Native North Americans and Energy Development

[Having contributed a number of encyclopedia entries over the years to SAGE publications’ Green Society series, I was approached in October 2014 to submit an entry for a new upcoming reference work, The Encyclopedia of Energy and Environment. I reviewed the list of solicited entries and informed the editors that there was one topic — on the Intertribal Environmental Council — that I would be interested in writing about as it fit in with my current research agenda.

As I began my research however I realized that a reference work of this scope having only one, very specific (and short) article on a single organization would be completely inadequate. I wrote back to the editors and suggested that, given the significance of energy resources on Native American lands, and the horrible environmental impacts Indians have suffered as a result, that this reference work really needed a much more substantial, broad entry. They swiftly agreed and commissioned me to write it. I submitted the entry in February 2015.

I found the process of researching and writing this article very valuable to me as an Indigenous studies librarian, as it gave me a much clearer understanding of the different processes by which Indigenous peoples were deprived of their lands in the U.S. and Canada, and the extent to which these processes were tied to resource extraction.

Regrettably, I have just learned that for financial reasons the entire  project has been cancelled; however, since the rights to the entry have been returned to me in full, I present it here instead — MD].

 

Native North Americans and Energy Development

The lands and peoples of Native American tribes and Canadian First Nations have long played an important role in the development of energy resources in North America, one which may become more significant in the future. Not only do their recognized territories in the western regions of both countries contain significant reserves of fossil fuels and uranium, but throughout the continent Native lands hold considerable potential for renewable energy projects.

At the same time, energy resource development and extraction have resulted in a wide range of harms and injustices, including the toxic contamination of air and ground water supplies, exploitative labor practices, and inequitable financial compensation for Indigenous peoples’ resources. Their historic and contemporary economic and political marginalization has in many cases compelled American tribes and First Nations to accept polluting or inherently hazardous energy-related projects (such as coal power or nuclear waste storage), causing sometimes bitter controversy both within and outside tribal governments. Given this history, some new energy projects are increasingly being subject to Indigenous legal and political opposition.

In the United States, Native American territory was dramatically reduced as a result of the Revolutionary War, the Louisiana Purchase and treaty-making, settler colonialism and, finally, outright warfare. During the “removal era” between 1830-1868, Indians were moved west and isolated onto reservations representing little more than 2% of the land mass of the United States — much of it agriculturally marginal — which later turned out to hold vast energy wealth. It is estimated that the 53 energy tribes in the continental United States and Alaska control 890 million barrels of oil, in addition to 5.6 trillion cubic feet of natural gas, amounting to 20% of known reserves. Nearly 30% of America’s coal west of the Mississippi and up to 50% of its uranium lies within Native American tribal lands. Tribal lands hold 20% of America’s non-renewable resources and could potentially supply 10% of domestic fossil fuel needs.

Over the course of more than a century, tribes were alienated from their lands through the 1831 decision of the Marshall Court which put Indian lands in “trust” of the federal government, thereby severely constraining their sovereignty; the 1887 General Allotment (or Dawes) Act, which resulted in the partitioning and selling off of plots to non-Natives in an effort to “civilize” the Indians; and the 1934 Indian Reorganization Act (IRA), which, in addition to placing reserves under the jurisdiction of the Bureau of Indian Affairs (BIA), forced tribes to adopt “tribal councils” in contravention of their traditional forms of governance. When the federal government in 1953 resolved to “terminate” its treaty-based relationship with and trust responsibilities for Indian tribes and “assimilate” them into the “mainstream”, more than 100 tribes lost their status, and 2,500,000 further acres of lands were removed from federal trust. Throughout these decades, the BIA negotiated leases with private energy companies and oversaw enforcement of federal laws, ostensibly acting in the “best interests” of tribes, consistent with their trust responsibilities; however the Presidential Commission on Indian Reservation Economies (1983-4) as well as a decades-long class-action lawsuit — only settled out of court in 2009 for a fraction of the original claim — would establish that the Bureau consistently mismanaged tribal resources and colluded with energy companies to deprive tribes of billions of dollars in owed royalties. As a result of these federal policies, Indian Country is now a fragmented patchwork of trust, tribal and private land ownership and tenure, making resource development exceedingly complex, involving at least three federal offices in the Department of the Interior, including the BIA, the Bureau of Land Management, the Office of Natural Resources Revenue, and (in the case of coal) the Office of Surface Mining.

