Exploring the Negative Impacts of Fracking Policies on Native American Lands and Communities
by Shelley Palmer
Tribal lands in the United States are rich with mineral resources such as oil and gas1, but the management and conservation of these lands can be complicated due to federal involvement1-10, pollution10, and cultural preservation issues1,9. Federal agencies, such as the Bureau of Indian Affairs (BIA) and the Bureau of Land Management (BLM), regulate many resources on reservation lands, sometimes limiting tribes’ abilities to use their resources as they wish1-10. Federal acts, including the Indian Mineral Leasing Act of 1938 and the Indian Self-Determination and Education Assistance Act of 1975, further restrict Native Americans’ rights to the resources on their lands1. These resources can also be difficult to access without damaging lands important to the cultural history of Native Americans1,9. Pollution from fracking can create environmental and health consequences that disproportionately affect American Indians10. This paper argues that both constitutional principles and principles of basic fairness support Native Americans’ right to increased sovereignty regarding the resources on their lands. To assist tribal governments and Native communities in securing control over their resources, it may be beneficial to conduct more archeological inventories on their lands, to perform more studies on the community health impacts of fracking, and to provide more media coverage discussing fracking on Native American lands.
native, fracking, oil, gas, tribal, sovereignty
Native American lands contain the third highest quantity of mineral resources in the United States, including 3–4% of the country’s known oil and gas reserves1. However, the federal government maintains significant control over the resources found on these lands due to a mixture of Native and federal control2. This paper analyzes the complex relationship between federal agencies and Native American tribal nations, investigates case studies revealing a loss of Native American cultural resources due to fracking, discusses pollution issues caused by fracking on Native American lands, and examines how legislation and constitutional rights play a role in the governance of tribal lands. I argue that recognizing and supporting tribal sovereignty over tribal lands is important for conserving cultural resources and spiritual lands, as well as for protecting the health of the Native populations living on these lands.
Management of Oil & Gas Resources on Tribal Lands
Native American reservations contain a mix of property classes, including lands held in trust for Native Americans by the federal government, fee-simple lands owned by tribal governments or organizations, fee-simple lands owned by individual Native Americans, and fee-simple lands owned by non-Native Americans2. Because trust lands are controlled by the federal government, they are subject to a complex mix of federal and tribal input2. For instance, the Indian Mineral Leasing Act of 1938 requires tribal consent and approval from the Secretary of the Interior to establish mineral leases on tribal trust lands1.
Generally, tribes have three principal options to manage oil and gas resources on their lands1. First, they can extract fossil fuels through tribal energy corporations1. Second, they can self-govern with funds from the Indian Self-Determination and Education Assistance Act of 1975, which allows tribes to enter self-governance contracts and receive government funding to take over federal administration of fossil fuel reserves under the Act’s “638 Program.”1 Finally, and most commonly, they can lease their lands to private companies1. Although tribal land can only be leased by tribal governments with approval from the Bureau of Indian Affairs (BIA)3, the Bureau of Land Management (BLM) uses its seven Onshore Oil and Gas Orders, created between 1983 and 1993, to regulate 56 million acres of below-ground resources on Native American lands4. These orders serve as an example of the control federal agencies hold over tribal resources4. Following the 2000s expansion of shale gas development—the production of oil and gas from shale using hydraulic fracking and horizontal drilling—the BLM proposed revisions regarding hydraulic fracking to its Onshore Orders4. The final 2016 revisions to Orders 3, 4, and 5 aim to ensure that gas and oil production is accurately measured, reported, and recorded5.
The Relationship between Native Americans and the BIA
Native Americans have had a historically complex and often strained relationship with the BIA, the principal federal agency tasked with managing tribal resources, including trust lands3. Both tribal members and outside observers have criticized the agency for failing to address the needs of Native Americans, and since 1834 there have been over 1,000 investigations, reports, and other considerations for reorganizing the agency3. The BIA has responded to the criticism, and the agency is now staffed overwhelmingly by Native American and Alaska Native members who are more motivated to adequately address tribal needs3.
One instance of conflict between the BIA and Native Americans is demonstrated by Cobell v. Salazar, a class-action lawsuit filed in 1996 and resolved in 2012, in which Native Americans sued the U.S. Department of the Interior—the department under which the BIA exists—and the U.S. Department of the Treasury for mismanaging their trust accounts6. The American Indian Trust Management Act was created in 1994 with the intention of resolving historical mismanagement of trust funds6. However, the Secretary of the Interior failed to comply with the Act’s requirement to provide full annual statements of trust account balances to each account holder6. After decades of mismanagement, the case was settled with the U.S. government owing account holders $3.4 billion6, despite estimates showing account holders were owed $10–40 billion7.
