Less well known is the fact that Cushing sits in the Sac and Fox Nation, part of a patchwork of land belonging to Oklahoma’s 38 tribes, each with sovereignty over its own affairs and land.
TransCanada’s plan to dig a trench and bury part of its $7 billion, 1,700-mile Keystone XL pipeline right through this land has unearthed a host of Native American opposition, resentments and ghosts of the past. Winning support in Indian country is one of the last hurdles for the project, which is touted as a key to North American energy security. The question is whether gaining tribal support is a courtesy, as the company puts it, or a legal obligation.
Under Chief Black Hawk, the Sac and Fox tribe, originally from the Great Lakes region, fought bloody skirmishes in the 1800s against other tribes and federal troops. Ultimately, the tribe signed a series of treaties that pushed it to Illinois, then Iowa, then Kansas and finally in the 1870s to the Indian Territory — now known as Oklahoma.
Along the way, many of its members died of smallpox and other hardships.
George Thurman, chairman of the Sac and Fox Nation and a descendent of Black Hawk, is worried that the pipeline could dig up unmarked graves or other sacred archaeological sites even on private lands.
“There are mass graves where people were buried after dying of smallpox,” Thurman said over lunch at Rudolpho’s Mexican Restaurant in a strip mall on Cushing’s East Main Street. “There could be another buried out there.”
His aide for cultural and historic preservation, Sandra Massey, added: “How many times do we have to move? Our dead are never at rest.”
Nothing is clear-cut about the web of laws regarding Native Americans.
“There is no legal obligation to work with the tribes,” said Lou Thompson, TransCanada’s top liaison with Native Americans. “We do it because we have a policy. We believe it’s a good, neighborly thing to do.” He said the pipeline “is not passing through any tribal lands.”
But many Native Americans in the United States — and their lawyers — insist that there are legal obligations under 19th-century treaties that affirmed sovereign status of Native American tribes, which do not pay state or federal taxes and which have their own governing councils and police forces.
Moreover, the more recent National Historic Preservation Act and the Native American Graves Protection and Repatriation Act of 1990 both provide for the protection of Indian burial sites and artifacts. “When it comes to jurisdiction, it’s a tough question to answer,” said Jennifer Baker, a Colorado-based lawyer who has worked closely with South Dakota tribes. “History has developed so that legal truths get overshadowed by factual realities, and judges tend to mold the law to reflect factual realities.”