While Canada’s First Nation reserves are not concentrated in the west, its fossil fuel deposits are, and 95 First Nations, most of them in Alberta and British Columbia, stand to be affected by — and could potentially benefit from — proposed energy resource projects into the 2020s. Unlike American Indian energy tribes, First Nations do not generally own the energy and mineral resources on their lands, unless this has been specified in a land claims process; instead the Crown owns them in trust. Many Aboriginal peoples, between 1871 and 1921, signed 11 numbered Treaties — in which they agreed to share their traditional lands with the settlers — with the exception of the Inuit in the north, and most of the First Nations in British Columbia, where treaty processes only commenced in 1992. Canada’s Constitution also grants Aboriginal peoples inherent rights to use their lands for traditional purposes. However, the Constitution also places natural resource development — including energy — within the purview of provincial governments; because of this, First Nations have, since 1974, needed to negotiate leasing and royalties on a case-by-case basis through Indian Oil and Gas Canada (IOGC), an agency of Aboriginal Affairs and Northern Development Canada (AANDC), which also oversees Indian Oil and Gas Regulations; although royalty rates are generally set according to that of the province. Prior to 1974, oil and gas on reserves was legislated under The Indian Act, the paternalistic and controversial legislation which has governed all aspects of Aboriginal society since 1876.

While the governance of energy extraction and Indigenous sovereignty differs between the United States and Canada, Native peoples in both countries have suffered disproportionately from socio-economic marginalization, with significantly poorer health outcomes, lower levels of educational attainment and shorter lifespans. In many cases this marginalization has been as the direct result of energy resource development, and undue environmental burdens as a consequence of proximity to energy extraction projects and the lack of enforcement of environmental regulations — or, in the case of American Indian reservations, their outright absence.

Large-scale fossil fuel and renewable energy projects in Canada have produced harmful impacts for First Nations peoples. The massive James Bay Hydro Dam project in Quebec — initiated in 1971 by the provincial government without informing or consulting with the Cree — flooded 1,000 square kilometers of boreal forest, generating widespread methyl mercury contamination of waterways and fish, and a loss of access to traditional hunting, trapping and fishing resources. In northern Alberta, the massive and controversial bituminous sands extraction project (better known as “tar” or “oil” sands) requires the clear-cutting of thousands of square kilometers of forest to mine an estimated 1.7 trillion barrels of oil, only 174 billion of which are recoverable. The energy- and water-intensive processing required to upgrade the bitumen into oil draws 349 million cubic meters of water per year from the Athabasca River and produces gigantic artificial lakes of highly toxic slurry. Despite assurances from industry, a 2014 study by Dr. Stéphane McLachlan at the University of Manitoba found that leakages from these holding ponds have contaminated the Athabasca and its tributaries — again adversely affecting Constitutionally-protected hunting, trapping and fishing rights — and are implicated in elevated occurrences of normally rare cancers and other diseases among the region’s Indigenous peoples.

In the American Four Corners region of the southwest, the Navajo Nation and the adjacent Hopi and Crow reserves have been gravely affected by both coal and uranium mining. Between 1964 and 2005, Peabody Coal’s Black Mesa mine, and its slurry pipeline for delivering the coal to a power station hundreds of miles away, drew 3 million gallons daily from the Navajo Aquifer, impacting potable water supplies. The Four Corners Power Plant, operating within the Navajo Nation without any enforceable federal or state environmental regulations, is one of the nation’s biggest single-source polluters, producing extremely high local airborne carbon dioxide, methane, sulfur and nitrogen oxide levels, as well as hundreds of pounds of mercury per year. Uranium mining, too, has imposed terrible consequences on the region’s environment and Indigenous peoples: Between 1944 and 1989, over 1000 uranium mines were in operation inside the Navajo Nation, mostly using underpaid, ill-equipped and deliberately misinformed Native miners, who would later contract cancers and other respiratory diseases and die in great numbers. In 1979 a major dam failure of the United Nuclear Corporation uranium tailings pond at Church Rock, New Mexico, spilled 90 million gallons of heavily radioactive slurry into the Puerco River resulting in a release of radioactivity so massive it was second only to the cumulative effects of the continental nuclear weapons testing program.

In response to these and other environmental injustices, an era of Indigenous activism in the 1960s and 70s led to the creation of a number of energy- and environment-related organizations, including the Council of Energy Resource Tribes (representing 53 Indian tribes and 4 First Nations), the Indigenous Environmental Network and the Inter-Tribal Environmental Council. Yet energy remains controversial within tribes; for example, in a bid for economic development and self-determination, the Navajo Nation in 2013 purchased the Navajo Mine — which is the exclusive fuel source for the Four Corners Power Plant — from the Australian energy corporation BHP Billiton, including responsibility for the cleanup of their accumulated coal ash waste, a decision which has led to heated debate within and without the Nation.

