AND DENVER AMERICAN INDIAN COMMISSION PRESENT A CONVERSATION ON

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1 THE INTERNATIONAL INSTITUTE FOR INDIGENOUS RESOURCE MANAGEMENT, REGIS UNIVERSITY SUSTAINABLE ECONOMIC AND ENTERPRISE DEVELOPMENT INSTITUTE, AND DENVER AMERICAN INDIAN COMMISSION PRESENT A CONVERSATION ON PIPELINES AND INDIAN TRIBES: LAW, POLICY, SCIENCE, AND TECHNOLOGY FOR THE LONG HAUL Defining and Achieving Victory in the Long War for Control of Natives, their Identity, Lands, and Resources April 19-20, 2017 Mountain View Room, Claver Hall Regis University A brief introduction to the International Institute for Indigenous Resource Management, the Sustainable Economic and Enterprise Development Institute, and the Denver American Indian Commission. The International Institute for Indigenous Resource Management is a law and policy research institute. Established in Denver, Colorado in 1997, the Institute's cadre of internationally-based legal scholars and researchers work on cutting-edge projects designed to empower native peoples by examining the role the law can play in establishing and enhancing indigenous peoples' control over and management of their lands and resources. Institute teams also study ways indigenous peoples can control the impacts of science and technology on their societies and help build and strengthen native legal, technical, management, and other systems and institutions. The SEED Institute is part of the newly reorganized College of Business and Economics at Regis University. The Institute is engaged in research and teaching that demonstrates the pathway to successful community centered development focused on the triple bottom line. SEED Institute faculty and staff provide creative; cutting edge opportunities for students to become leaders who can re-envision business as usual to confront contemporary challenges wrought by, inter alia, climate change and economic inequality and to pursue opportunities in renewable energy, intermodal transportation systems, the sharing economy and social entrepreneurship. The Denver American Indian Commission works to enhance present and future communications between the Denver American Indian Community and the City and County of Denver, to advocate for social and cultural awareness, and to promote economic and political equality by, among other activities, promoting indigenous perspectives on a wide range of cultural, social, economic, political, and other issues throughout the Denver area. The Dakota Access Pipeline Project The Dakota Access Pipeline Project is a new approximate 1,172-mile, 30-inch diameter pipeline that will connect the rapidly expanding Bakken and Three Forks production areas in North Dakota to Patoka, Illinois. The pipeline will enable domestically produced light sweet crude oil from North Dakota to reach major refining markets in a more direct, cost-effective, safer and environmentally responsible manner. The pipeline will also reduce the current use of rail and truck transportation to move Bakken crude oil to major U.S. markets to support domestic demand. It will transport approximately 470,000 barrels per day with a capacity as high as 570,000 barrels per day or more which could represent approximately half of Bakken current daily crude oil

2 production. Shippers will be able to access multiple markets, including Midwest and East Coast markets as well as the Gulf Coast via the Nederland, Texas crude oil terminal facility of Sunoco Logistics Partners. The Strategic Environment The Long War. Indigenous peoples of the Americas have been at war since the first Europeans appeared on these shores. The war in the South saw the Inca and Aztec quickly overcome by the Spanish. The European experience in North America was quite different. There the tribes challenged each successive invasion with military and diplomatic skill. In war after war, the tribes and Europeans battled in a precarious balance, adapting each other's technology and tactics and seeking each other out as military and commercial allies. Our sense is that we are now engaged in a war of ideas, a clash of visions, of concepts, and of images, and especially of the interpretation of them. Wars of ideas are, indeed, genuine wars, even though the physical violence might appear to be minimal, because they serve a political, sociocultural, or economic purpose, and they are based on hostile intentions and hostile acts. Such wars are essentially about power and influence, and just as with wars over territory and material resources, their stakes can run very high indeed. And, unlike previous threats manifested by rationally-acting nation states, the war of ideas is not easily deterred nor defeated by the traditional elements of tribal power. Globalization means the nation state and tribes are now challenged by, and embedded within, new constellations of authority and community which transcend the divide between the corporate, domestic, and international spheres. Climate change, water shortages, natural disasters, and the developing world s need for energy will compound already difficult positions in many tribes which may include, aside from escalating demand for tribal resources, increasing the potential for epidemic disease and regionally destabilizing population migrations. Why Plan B? The Dakota Access Pipeline Project is just one of many planned pipelines. Underground Construction s 2016 survey figures of oil and gas pipelines construction indicates 34,027 miles of pipelines are currently planned and under construction in North America. Of these, 21,412 miles represent projects in the engineering and design phase while 12,615 miles are in various stages of construction. Many of these pipelines will affect tribal and First Nation interests. Decarbonizing society will be a long-term proposition. There is one thing all energy transitions have in common: they are prolonged affairs that take decades to accomplish, wrote Vaclav Smil in Indeed, for 109 years after the signing of the Declaration of Independence, wood was the dominant source of energy in America. It wasn t until 1885 the year that Grover Cleveland was first sworn in as president that coal finally surpassed wood as the largest source of energy in the United States. Coal remained king until 1950, when it was deposed by oil. And the greater the scale of prevailing uses and conversions, the longer the substitutions will take. Smil, a polymath, prolific author on energy issues, and distinguished professor at the University of Manitoba, believes that while a world without fossil fuel combustion is highly desirable getting there will demand not only high cost but also considerable patience: coming energy transitions will unfold across decades, not years.

