RAPID CITY— When New Mexico Congresswoman Deb Haaland was tapped as President-elect Biden’s new Secretary of the Interior, most of Indian Country responded with celebratory praise, and little print was devoted to the nuts-and-bolts reality facing Haaland in a cabinet position historically averse to tribal interest. Now, the first opportunity presents itself for the Biden Administration to undo an unprecedented negative action from the lame duck Trump Administration.
The massive 1.5 million-acre Converse County, Wyoming, energy operation has been given what many tribes argue is an underhanded green light. On December 23, 2020, Secretary of the Interior David Barnhardt signed a Record of Decision (ROD) giving five energy companies the go-ahead to work their extraction operations. This gives tribes less than thirty days to file a protest.
On August 31, 2020, the Oglala Sioux Tribe (OST) had already submitted a comprehensive 34-page protest (not including 66 pages of exhibits and maps) addressed to the Bureau of Land Management’s (BLM) Protest Coordinator objecting to the incomplete and inadequate consultation process up to that point. The protest detailed tribal concerns about environmental impact and threats to sacred sites. Fracking could contaminate the Converse County watershed, which flows directly eastward into Lakota Country, and the prevailing Chinook winds blow open air contaminates released by Wyoming energy operations over South Dakota as well.
Although the protest directed BLM to address their response to the OST Tribal Secretary, there is no specific procedural policy directing BLM to do so, and so BLM ungraciously buried the response letter in the middle of their Land Use Planning Protest Resolution Report. The report has no specific date to determine whether it actually pre-dates the December 23 ROD, but is dated as “December 2020.”
According to OST Tribal Attorney Mario Gonzalez the options presently open to the tribe are to send a protest letter or file a civil action against the ROD.
Various media outlets report the ROD as coming from the Bureau of Land Management (BLM) or from Interior Secretary Barnhardt, but the chain-of-command reality dictates the final decision came from the lame duck Trump Administration, meaning President Trump himself. Trump’s energy policy advisor during his successful 2016 presidential campaign was North Dakota Senator Kevin Cramer, no coincidence given the Standing Rock DAPL protest. Cramer has long been the leading intellectual force behind crafting strategies to reduce and ultimately eliminate tribal sovereignty.
The chief beneficiary for such a consequence would be energy companies like the five energy companies currently deeply invested in the Converse County project. Any policy that reduces obstructions to energy resources, up to and including the total elimination of tribal control of such resources, would meet with their approval. Whatever Trump’s personal economic ties to these energy companies, he is unquestionably philosophically and operationally committed to their interests and opposed to any tribal interest, because his previous actions reflect that reality.
Given President-elect Biden had selected New Mexico Congresswoman Deb Haaland, an enrolled member of the Pueblo Tribe, as his new Interior Secretary, Trump had to move on the Converse County ROD before leaving office in January. Had he won reelection, perhaps he would have allowed the process to play out, and responded in good faith to the protest filed by OST on August 31. Good faith response is mandated by Article II, Section 3, of the US Constitution, which clearly states a president “shall take Care that the Laws be faithfully executed…”
What is little known is how precarious the tribal response to the threat of Converse County energy extraction was. Despite plenty of forewarning from BLM, tribes were not challenging the Converse County time table, they were not protecting tribal resources and interests thereby threatened. Leon Gonzalez, the son of OST tribal attorney Mario Gonzalez, was visiting the website of his wife’s Shoshone tribe and saw that the time was running out to challenge a BLM ruling. He notified his father who notified OST. Had this not happened, there would have been no need for the Barnhardt ROD because the five energy companies would already be operating full bore. The tribes would have collectively and utterly dropped the ball.
History repeated itself, when again, the tribes failed to realize Barnhardt had signed the ROD on December 23, 2020, the task once again falling on Mario Gonzalez by default to draft a tribal response in the next couple of weeks.
Fast forward to just days ago, when Standing Rock tribal member Tim Mentz, an expert on sacred sites, and Tribal Historic Preservation Officer (THPO) policy and history, was curious as to why BLM had not directly responded to OST’s August 31 protest letter. Mentz was thinking, “There has to be something somewhere that says that they had addressed the issue of the protest.”
And so he began a painstaking Google search which revealed the BLM’s Land Use Planning Protest Resolution Report, and by scrutinizing this document, Mentz was able to locate the specific section where BLM did post their resolution. Mentz also could find no policy directive mandating that BLM directly inform tribes of their decision, regardless of what a tribe might request in that regard.
In addition, Mentz was unable to locate where the mandated programmatic agreement between tribal interest in environment and sacred sites and BLM resolution was documented and attached. Mentz said, “You cannot have a final EIS (Environmental Impact Statement) without a document that’s attached. When I looked at the final attachments in the EIS there was no programmatic agreement.”
The lack of inter-tribal unity and cooperation is undermining many of the safeguards put in place to ensure just the opposite. An example would be THPO’s (TIP-ohs), Tribal Historic Preservation Officers, created in 1992. Each tribe selects their own THPO, and this THPO is informed by the involved federal department whenever concerns over sacred sites might arise. It follows, given the checkered government history of interaction, tribes should proactively network with other THPO’s and tribal governments, consulting legal and expert resources, to determine where threats to tribal interests might arise. This is seldom done. While the intent was sound to create THPO’s, the practice itself has become highly suspect. Once leading experts on tribal sacred sites like Standing Rock’s Tim Mentz held the position of THPO, but like so many other tribal appointments, the THPO is increasingly becoming somebody’s relative needing a job, instead of a knowledgeable expert proactively protecting sacred sites.
During the Standing Rock protests, another THPO had taken the place of Mentz for the Standing Rock Sioux Tribe. On fifteen consecutive occasions she failed to show up as the tribe’s THPO representative at scheduled meetings and consultations, some tribal, some various federal agencies, including consultations prompted by the energy companies themselves.