Another instance of the BIA costing tribes time and money occurred in the mid-2000s and 2010s8. The BIA was unable to verify some of the oil and gas resources held by tribes and available for lease, causing it to take up to eight years to review certain energy documents8. This time-consuming process cost tribes around $95 million in potential permit, royalty, and oil and gas related revenue8.
Challenges to Protecting Native American Resources
Although tribes do have the authority to reject mineral development that will harm cultural resources—including artifacts and landscapes—on tribal lands, it is difficult for them to protect cultural resources on culturally significant non-tribal federal lands1. For instance, policies such as the National Environmental Policy Act (NEPA), which requires the federal government to analyze the environmental impacts of large federal projects and respond to public comments, may encourage the protection of cultural resources but do not legally require it1.
Moreover, in many cases, cultural lands have not received a complete archeological inventory, making it impossible to determine the extent of cultural resources that may be lost due to resource exploration and extraction1. For instance, when exploratory drilling and seismic analyses are performed to determine potential drilling locations, damage can occur to cultural resources that may not even be documented1.
Case Studies Demonstrating Government Control Over Native American Resources and Consequent Loss of Cultural Resources
The Dakota Access Pipeline (DAPL) proposal, a plan to carry over half a billion gallons of crude oil 1,200 miles per day from Montana to Illinois, exemplifies the conflict between oil extraction and cultural resources and the power the federal government holds over lands sacred to Indian tribes1,9. The plan utilizes oil reserves on privately held lands in North Dakota and Montana, just outside the Standing Rock Sioux Reservation1. Although few federal permits are required to obtain oil from these private lands, federal permits are required in hundreds of locations where the oil is transported across federal waters1. After the United States Army Corps of Engineers (USACE) approved permitting for the project, the Standing Rock Sioux Tribe argued in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers that the USACE violated NEPA and the National Historic Preservation Act (NHPA) by failing to appropriately acknowledge the potential cultural, spiritual, ecological, and economic damage the pipeline may cause to the Tribe’s sacred lands and waters1. By the time a district court decision was made, the pipeline construction had already begun, and the court ruled in favor of the USACE since construction had already damaged tribal waters and lands and because the Tribe failed to demonstrate how continuing the construction would cause “additional harm” to their cultural resources1. Further, the court determined that the USACE made numerous attempts to consult the Tribe, but the Tribe failed to engage, despite the Tribe’s argument that the USACE failed to adequately address their concerns before approving all construction near their reservation1. In September 2016, the Tribe was granted an emergency motion for a stay to give them time to appeal to the D.C. Circuit Court of Appeals, but the stay was lifted in March 2017, and the pipeline was set to start transporting oil later that month1.
Another instance of oil extraction resulting in the loss of cultural resources occurs in the Greater Chaco Canyon region in Arizona, Utah, Colorado, and New Mexico1. The Greater Chaco Canyon region contains the world’s highest concentration of Puebloan architecture from the 10th and 11th centuries, including difficult-to-access sites built in caves hundreds of feet up vertical cliffs, ceremonial “great houses” 4–5 stories high containing hundreds of rooms, ceremonial kivas—or circular rooms dug out of the ground and covered by a roof—and a network of roads and irrigation systems1. The United States Forest Service (USFS) and BLM are responsible for most of the federal lands in the Greater Chaco Canyon region1. The Mancos Shale play, containing up to 60 billion oil barrels, lies beneath the region1. During the decade leading up to the region’s 1987 United Nations World Heritage Site designation, extensive energy development activities occurred in the region and all of the region’s oil was extracted that could be accessed through conventional oil extraction techniques at the time1. However, the 2003 development of new extraction techniques allowed access to more of the area’s oil reserves1. In the early 2010s, the BLM permitted oil and gas companies to further exploit the region’s oil reserves through hydraulic fracking activities1. Due to increased oil and gas interest in the region, the BLM had to revise its Resource Management Plan (RMP) for the nearby Farmington Area in 20141. The new plan considers the effect of fracking on air and water quality, as well as its effect on paleontological and cultural resources—including the resources contained in previously unknown archeological sites1. However, the USFS and BLM have not yet inventoried all of the region’s archeological sites, partially due to difficulty accessing vertical cliff dwellings and underground sites1. The BLM has approved oil drilling operations across lands that have yet to be inventoried, and legal disputes have failed to stop the drilling1. As a result, important cultural resources and the land’s rich history are almost certain to be lost forever1.
