencies, “has developed into a confusing and disjointed framework that suffers from loopholes, ambiguity, and a general lack of accountability.”
The UN Special Rapporteur’s judgement reflects the statement submitted by Chief Stan Grier of the Piikani Nation, who asserts:
“The existing tribal consultation process must be overhauled, and for any proposal to be activated that impacts Tribal Nations, the consultation process must conclude with tribal consent. Time and again, in its present format, this fundamental trust responsibility is subject to abuse and circumnavigation. The federal Indian trust responsibility is a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources; this legally enforceable fiduciary obligation is not rendered moot by extractive industry campaign donations to congressmen, senators or state government executives.”
High-ranking members of the Trump administration, including the president, have financial interests or receive funding from extractive industry multinationals linked to the Bakken, DAPL, the Keystone-XL Pipeline and “Plans of Operation” for mines in Greater Yellowstone upon grizzly delisting. Unless President Trump’s unreleased tax returns demonstrate otherwise, his known investments indicate that his financial interests will be served by both the Keystone XL and Dakota Access pipelines, as will those of members of his cabinet. President Trump has interests in Energy Transfer Partners (ETP), owner of Dakota Access, and stock in Phillips 66, which will control a 25% share of DAPL upon completion. The Trump campaign received donations from Kelcy Warren, CEO of ETP. Former Texas Governor Rick Perry recently transferred from the board of ETP to Secretary of Energy. Following a recent report in Native News Online connecting Russian oligarch Roman Abramovich to Keystone-XL and DAPL, the White House confirmed that Trump’s Executive Memo requiring steel for pipelines to be manufactured in the US will not apply to Keystone-XL. EVRAZ, controlled by Putin ally and Trump family friend Abramovich, has already produced 40 percent of the pipeline for Keystone-XL. Oasis Petroleum, a principal operator in the Bakken, is new Secretary of the Interior Ryan Zinke’s largest campaign contributor.
A key figure for the Trump White House, Wyoming Senator John Barrasso, who served also is the most recent former chairman of the U.S. Senate Committee on Indian Affairs, has been one Capitol Hill’s most vocal Keystone-XL boosters. Under Barrasso’s leadership, the RNC’s 2016 Platform Committee advocated returning public lands to state jurisdiction, a policy position lobbied for by multi-billionaire energy moguls, Charles and David Koch. Among Barrasso’s donors, Chevron owns 20% of the Athabasca Oil Sands Project, and Marathon is heavily invested in the oil sands and the Dakota Access Pipeline. Koch Oil Sands Operating ULC (KOSO) owns 1.1 million acres of Alberta’s Oil Sands and has reportedly invested some $53 million in Keystone-XL lobbying efforts. TransCanada’s Keystone-XL Pipeline will transport oil sands crude. The Oglala Sioux Tribe previously called for a Congressional inquiry into alleged ties between government officials and Anadarko Petroleum and Gas, the largest landholder and lease holder in Wyoming, in respect to grizzly delisting in Greater Yellowstone. Anadarko is another of Barrasso’s main campaign contributors. “Indian lands represent twenty percent of fossil fuel energy in the United States, and possess an even greater percentage of renewable energy potential,” emphasizes Ms. Tauli-Corpuz. Advisers to President Trump have advocated privatizing 56-million acres of reservation lands for energy extraction.
Ms. Tauli-Corpuz was struck by tribal citizens’ “vibrant and enduring relationship to their culture and sacred places,” but stresses that “the ability for indigenous people to protect their sacred places is severely restricted by the United States legal system.”
The UN Special Rapporteur was provided with insight into ongoing struggles to protect Mount Taylor, Chaco Canyon, and sacred sites in Greater Yellowstone relative to the removal of protections from the sacred grizzly bear. “Proposed mining and oil and gas projects threaten to desecrate these landscapes and indigenous lifeways as the federal government, rather than the indigenous peoples concerned, has final approval authority over the exploration and development of these areas Indigenous lifeways as the federal government, rather than the indigenous peoples concerned, has final approval authority over the exploration and development of these areas,” she warns. “Domestic laws cannot define sacredness or confine the idea to specific dots on a map.”
A member of the Kankana-ey, Igorot indigenous peoples in the Cordillera Region in the Philippines, Ms. Tauli-Corpuz demonstrated her commitment to defending the sacred by joining the 123 tribal nations that have signed the indigenous solidarity treaty, The Grizzly: A Treaty of Cooperation, Cultural Revitalization and Restoration. “I sign this treaty as an indigenous person to show my support for this great effort and for all of the indigenous nations that have signed it,” she says. “I urge the government to continue to honor its treaty and trust obligations. I recommend that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples’ rights.”
The Special Rapporteur’s final report will be presented in September.