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Native American Lands and the Keystone Pipeline Expansion: a Legal Analysis

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Native American Lands and the Keystone Pipeline Expansion: a Legal Analysis Forensic Research & Criminology International Journal Research Article Open Access Native American lands and the keystone pipeline expansion: a legal analysis Abstract Volume 6 Issue 1 - 2018 Multiple branches of the U.S. government are involved in a historic legal and political battle Robert Diotalevi, Susan Burhoe over granting permits to a foreign corporation to expand the Keystone Pipeline. The pipeline Florida Gulf Coast University in Fort Myers, USA is designed to carry tar sands oil mined in Canada across the U.S. border to refineries in the southern U.S. The planned pipeline expansion would traverse Native American lands. Correspondence: Robert Diotalevi, Professor of Legal Studies These lands are protected by treaties signed between the U.S. and the Great Sioux Nation. at Florida Gulf Coast University in Fort Myers, 10501 FGCU The Sioux claim that the permits that the developer of the pipeline, TransCanada, a foreign Blvd. South Fort Myers, 33965-6565,Florida, USA, corporation, are seeking to build are being considered by the U.S. government without Tel 239-590-7817, Email proper notice or permission from the Tribal Counsel in violation of the Treaties. The Native Americans have declared that if the U.S. grants the permits, it would be considered an act Received: May 12, 2017 | Published: January 22, 2018 of war. In this evolving article, we will cover important legal issues as well as offer advice and commentary regarding Native American Lands specifically as involves the controversy surrounding the Keystone Pipeline expansion. We trust that it will shed important light on significant issues affecting all Americans and be of aid in practice and life. Introduction signed a permit, which provided TransCanada access in Nebraska.4 In opposition, three private owners of large tracts of land in Nebraska The recognition by the United States government of Native mounted a legal challenge against the Governor’s taking of their land American sovereignty, the tribal way of life, sacred lands, and access by eminent domain for the pipeline.5 The landowners sued saying to these lands and precious resources found on these lands is an that the neither the Governor nor Nebraska legislature has this power. 1 ongoing struggle between the Government and Native Americans. While the Nebraska Supreme Court ultimately ruled against the Historic political and legal battles involving access through a Native supporters of the pipeline, the ruling did not provide a resolve to the American land continues to leave a mark upon American history. The Keystone XL Pipeline issue.6 At the federal level, Native American Keystone Pipeline extension exemplifies this struggle. The current tribes living in these areas protest the pipeline expansion. They argue pipeline is one of the pipelines through which crude oil is transported that the proposed pipeline passes through the Great Sioux Nation lands, from Canada into the U.S. The 1,179-pipeline extension was projected which are protected under the Treaties of Fort Laramie 1851 & 1868.7 to move 830,000 barrels of sands oil per day, and is at the center of The Treaties grant the lands to the people of the tribe. According to this battle over land rights of private U.S. citizens, Native Americans, the Treaties, no outside entity can use the land without the consent of and the U.S. government in its role as guardian of the public interest. the tribe. The Sioux Nation believes that these legal rights are ignored Operated by a foreign corporation based in Canada, TransCanada is and calls for justice are silenced.8 Recognition of Native American proposing a modification to their current pipeline that travels from sovereignty is at the heart of the issue.9 As original owners of this the oil fields of Canada to the Gulf Coast in Texas. TransCanada land, The Sioux claim standing in all matters regarding these lands. applied for a permit to expand their privately-owned pipeline system They claim that if the U.S. government permits the pipeline they will further into the U.S. That application has run into intense opposition block all access and the tribes will consider this action to be an ‘act of from environmental groups that claim that environmental concerns war against their people’.10 surrounding the pipeline have the potential for a high risk of water pollution from leaks, forest destruction by accessing the tar sand, and An historical analysis: pacts, policies and pipeline significant harm to the indigenous populations.2 The current system expansion passes from Alberta, Canada to Texas. In the late 19th century, ‘under increasing pressure from American The projected pipeline would carry Canadian oil that comes from citizens to open more roads to destinations in the West…to secure processed tar sands through a shorter route from Alberta to Steele City, Nebraska. Objections raised question whether allowing the pipeline’s 4http://boldnebraska.org/lawsuit/ Kleeb, Jane, Citizen Lawsuit Challenging Nebraska Unconstitutional Pipeline Process, Jan. 13, 2013, expansion is in the public’s best interest. TransCanada and supporters 5 of the project argue that ‘the pipeline is a critical infrastructure project Thompson v. Heineman, 857 N.W.2d 731 (2015). 