Yankton Sioux Tribe Unconstitutionally Denied Due Process & Equal Protection Rights at Nebraska PSC Hearing on KXL Pipeline

Yankton Sioux Tribe Business & Claims members Greg Cournoyer, Jason Cooke and Attorney Jennifer Baker

Published August 11, 2017

LINCOLN, NEBRAKA – The Yankton Sioux Tribe is outraged and flabbergasted at the restrictions placed on its sovereign rights in the Nebraska Public Service Commission Keystone XL (“KXL”) pipeline siting hearing.

The scope of the Tribe’s participation was limited to the areas of cultural resource and social issues, with no opportunity to present evidence about any other threats posed by the proposed KXL pipeline; the Tribe was permitted just one witness to address its broad array of concerns; and only one hour of cross examination was allowed for the two tribes participating in the proceeding – an hour which the tribes were forced to share.  Furthermore, the Tribe was prohibited from cross examining the witness for the Ponca Tribe of Nebraska due to what the Hearing Officer perceived as overlapping interests.  Despite repeated objections and the obvious due process and equal protection violations, the Hearing Officer refused to budge from these limitations.

Attorney Jennifer Baker and Faith Spotted Eagle defending tribal land at Nemaha reserve and treaty/inherent rights and cultural resources at Nebraska hearings. Testimony was limited to cultural resources.

It is clear that the Nebraska process has a limited understanding of the role and importance of historic preservation and environmental laws that were created to monitor these kinds of developments.  While compliance with historic preservation and environmental laws may fall under the federal purview, it is the interest of Nebraskans (the standard for approval of the pipeline route) that these laws be complied with – which has not occurred.  In addition, federal agencies and developers, through their attorneys and employees, have learned to manipulate the system to gut its effectiveness. There is minimal, if any, effort by federal agencies to engage in “meaningful consultation” as mandated by executive order.

Over the course of the hearing, every TransCanada witness was allowed to play “hide the ball” and avoid responding to queries from opposing lawyers by claiming they were not experts in those areas, thus ultimately dodging the issues and leaving crucial questions unanswered.  TransCanada’s witnesses also repeatedly employed the tactic of “passing the buck” to individuals not present at the hearing, and thus unavailable for the pipeline opponents to question.  At the same time, because the Ponca Tribe and the Yankton Sioux were limited to just one witness each, the tribes had no opportunity to present all of their experts who would have gladly testified regarding their diverse areas of expertise.

Yankton Tribal elected leader Jason Cooke, the witness for the Yankton Sioux Tribe, spoke to the importance of the usufructuary rights of the Yankton/Ihanktonwan at the Nemaha Reserve, owned jointly by the Yankton and four other tribes in southeastern Nebraska and thus qualifying the Tribe as a Nebraska landowner in the vicinity of the pipeline route. Yankton Treaty Chair, Faith Spotted Eagle, was present to identify cultural sites in the Keya Paha Valley in 2012 out of concern for their preservation on the Bob Allpress Ranch.  She stated that the government takes the position that tribal members are “ungrievable” and not allowed to express grief or even concern at the location of burial areas, an issue intervenor landowner Mr. Allpress touched upon in his testimony.  It was for these very concerns that the Yankton created the International Treaty to Protect the Sacred against KXL and Tarsands in January of 2013, in alliance with the Ponca, the Pawnee, the Oglala, and the local farmers/landowners.  At this gathering at Ft. Randall, the Yankton resurrected the “Cowboy and Indian Alliance,” fondly referred to as the “CIA.”

Legal clauses in the National Environmental Policy Act support compliance with the American Indian Religious Freedom Act, which also implicates the U.S. Constitution’s First Amendment.  The Tribe is gravely concerned that vital protections afforded by these laws have been or will be violated through construction and operation of the proposed pipeline.  During the hearing, Tribal Attorney Jennifer Baker spoke to the Supremacy Clause contained in Article VI of the U.S. Constitution, which states that treaties are “the supreme law of the land,” and which would be violated by the federally-sanctioned trespass of the pipeline through the Tribe’s treaty lands.  Violations of the Constitution and other federal laws cannot be in the interest of Nebraskans, nor can the Public Service Commission’s endorsement of such violations.

Although the intent of the Commission was to limit the scope of the involvement of the Yankton/Ihanktonwan, the Tribe believes that cultural resources cover a wide swath of topics, including water, natural resources, burial areas, ceremony and village sites, and gathering areas still important to contemporary times.  The Tribe repeatedly stressed that the full length of the proposed pipeline route did not receive the trained eye of Indigenous knowledge, a necessity to proper identification of these cherished resources.

Tribal leadership questions what kind of pipeline public process can be in Nebraskans’ best interest when it denies the public and tribes the opportunity to talk about safety.  As a government, it must look out for the safety of its citizens.  While cultural concerns are important, the tribal government is charged with significantly more responsibility than the Commission was willing to recognize.   In addition, while the legislation establishing the siting process prohibits the Commission from considering “safety” issues relating to spills and leaks, this restriction has been misconstrued to preclude testimony about the cultural impacts of spills and leaks. 

“The arguments and objections in an extremely legal structured process have lost sight of why the hearing is being held.  The review systems have become so complicated and burdened with biased legal interpretations that the some of the most important issues cannot even be discussed,” stated Cooke.

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  1. Michael E. Hamper 11 months ago