Hazardous Fracking Waste on Native American Lands
Wastewater produced by fracking contains chemical components that may harm human health10. However, current environmental laws exempt oil-drilling companies on Native American lands from disclosing many of the types of chemicals found in fracking wastewater and their associated risks10. Moreover, regulatory loopholes allow untreated wastewater from fracking to be disposed of onto Native American lands, resulting in pollution issues and human health hazards10. In dry regions, wastewater from fracking that is given to livestock or disposed of on land is classified by the Environmental Protection Agency (EPA) as “special waste” that does not fall under the permitting requirements of the Resource Conservation and Recovery Act (RCRA) or the Clean Water Act (CWA)10. Further, RCRA does not allow tribes to create their own water permitting standards, and it is financially difficult for tribes to afford the standards required for regulation under the CWA10. As a result, Native Americans face health hazards due to fracking issues that are not being sufficiently addressed10.
Actions Needed to Protect Native Americans and Their Cultural Resources
The U.S. Constitution guarantees the protection of its citizens’ general welfare, including the welfare of Native Americans. In order to adequately maintain this protection, the government must address the environmental pollution from fracking and the resulting potential health hazards faced by Native Americans. To protect Native Americans’ health and resources, more studies should be conducted on the chemicals found in fracking wastewater and their effects on human health. If a sufficient number of studies show that the chemicals in untreated fracking wastewater are indeed harmful, tribes may be able to use the rights guaranteed by the Constitution and included in treaty language to protect Native Americans’ health and lands from wastewater disposal. Further, out of fairness to the Native American community, legislation should be passed requiring lands to be fully inventoried before receiving approval for oil drilling operations. Such legislation would aid in the future protection of culturally significant lands by preventing fracking operations from destroying undiscovered cultural artifacts.
Historically, Native Americans have faced numerous health inequalities, such as shorter lifespans and increased rates of chronic illness, due to social and environmental factors11. For instance, the average Native American community faces lower levels of education and increased poverty, discrimination, and environmental issues11. Additionally, media focusing on Native American health issues is over-representative of illnesses such as diabetes and under-representative of other health issues11. An important step in combatting Native American health inequalities is to acknowledge the historical trauma and oppression faced by Native Americans and to create systems that address these issues and align with Native American traditions11. Increased media coverage of fracking issues, such as wastewater disposal on tribal lands and the damage of cultural lands by DAPL and fracking in the Greater Chaco Canyon region, could be a key factor in creating a healthier environment for Native American communities by combatting historical under-representation of Native American health inequalities. It is important that Native American individuals and communities are given the opportunity to explain their stories, traditions, and problems, and that the general public calls for politicians to respond to Native Americans’ concerns rather than imposing regulations that perpetuate health issues in their community.
The fossil fuel reserves contained within tribal lands and the surrounding areas present lucrative extraction opportunities that have historically cost tribes important cultural resources and will continue to destroy historical artifacts and important lands and waters as long as Native Americans lack full sovereignty over their resources. Moreover, the health consequences resulting from fracking disproportionately impact Native American communities11. The BIA, the BLM, and lawsuits addressing fracking damage on tribal lands have failed to adequately protect Native Americans’ cultural resources, costing tribes time, money, and irreplaceable lands and resources1,3-9. In order to protect Native American individuals’ constitutional rights to health and well-being, tribal governments should be granted sovereignty over their lands and increased authority over the surrounding lands that directly impact their community. To help tribes gain power over culturally significant lands, it is important that more archeological inventories and more studies surrounding the health impacts of fracking are conducted to provide information that can help protect Native Americans during litigation. It is also important that more media coverage focuses on Native American fracking issues to advocate for protective legislation that will benefit, rather than hinder, the protection of tribal resources.
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I would like to thank Dr. Jesse Abrams, Assistant Professor of Natural Resource Policy and Sustainability at the University of Georgia, and Jake Knox, Writing Instructor at the UGA Warnell School of Forestry & Natural Resources, for reviewing this paper and providing support throughout the editing process.
Citation Style: Nature