6Kathleen Miller, The Fifth Judge: Thompson v. Heineman and Nebraska’s for the energy security of the United State and for strengthening the Judicial Supermajority Clause, 6 Neb. L. Rev. Bull. 1 (2015). 3 American economy’. The Governor, a supporter of the pipeline, 7http://www.nps.gov/wica/historyculture/upload/Treaties and Broken Promises, Chap. 5. Pp. 84-132.pdf 8http:///www.pri.org., Robert Boos, Native American tribes unite to fight the 1 Bredhoff, Stacey, American Originals, Seattle: The University of Washington Keystone pipeline and government 'disrespect', Feb. 19, 2015. Press, 2001, p.56-57 9http:///nativeamericannetroots.net, Ojibwa, Denying Indian Nations Legal 2 http://www. foe.org/projects/climate-and-energy/tar-sands/keystone-xl- Representation, Nov. 11, 2011. pipeline, Na. Nov.20, 2014 10http://www.vice.com/read/native-american-tribes-ready-to-go-to-war-over- 3http:// keystone-xl.com/about/ jobs-economic-benefits, Na., Dec. ,1 2014 keystone-pipeline-1119 Submit Manuscript | http://medcraveonline.com Forensic Res Criminol Int J. 2018;6(1):33‒38. 33 ©2018 Diotalevi et al. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and build upon your work non-commercially. Copyright: Native American lands and the keystone pipeline expansion: a legal analysis ©2018 Diotalevi et al. 34 the interests of the United States in the vast territorial domain of from Venezuela and the Middle East. To counter the claims of the Lakotas, Cheyennes, and Arapahos, Congress passed Senate potential pipeline leaks, and environmental damage TransCanada Resolution 136, a bill that authorized the creation of the Indian Peace claims through their website, specifically designed to promote the Commission.11 In the spring of 1868, a conference was held at Fort Keystone Pipeline states ‘that it will be one of the safest pipeline ever Laramie, which resulted in a treaty with the Sioux. The treaty was to constructed in the U.S.’. bring peace between the whites and the Sioux who agreed to settle They are claiming to be utilizing the most advanced technology to within the Black Hills reservation in the Dakota Territory. To this day, ‘monitor 20,000 data points on the pipeline’s operating conditions’. ownership of the Black Hills remains the subject of a legal dispute They claim that the Keystone XL is an environmentally responsible between the U.S. Government and the Sioux.12 The Treaty recognized project.19 On their website, www.keystone-xl.com, TransCanada the area where the projected Keystone pipeline is going to traverse as sites several climate scientists that agree that that the project will lands belonging to the Sioux tribe. have no detectable climate effect. TransCanada has invested heavily Now we travel forward 130 years to our time where the U.S. has in lobbying Congress members about the benefits of the pipeline. grown so vast and technology has advanced so much it is consuming Their selling point is that the pipeline will bring long-term jobs more oil than they can produce. Since the oil crisis of 1973, there are and economic benefits, energy security, and contribute to building those who would argue that the U.S. energy policy has been in crisis the ‘good neighbor’ community relationships between the U.S. and mode.13 Oil is a particular resource of which the U.S. cannot seem Canada. TransCanada remains committed to growth throughout North to get enough. As of 2012, the U.S. consumes the most oil products America. In 2016 they purchased the Columbia Pipeline Group for in the world. China, the next country listed in the top 15, consumes $13 billion. “Columbia Pipeline Group (CPG) owns and operates almost half that amount.14 The latest data released by the U.S. Energy more than 15,000 miles of strategically located interstate pipeline, Information Administration on crude oil imports in September of gathering and processing assets extending from New York to the Gulf 2014 reports oil imported from Canada at annually 3,129,000 barrels of Mexico, integrated with one of the largest underground natural per day. The next largest importer of crude oil to the U.S. is Saudi gas storage systems in North America”.20 With this acquisition, Arabia at 1,004,000 barrels per day.15 The U.S. consumption of oil has TransCanada now merges a major puzzle piece for the Canadian increased annually since in 2008-2013 by 2,442,000 barrels per day.16 corporation and operations in the U.S.21 Not dissuaded by the current The transportation of the oil imported to the sources of refining the oil halt in the Keystone Pipeline expansion “TransCanada continues to into its multiple uses arrives by way of oil tankers, rail, and systems of review its options and remains committed to building the Keystone pipelines that are owned by the producers of oil.
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