By Valerie Volcovici
WASHINGTON, Sept 22 The leaders of hundreds of
Native American tribes will meet with President Barack Obama at
his eighth and final Tribal Nations Conference at the White
House next week, while thousands of activists are encamped on
the North Dakota prairie protesting a $3.7 billion oil pipeline.
The conference, designed to improve the relationship between
Washington and the tribes, offers the last chance for this
administration to hear from tribal leaders about the
shortcomings of the current consultation system, which has been
a source of conflict over the pipeline and other projects.
Federal agencies take different approaches to consulting
with the tribes.
Obama, who will leave office in January, likely wants to do
what he can before his term ends to fix the consultation system.
The North Dakota encampment represents the largest Native
American protest in decades.
Along with environmentalists, the tribes say the 1,100-mile
(1,886-km) Dakota Access pipeline, being developed by Energy
Transfer Partners LP, would threaten the water supply
and sacred sites of the Standing Rock Sioux.
The administration stepped in unexpectedly on Sept. 9 to
temporarily block construction of the pipeline and called for "a
serious discussion" about how the tribes are consulted by the
government in decisions on major infrastructure projects.
"There are going to be hundreds of tribes interested in this
consultation process. It will not be easy logistically,
politically or substantively," said Gabe Galanda, an attorney in
Seattle who represents tribal governments.
At present, the Army Corps of Engineers, which manages many
infrastructure projects for the government, takes one approach
to consulting Native American tribes. The Interior Department
and its Bureau of Indian Affairs take another. Laws overlap.
The result can be confusion and sometimes anger, as with
Dakota Access, said Bryan Newland, a lawyer and former adviser
to the assistant secretary for Indian Affairs at the Interior
Department until 2012.
A goal of the upcoming discussions will likely be simply to
clarify what is meant by "consultation."
The Interior Department and Bureau of Indian Affairs tend to
hold face-to-face bilateral meetings with tribal leaders. The
Corps often is accused of "checking marks on a checklist and
moving on with what the developer intends to do," said Galanda.
Ron His Horse is Thunder, spokesman for the Standing Rock
Sioux, said: "There's an issue between what the Corps believes
is consultation and what the tribe believes is consultation."
Before the Dakota Access protest erupted, tribe members
voiced specific concerns with the government about the proximity
of the pipeline to sacred burial sites, but these concerns were
ignored, according to His Horse is Thunder.
But Amy Gaskill, public affairs chief for the Corps'
northwest division, said the tribe canceled several scheduled
meetings. This was documented in a judge's decision to reject
the tribe's request for an injunction, she said.
"We redoubled our efforts to work with the tribe to make
sure their voice was heard in the process," Gaskill said.
Energy Transfer Partners said last week it remained
committed to the pipeline project, which had been slated to
begin carrying oil south from the Bakken shale field by the end
Sixteen years ago, President Bill Clinton issued an
executive order requiring agencies to consult with Native
Americans on matters affecting them. Obama in 2009 issued a memo
intended to strengthen consultations with the tribes.
But doing that requires constant attention, said David
Hayes, a former deputy secretary of the Interior under Clinton
and Obama. "It is the kind of thing that requires diligence in
terms of federal officials ensuring they are not simply treating
tribes like any other stakeholder," Hayes said.
Some agencies do not treat the tribes as sovereign nations,
as they should under law, said Wizipan Garriott Little Elk, a
former Department of Interior official.
"So often you see the agency request the consultation with
the president of a tribal nation, but the agency will send a
low-level bureaucrat to the meeting and simply check off the
consultation box," Garriott said.
The Corps also weighs a narrower geographic scope for
projects than other agencies, so it can overlook impacts outside
the immediate range of a reservation, Newland said.
Talks between tribal leaders and the administration are
likely to expose a consultation system that makes tribes feel
disadvantaged, said Emily Mallen, a lawyer with Van Ness Feldman
specializing in pipelines.
"It is unknown how the federal government might seek to
resolve this issue. The only thing that is sure is that the
tribal consultation process will likely see significant changes
as a result," she said.
(Additional reporting by Ruthy Munoz in Washington; Editing by
Kevin Drawbaugh and Matthew Lewis)