In energy circles, the town of Cushing is well known as the hub used by New York oil traders to set the benchmark price for all U.S. crude oil. Row after row of giant oil storage tanks are lined up around a moribund downtown and a shopping strip. At the edge of town stands a sign made of white pipes declaring: “Pipeline Crossroads of the World.”
This is also where TransCanada’s existing Keystone pipeline ends and the southern leg of its new Keystone XL pipeline will begin.
Less well known is the fact that Cushing sits in the Sac and Fox Nation, part of a patchwork of land belonging to Oklahoma’s 38 tribes, each with sovereignty over its own affairs and land.
TransCanada’s plan to dig a trench and bury part of its $7 billion, 1,700-mile Keystone XL pipeline right through this land has unearthed a host of Native American opposition, resentments and ghosts of the past. Winning support in Indian country is one of the last hurdles for the project, which is touted as a key to North American energy security. The question is whether gaining tribal support is a courtesy, as the company puts it, or a legal obligation.
Under Chief Black Hawk, the Sac and Fox tribe, originally from the Great Lakes region, fought bloody skirmishes in the 1800s against other tribes and federal troops. Ultimately, the tribe signed a series of treaties that pushed it to Illinois, then Iowa, then Kansas and finally in the 1870s to the Indian Territory — now known as Oklahoma.
Along the way, many of its members died of smallpox and other hardships.
George Thurman, chairman of the Sac and Fox Nation and a descendent of Black Hawk, is worried that the pipeline could dig up unmarked graves or other sacred archaeological sites even on private lands.
“There are mass graves where people were buried after dying of smallpox,” Thurman said over lunch at Rudolpho’s Mexican Restaurant in a strip mall on Cushing’s East Main Street. “There could be another buried out there.”
His aide for cultural and historic preservation, Sandra Massey, added: “How many times do we have to move? Our dead are never at rest.”
Nothing is clear-cut about the web of laws regarding Native Americans.
“There is no legal obligation to work with the tribes,” said Lou Thompson, TransCanada’s top liaison with Native Americans. “We do it because we have a policy. We believe it’s a good, neighborly thing to do.” He said the pipeline “is not passing through any tribal lands.”
But many Native Americans in the United States — and their lawyers — insist that there are legal obligations under 19th-century treaties that affirmed sovereign status of Native American tribes, which do not pay state or federal taxes and which have their own governing councils and police forces.
Moreover, the more recent National Historic Preservation Act and the Native American Graves Protection and Repatriation Act of 1990 both provide for the protection of Indian burial sites and artifacts. “When it comes to jurisdiction, it’s a tough question to answer,” said Jennifer Baker, a Colorado-based lawyer who has worked closely with South Dakota tribes. “History has developed so that legal truths get overshadowed by factual realities, and judges tend to mold the law to reflect factual realities.”
Meeting with tribal leaders
A key reality is this: Even after Trans-Canada has secured the right to build from federal and state officials, it still could run into a hitch on — or near — tribal land.
TransCanada is trying to hammer out issues with Oklahoma and Texas tribes without a fight, so it can get on with digging. The company met with tribal leaders on July 11 at the Caddo Nation headquarters in Binger, Okla., and again on Aug. 3 at the Choctaw Inn, a hotel in Durant near the Choctaw tribe’s headquarters and one of its seven casinos. Another meeting is set for Tulsa.
TransCanada has flown some tribal leaders to Calgary to tour the company’s operations center where banks of computers monitor thousands of points along existing pipelines. And it has trained members of the Alabama Coushatta tribe from south Texas to act as monitors during construction in case Indian remains or artifacts turn up on the tribe’s stretch of the pipeline.
“We walk the entire pipeline route and identify sites and alter the route of our pipeline to avoid those sites,” said Thompson of TransCanada.
He said that the company has also asked the tribes to conduct their own studies of sensitive sites. “Sometimes there are areas very significant to the tribes that don’t bear any physical evidence,” Thompson said. “It might be used to hold ceremonies, but if you walked there you wouldn’t see any evidence.”
Thompson’s efforts have new impetus. In July, TransCanada received the permits it needs to build the Keystone XL’s southern leg, which will run from Cushing to Port Arthur, Tex., and the company already has started work.