PIERRE -TransCanada Corp. cannot meet the socio-economic conditions necessary for building the proposed Keystone XL tar-sands crude-oil pipeline through Lakota treaty territory, representatives and expert witnesses for four tribal governments testified during hearings July 27 through Aug. 4.
The South Dakota Public Utility Commission scheduled the evidentiary hearings to air debate for its decision on the Canadian corporation’s request for renewal of a permit to build the line 314 miles through the counties of Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman and Tripp.
The permit would help the Canadian company reach its longstanding goal of connecting the Alberta oil shale fields with the refineries and export facilities on the Texas Gulf Coast. Standing Rock Sioux Tribal Councilor Phyllis Young said water quality is the main socio-economic concern. Treaty rights establish Lakota dominion over the air, land, and water that TransCanada Corp. seeks for the pipeline, but the company has not consulted with the tribe on that matter.
"I take objection with TransCanada, which does not have the authority to do that in this country. Treaties have set aside the homelands for us. Please understand, we are protecting our people," Young said. "The ranchers, farmers, and Indians in South Dakota have not been consulted. I have a long history of relations with the people who want their homes to be protected, I speak for them also," she said.
In testimony filed prior to the hearing, the Standing Rock Sioux Tribal Historic Preservation Office elaborated on the argument:
"The Keystone XL Pipeline (and other pipelines) will cross aboriginal and treaty territory that was exclusively set aside by the U. S. government for the Sioux Nation (Ft. Laramie Treaties of 1851and 1868)."The Sioux people were nomadic people and followed the buffalo. Our valuable cultural resources are located throughout the path of the Keystone XL Pipeline. Yet the proper procedures to make the requisite determinations have not been followed.
"The tribe said the permit renewal should be denied because "Keystone XL Pipeline is unable to continue to comply with Amended Condition number 43." That condition of the original 2009 state permit, a document which has expired due to inaction, requires TransCanada Corp. to notify landowners if a possible protectable resource is found in the course of pipeline-related activities.
In testimony filed prior to the hearings, Young stated: "TransCanada has never demonstrated any respect for the Indian nations. That is why the PUC should deny certification of the permit for the Keystone XL Pipeline Project."
TransCanada Corp. attorney William Taylor said the company is not required to consult with tribes. "Government-to-government discussions are between the U.S. and tribes, not TransCanada and tribes," he said. "This discussion is irrelevant."
Commissioners granted Taylor the opportunity to file a post-hearing brief arguing the basis for his objections. He asked Young, "Are you familiar with TransCanada’s Indigenous People’s Policy." She replied: "I’m not sure."
The policy states: "TransCanada respects the diversity of aboriginal cultures, recognizes the importance of the land and cultivates relationships based on trust and respect; TransCanada works together with aboriginal communities to identify impacts of company activities on the community’s values and needs in order to find mutually acceptable solutions and benefits."
Jennifer Baker, attorney for the Yankton Sioux Tribe, presented a portion of the policy statement and asked, "Do you think TransCanada complies with its own policy on aboriginal relations?"
Young answered, "No."
Representing the Yankton Sioux Tribe was Faith Spotted Eagle, elected by the tribal General Council to the Ihanktonwan Treaty Committee, which she chairs. She said the objective of the Yankton tribe’s testimony was "to provide information to the South Dakota Public Utilities Commission that the applicant does not continue to meet all conditions upon which the permit was issued including violations of treaties, socio-cultural threats, and threats to safe drinking water, in particular reference to the potential coming of man camps which presents a safety conference of an at risk population already threatened by violence.
"It is frightening to think that no fore planning has been done to even recognize what happens when man camps are plopped into rural communities where wide gaps exist in law enforcement further impinged upon by cross-jurisdictional problems between reservation and state areas, which are long standing issues," she said.
"Man camps are inhabited by young and single men who are suddenly away from their families, spouses, and have the financial means to use and abuse illicit drugs. The result is easy to predict and does not require any scientific analysis - these young men, unfortunately, increase the crime rates including violent crimes, sexual crimes, and drug-related crimes. It is common sense that these men will need recreational outlets and will seek these at nearby casinos, including ours," she said, citing the tribe’s Ft. Randall Casino and Hotel.
She noted that "the pipeline would trespass right through treaty territory guaranteed by the Ft. Laramie Treaty as well as additional lands beyond that area that are unceded lands, and we still retain a multitude of rights on those lands based on the treaty that are protected by federal law and that are vital to our cultural, spiritual, and physical survival."
Among the rights are: hunting, fishing, gathering medicinal plants, use of the water, burial responsibilities, and sacred site protection, she said.
Yankton Sioux Tribal Police Chief Chris Sauncosi notified commissioners that he "can show that TransCanada cannot continue to meet the conditions upon which its original permit was issued."
In a written statement, Sauncosi said, "I can provide testimony about the lack of interaction or communication between TransCanada and Tribal law enforcement and emergency response personnel."
Cheyenne River Sioux Tribal Historical Preservation Officer Steve Vance, also formerly a law enforcement officer for the tribe, filed testimony stating that the pipeline construction phases "will greatly hinder the tribe’s and tribal member’s access to numerous cultural and historic sites. After all, people cannot simply walk through active construction zones to get to these sites." If the pipeline is built, he said, "There will undoubtedly be an ongoing need for general inspection and maintenance of the completed pipeline. This, in turn, would place pipeline workers within the vicinity of many sacred places. Traditional practitioners seeking solitude while performing traditional worship practices would almost certainly be interrupted by pipeline workers. "As such, any disturbance by pipeline workers will necessarily have an immense negative impact on the ability of tribal members to perform traditional practices at these affected cultural and historical sites.
Vance compared the pipeline’s potential impact to the results of mining in the Black Hills. "This proposed project will have long term negative effects emotionally and spiritually on many tribal members.
Keystone held one teleconference some four years ago and made a visit to the tribal chairman’s office a year ago, according to Vance. However, he said, "The impacts to cultural resources could not be discussed during these preliminary meetings because the resources were not sufficiently identified at the time."
He said measures to avoid and mitigate impacts on cultural and historic resources should have been addressed in a Programmatic Agreement, but the tribe "was not involved in the development of the P.A."
Paula Antoine, Director of the Sicangu Oyate Land Office said the Rosebud Sioux Tribe "has passed resolutions to deny the KXL any access to our lands and in opposition of the pipeline. We view the KXL pipeline as the threat of "the black snake coming from the north" that was revealed to us through prophecy by our ancestors many years ago."
She noted that a spiritual camp was established in March 2014 to publicly oppose "the black snake and all of the negative things it represents."
She argued that "none of the testimony offered by Keystone or the PUC Staff shows or attempts to even demonstrate that the welfare of the citizens of South Dakota will not be impaired by the project. She said TransCanada has yet to prove its project will not pose a threat of serious injury to the socioeconomic conditions in the project area; will not substantially impair the health, safety, or welfare of the inhabitants in the project area; and will not unduly interfere with the orderly development of the region.
None of the testimony offers any evidence regarding whether or not the project will continue to have minimal effects in the areas of agriculture, commercial and industrial sectors, land values, housing, sewer and water, solid waste management, transportation, cultural and historic resources, health services, schools, recreation, public safety, noise and visual impacts, she said.
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