Even BLM has recognized the remarkable skill and knowledge Mentz has as an expert on Lakota sacred sites. He was instrumental in even getting THPO’s created in 1992. BLM was so impressed by the presentation Mentz delivered in April, 2018, at Prairie Winds Casino, he was invited back to the BLM regional office to re-present it. Mentz showed where white archaeologists hired by BLM routinely walk over sacred sites his presentation revealed in exquisite detail, not even recognizing the site was there.
“Currently, a white archaeologist says what a site is in the field,” Mentz said, “and the tribal person never challenges that decision when confronted by archaeologists.” Mentz is concerned that THPO’s are not only collecting their THPO salary but contracting out to a white archeology firm and collecting a contracting fee as well. THPO’s, driven by financial self interest, subsequently oppose and even block any attempt to correct this corrupted activity.
THPO’s are one expression of a larger problem tribe’s face when it comes to organizing and participating in the consultation process with an agency like BLM.
At the April, 2018, consultation organized by the Oglala Sioux Tribe, gossip ran rampant across the Pine Ridge Reservation as to the purpose and intent of the consultation. The consultation was called over Converse County, and the threat that energy operation had on the environment and to sacred sites. But reservation gossip determined the meeting was being held to sell the Black Hills and so misinformed protestors showed up with the “Black Hills are not for sale” signs. They went on KILI radio and spread this lie, firing up misled tribal members, including member od tribal government who sat in their office listening to this on the radio. One of them then came to the meeting to emphatically reiterate the Black Hills were not for sale, embarrassing the tribe in front of the BLM representatives who must have been thinking how can these folks not know what this meeting is about?
The actual reason for the consultation— the threat of contamination from energy operations in Wyoming and the probable destruction of irreplaceable sacred tribal sites, got swept under the misinformation carpet, providing once again a textbook example of why romanticized aspirational rhetoric from the uneducated and misinformed is a poor substitute for reality. In this way tribes undermine their ability to combat aggressive and destructive energy policies like that of the Trump Administration. Were an emergency public meeting called again tomorrow at Prairie Winds Casino, to address the December 23 record of decision regarding Converse County, odds are good the same misinformed tribal members would disrupt the meeting protesting the Black Hills are not for sale.
President Obama extended an olive branch to tribes, informing them if they could all get on the same page, he would meet with their representatives concerning the return of the Black Hills. Near the end of 2016, the tribes called a meeting on the Rosebud Reservation, where speaker Elgin Bad Wound stressed the time was running out on the invitation from the Obama Administration, for the entire Oceti Sakowin to get on the same page, and send a delegation to talk with Obama in Washington. Nothing was ever done.
All of the controversy over Converse County will now drop in the lap of Secretary Haaland and test in the first month of the Biden Administration the differences between their actions toward tribes and that of the Trump Administration.
A daunting task awaits the 60-year-old Haaland on a number of pressing fronts pertaining to tribal interest. Her extensive experience as a state party chairman will serve her well in navigating the political minefield required to address and correct this damage. The Bureau of Indian Affairs (BIA) falls within her purview, regardless of who Biden selects to head up the BIA. Many will confuse Haaland’s position of Interior Secretary with BIA Director. When she correctly points out that the BIA Director is the one to formally address most tribal concerns, tribes may feel slighted by one of their own. One of the major areas of tribal concern is the unfair nature of treaty obligated consultation, where various government departments pre-decide consultation outcome before the tribes even offer input. If Haaland hands the ball off on a matter like this to the BIA Director, which is the standard and proper delegation of authority, most tribes could very well balk.
There are Interior Department policies tribes find odious, such as treaty obligated funds, which are chronically underfunded, and it remains to be seen whether Haaland will receive the green light from the White House to rewire that unsatisfactory practice.
Finally, the Interior Department is massive. It has over 70,000 employees and an annual budget of $21 billion. It epitomizes bureaucratic hierarchy. There are 11 departments managed by six assistant secretaries, a Chief Information Officer, a Solicitor, the Inspector General, and a Special Trustee for American Indians. Departments include the BIA, Bureau of Indian Education, Bureau of Land Management, Bureau of Ocean Energy Management, Bureau of Reclamation, Bureau of Safety and Environmental Enforcement, Bureau of Trust Funds Administration, National Park Service, Office of Surface Mining Reclamation and Enforcement, U.S. Fish and Wildlife Service and the U.S. Geological Survey.
Had President-Elect Biden tapped Haaland for Director of BIA or Indian Education that would have been landmark, but he took a giant political and cultural leap by selecting her to head up the entire operation of an Interior Department colloquially deemed “the Department of Everything.”
Since becoming a Congresswoman, Haaland has been highly accessible. Attempts by Native Sun New Today Publisher Tim Giago, to connect Haaland with the man who drafted the original Bradley Bill, Oglala Lakota attorney Mario Gonzalez, in the hopes of pursuing another Bradley Bill to return the Black Hills, met with a positive and immediate response. Haaland’s office was quick to contact Gonzalez. If Haaland retains the same grass roots responsiveness as Interior Secretary, tribes could see an unprecedented era of grievances being heard and addressed to tribal satisfaction.
However, the operational reality for any cabinet secretary is that they serve at the sitting president’s pleasure. Much will depend on how much leeway the Biden Administration will allow Interior Secretary Haaland. That leeway will be spotlighted on center stage right off the bat when Haaland is forced to react to the eleventh hour Trump Administration ROD, regardless of whether the tribal response is a protest or a civil action.
(James Giago Davies is an enrolled member of the Oglala Lakota Tribe. He can be reached at email@example.com)
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