Cultural survey at heart of pipeline challenge
NEAR CANNON BALL, N.D. — The confluence of the Missouri and Cannonball rivers is considered so sacred to tribal communities that enemy tribes once camped within view of each other but remained peaceful because of their reverence for the water and the land.
That's how the Standing Rock Sioux Tribe describes the area where the U.S. Army Corps of Engineers issued a permit for the Dakota Access Pipeline to cross the Missouri River.
The tribe will make its case in Washington, D.C., on Wednesday that the corps failed to consider the historical and cultural significance of that area, seeking a federal judge to intervene and issue an injunction.
The tribe argues that the cultural resource survey of the area was deficient and didn't involve proper tribal participation. Two North Dakota historians agree and say there are glaring omissions in the cultural resource inventory that was considered in the regulatory approvals for the pipeline.
The Army Corps counters in court documents that it had hundreds of communications with the tribe, and Dakota Access says the tribe has not pointed to a specific example of a cultural resource that would be harmed by the pipeline construction.
The State Historical Society of North Dakota concurred with findings of archaeological firms hired by Dakota Access that no significant sites would be affected by the pipeline construction.
The review of the pipeline route was extensive and took three field seasons to complete, said Susan Quinnell, review and compliance coordinator for the historical society. The pipeline traverses 1,172 miles in four states, including about 350 miles in North Dakota.
"We made Dakota Access survey every single inch of that pipeline route, and that did not happen with the other state reviews as far as I know," Quinnell said.
Survey 'utterly meaningless' without context
Tom Isern, a North Dakota State University history professor and director for the Center for Heritage Renewal, said the state's guidelines for conducting cultural resource inventories require consultants to not only do on-the-ground surveys, but also consult historical texts and conduct interviews to guide their work.
Isern, who has reviewed the Morton County portion of the cultural resource survey, as well as the Corps of Engineers Environmental Assessment, said he can find no evidence that the consultants reviewed historical literature about the Missouri River.
"The on-the-ground work is utterly meaningless if it's not guided by the textual and the in-person sources," Isern told Forum News Service. "You can do pedestrian surveys, but you'll miss everything. That's just shotgunning."
Historian Dakota Goodhouse, a member of the Standing Rock Sioux Tribe, said the out-of-state firms hired by Dakota Access failed to mention reviewing significant areas such as two Mandan villages that were once on the south and north banks of the Cannonball River.
Goodhouse said in-state archeological firms likely would have been more familiar with the history of the area.
Isern, in a blog post he wrote on the subject, questions whether archaeologists hired by a pipeline company would be motivated to consult other sources.
"Historical sources tell you where to concentrate your survey efforts, so that you actually find stuff," Isern wrote. "Maybe that's the problem here. If you want to find stuff, you consult the sources. If you don't want to find stuff, don't look at the sources."
The archaeologists who conducted the survey did not return calls from Forum News Service seeking comment.
The Advisory Council on Historic Preservation, a federal agency established by the National Historic Preservation Act, also disagrees with the Army Corps. In a May 2016 letter, the agency told the corps its findings were "premature, based on an incomplete identification method" without tribal consultation.
Jo-Ellen Darcy, assistant Secretary of the Army, responded to the federal agency that the corps carried out "extensive efforts" to consult with tribes.
"The Corps has made a reasonable and good faith effort to identify historic properties that would potentially be affected by the proposed undertakings," Darcy wrote in a July letter.
'Poses no threat'
A key issue in the federal court case is whether the environmental assessment looked too narrowly at the impacts of pipeline construction at the horizontal directional drilling site only, said Jan Hasselman, an attorney for nonprofit environmental law firm Earthjustice that is representing the tribe.
Dakota Access argues in court documents that the pipeline construction "poses no real threat" to the Missouri River because the directional drilling technique is well-tested, environmentally sound and will place the pipeline at least 90 feet below the riverbed.
In addition, Dakota Access says "extraordinary precautions" have been taken by the corps and the pipeline company to ensure that no sensitive cultural resources are damaged. If sensitive resources are encountered during construction, the company has an unanticipated discovery plan in place with regulators that guides how to address them.
Dakota Access points out in court records that the pipeline is on private land on both sides of the water crossing.
However, the tribe points out in court records that the reservation established in the 1851 Treaty of Fort Laramie included extensive lands that would be crossed by the pipeline.
"In 1889, Congress stripped large portions of the Great Sioux Reservation that had been promised to the tribe forever, leaving nine much smaller Sioux reservations, including Standing Rock," the tribe states in records.
Jon Eagle Sr., tribal historic preservation officer for the Standing Rock Sioux Tribe, writes in a court affidavit that he's charged with protecting cultural resources and sacred sites within the aboriginal homelands of the tribe.
"Every time a site of religious and cultural significance to the tribes is destroyed, this causes irreparable harm to me, my children, grandchildren and those not yet born," Eagle wrote. "Once it is gone, it is gone forever."