The Ponca Tribe of Nebraska and the Yankton Sioux Tribe of South Dakota are among dozens of individuals and entities given permission to testify about the Keystone XL pipeline’s route through the state during public hearings this summer.
“We belong to the land; it doesn’t belong to us,” declared Ponca tribal chairman Larry Wright Jr. after the tribe was granted official intervener status in upcoming hearings before the Nebraska Public Service Commission (PSC). “Although we may not physically own the geographic location that is our homeland in Nebraska, it does not diminish our ties to it.”
Wright was responding to comments in the PSC’s March 31, 2017, order recognizing the tribe’s petition as a formal intervener in the Commission’s review of the proposed Keystone XL pipeline. Public intervener public hearings are scheduled for August 7–11 at the Marriot Cornhusker Hotel in Lincoln, Nebraska. Comments about the KXL pipeline can also be registered online with the Nebraska Public Service Commission.
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Tim Schram, hearing officer with the PSC and the author of the order, wrote in his findings and opinion that neither the Ponca nor the Yankton Sioux tribes have legal property interest in land encompassing the pipeline route. He noted, however, that the requirements of Nebraska’s Siting Act requires the Commission to consider evidence of the social impacts of the route.
According to the Siting Act, the PSC has narrow authority to review the proposed pipeline route in order to determine whether it is in the public interest but expressly prohibits any evaluation of safety considerations, including the risk of spills or leaks.
The PSC’s review does, however, include the environmental impact of the pipeline’s route and may, according to the Siting Act, consider an environmental impact study, distance to groundwater survey, and evidence regarding the impact of the pipeline on wildlife and plants.
If the application is denied, Keystone XL could amend it to address the PSC’s findings and resubmit within 60 days.
President Donald Trump approved the contentious Keystone XL pipeline project, rejected by President Barrack Obama in 2015, in a series of executive orders and presidential memoranda in January 2017. Subsequently TransCanada Corporation, owners of the project, submitted a new application to construct the 1,700-mile pipeline from Alberta to refineries in Texas on the Gulf of Mexico. The route of the $8 billion pipeline runs 275.2 miles through Nebraska. Although Trump issued a presidential permit for the pipeline in March, Keystone XL must gain PSC approval in Nebraska before going forward with construction and using eminent domain to force easements from individual landowners in the state.
The pipeline carrier has the burden to establish that the pipeline would serve the public interest, according to PSC statements. Several individuals and organizations, however, think that the pipeline creates too great a risk to the environment to be considered a service to the public’s interest and have registered as interveners with the PSC.
Schram told the Journal Star that the interveners fall into three groups: unions with economic interests, tribes with social and cultural interests, and 40 or more individuals and groups with environmental and natural resources interests, in addition to 93 landowners.
The Commission has 210 days from receipt of a pipeline construction application to enter an order approving or denying the application but allows an additional five months for just cause, according to the PSC.
In order to be included in the review process, which allows interveners to file legal briefs, cross-examine witnesses and present formal arguments, petitioners for intervention must demonstrate that their legal rights, duties, privileges or other legal interests may be affected by the project. Persons granted formal intervention status become full legal parties to the proceeding, according to Schram’s order.
Interveners can represent themselves but typically are represented by an attorney who conducts discovery files and responds to motions, makes legal oral arguments in front of the Commission, prepares discovery, files and responds to motions represents most formal interveners.
The PSC will likely schedule additional public meetings along the pipeline route. Dates, times and places have not yet been determined.
Keystone XL attorneys filed a motion opposing extending formal intervener status to the Ponca and Yankton Sioux tribes as well as Nebraska Bold Alliance and the Sierra Club.
In the motion, Keystone XL attorneys claim that tribes fail to identify any interest that may be substantially affected by pipeline construction. They maintain that tribes will neither lose nor gain any legal effect as a result of the pipeline’s construction and characterize tribal interests as remote and conjectural.
“Tribes’ claims make much of the fact that the route will cross ancestral territory but neither tribe articulates how these extraordinarily broad statements of alleged interest will be affected,” the company stated in its motion.
The Ponca tribe’s historical interaction with the federal court system and government, however, is the poignant epitome of poor dealings between tribes and the U.S.
Ignoring treaties signed with the tribe, whose homeland is in Nebraska, the U.S. ceded their land to other interests in 1868 and removed them to Oklahoma. Nearly one third of the tribe died en route there, and during those first years in Oklahoma. Ponca Chief Standing Bear’s only son, one of those who died along the journey, begged his father to promise that his bones be buried in the tribe’s Nebraska homeland. Standing Bear was arrested when he and about 30 followers returned to Nebraska to keep his promise.
“Standing Bear’s arrest and trial led to a landmark decision in federal Indian jurisprudence,” the Oklahoma Historical Society says in its archives. “The court ruled in Standing Bear v. Crook (1879) that Indians were recognized as persons under the Fourteenth Amendment and therefore could sue for their rights. The decision split the tribe into northern and southern bands, as Standing Bear’s followers were allowed to remain in Nebraska.”
This trial was reenacted this past weekend before the Nebraska Supreme Court, according to an account in the Journal Star.
Their standing with the U.S. government, however, was not to last. In 1966, the Ponca tribe of Nebraska was terminated under federal policy. After considerable work on the part of members and elders, the Ponca tribe of Nebraska again gained federal recognition in 1990—but only after agreeing that they would not maintain a contiguous area of land for a reservation, according to Wright. Thus tribal members living in 12 counties in Nebraska, two in Iowa and two in South Dakota, have the same rights as tribes with physical reservations.
“We use this story to demonstrate our connection to the land here in Nebraska,” Wright said. “This shows how much our people our willing to go through to maintain that.”
Although Wright questions the weight that that the PSC will give to tribal claims about the impact of the pipeline’s path through land that they hold sacred, he said the tribe is exploring all avenues to make the government and public aware of their concerns and is working with other tribes and organizations that oppose the pipeline.
“This is the venue that is open to us to state our case,” he said.
He further noted that the Ponca fully empathize with landowners along the pipeline route who will lose their lands due to eminent domain.
“We are painfully aware of what is like to have your land stolen,” he said.
“I’m happy we have a foot in the door for citizens, landowners and Native allies to make our case why Keystone XL—a foreign-export pipeline—does not meet the public interest, which is the standard for them to meet,” said Jane Kleeb, founder of Bold Alliance, an organization opposing the pipeline, to the Journal Star. Bold Alliance grew out of Bold Nebraska, the Keystone XL opposition group that Kleeb originally founded, and which is planning numerous actions to oppose Keystone XL.
“We saw how the country and the world responded to Standing Rock. We will use that as our model. Our water is our water is our water, and our land is sacred to us; it where our medicines grow. It is where our people are buried,” Wright said. “We will stand arm in arm with other tribal nations, land owners and other groups opposing the pipeline. When, not if, the pipeline breaks and leaks into our water and ruins our land, everybody in Nebraska will find that they can’t drink oil.”