Such independence has been encouraged in recent years by the institution of new forms of governance intended to address some of these past injustices and the ongoing socio-economic marginalization of Indigenous peoples and empower them to benefit from energy development economically. Furthermore, a series of legal decisions in Canada — in particular the 2014 Tsilhqot’in decision recognizing Indigenous title to land based on oral traditions — have also recognized and affirmed First Nation sovereignty, promising complex and potentially prohibitive challenges to further fossil fuel resource development, especially pipelines. In the U.S., Title V of the 2005 Energy Policy Act enables tribes to enter into Tribal Energy Resource Agreements (or TERAs) directly with the energy industry; however tribes must first apply to the federal government to qualify. One of the controversies associated with TERAs is that they would relieve the government from any of the project’s risks, including pollution control and environmental remediation — one reason why there has been a marked lack of interest in TERAs among energy tribes. In Canada, 2005 also saw the passage of the First Nations Oil and Gas Moneys Management Act, through which First Nations can apply to have greater control over managing their fossil fuel resources, and to have exclusive control over the royalties earned from extraction, thereby removing the Crown’s management — but not trust — role.

Even as governments and industry publicly promise new and more equitable approaches to working with Native Americans and First Nations, they are facing ever-more determined Indigenous opposition to certain energy extraction and transportation projects. The Navajo Nation has put a halt to further uranium extraction; a coalition of Indians, ranchers and other environmentalists have made the Keystone XL pipeline a political firestorm; in 2013 the Elsipogtog First Nation of New Brunswick set up roadblocks to halt hydraulic fracturing (or “fracking”) while the following year the Pimicikamak Cree of Manitoba occupied a Manitoba hydro generating station; and First Nations along the Northern Gateway pipeline route in British Columbia are vowing to stop it in the courts.

The prospects for future energy development on Indigenous lands in North America are both controversial yet potentially promising. While a legacy of exploitation, contamination, disease and poverty resulting from fossil fuel, hydro and nuclear energy development has cast a long shadow over the original peoples of North America, their lands hold tremendous potential for renewable solar, wind, geothermal and biomass developments, which will entail new, innovative partnerships between Indigenous communities, industries and governments. In the U.S. these programs are overseen by the BIA’s Tribal Energy Program, and in Canada through AANDC’s First Nation Infrastructure Fund. The growing demand for renewable energy solutions in an era of climate change can in part be met by both Native American tribes and Canadian First Nations on their pathways towards self-determination.

Michael Dudley
University of Winnipeg

 

See also: Canada; Cancers, Environmental Exposures Related to; Coal mining; Keystone XL; Nuclear accidents; Oilsands; United States.

 

Further Reading

Bains, Ravina. Opportunity for Prosperity for First Nations Through Oil and Gas Development. Vancouver, BC: The Fraser Institute, 2013.

Grogan, M., Morse, R., & Youpee-Roll, A. Native American Lands and Natural Resource Development. Revenue Watch Institute, 2011.

Johansen, Bruce. E. Indigenous Peoples and Environmental Issues. Westport, CN: Greenwood Press, 2003.

Lynch, Michael J. and Paul B. Stetsky. “Native Americans, Environmental Harm and Justice.” In Jeffrey Ian Ross, ed., American Indians at Risk, volume 2. Santa Barbara, CA: Greenwood, 2014.

McLachlan, Stéphane M. “Water is a living thing”: environmental and human health implications of the Athabasca Oil Sands for the Mikisew Cree First Nation and Athabasca Chipewyan First Nation in Northern Alberta. Winnipeg: Environmental Conservation Laboratory, University of Manitoba, 2014.

Miles, Andrea S. “Tribal Energy Resource Agreements: Tools For Achieving Energy Development and Tribal Self-Sufficiency or an Abdication of Federal Environmental and Trust Responsibilities?” American Indian Law Review (2005): 461-476.

Regan, Shawn. Unlocking the Wealth of Indian Nations: Overcoming Obstacles to Tribal Energy Development. Bozeman MT: The Property and Environment Research Center, 2014.

Smith, Sherry L. and Brian Frehner, eds. Indians & Energy: Exploitation and Opportunity in the American Southwest. Santa Fe: School for Advanced Research Press, 2010.

 

 

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s