3 The conversations surrounding the Dakota Access Pipeline Project have generally about oil as fuel. Typically most people don t think too much about petrochemicals, but few of us could do without them. They are essential ingredients for many products we use every day. Petrochemicals are important components in carpet, baby bottles, TVs, detergents, smart phones, paint, computers, shoes and many other household items. Between 1971 and 2004, the demand for energy and raw materials for the chemical & petrochemical industry doubled. The process to make them is costly, energy intensive, and very hard on the environment. In fact, the chemical and petrochemical industry is the heaviest industrial user of energy, accounting for more than 30% of total industry usage worldwide. Preparing for Plan B. The power to influence the permitting or the construction of a pipeline is generally exercised by a widely dispersed network of agents mediating the decisions of legal, technical, scientific, financial, and other experts. These agents can include attorneys and consultants retained by governmental agencies, corporations and public interests groups and environmental organizations. To that extent many people have some power in relation to others, even though they lack the absolute power to decide policies or results. However, the institutional context is not limited to agents. It includes also, any structures or practices, the rules and norms that guide them, and the language and symbols that mediate social interactions within them. Agencies and educational institutions must also acknowledge that for the impoverished and disempowered the inequalities in ability to shape institutional or societal decision making can be as important as inequalities in the exercise of police powers, health, income, and education. In the main, Indian tribes are not numbered among the agents or among the legal, technical, and scientific experts. Indian tribes are similarly not engaged in institutional structures such as the National Academy of Sciences, professional organizations such as the Pipeline Research Council International, or industry associations such as the American Petroleum Institute. To protect or tribal interests implicated by pipeline construction and operations, I ve argued that tribes first need to be aware of the myriad ways their interests can be affected and, to the greatest extent practicable, insinuate a tribal presence in relevant conversations as early as possible. The problem is that these conversations are temporally and geographically remote and, in general, are simply not recognized by either the network of agents or by institutional structures, and indeed, by the tribes themselves, as having any connection with tribal lands, resources, and other interests. Herein lies the problem: How do Indian tribes develop the human capital, the financial resources, and access to the network of agents and institutional structures that will allow them to engage in the conversations to protect or advance their economic, political, environmental, cultural, social, and other interests that will be affected by all facets of pipeline construction and operation? Some questions to be considered at the roundtable include, but are not limited to: At what point in the life cycle of pipeline projects should project proponents consult indigenous peoples? Who's responsible for building the capacity of Indian tribes to engage in informed scientific, technological, economic, legal, and other consultation? What responsibilities do federal agencies such as the Pipeline and Hazardous Materials Safety Administration, Federal Energy Regulatory Commission, and Environmental Protection Agency

4 to ensure conformance with the UN Declaration on the Rights of Indigenous Peoples and its requirement for free, prior, and informed consent? What systems and institutions do native peoples require to engage in the conversations to protect or advance their economic, political, environmental, cultural, social, and other interests? Roundtable Agenda April 19, :30 a.m. Coffee and registration 9:00 a.m. Introductions. 9:30 a.m. First discussion: A brief history of the ambivalent relationship between Indian tribes and pipelines. What has been good, bad, and indifferent about the relationship between Indian tribes and pipelines? The Southern Ute Tribe extracts natural gas from the ample tribal reserves. The Tribe expects further development of oil and gas resources. Development of oil and gas resources generally involves drilling wells, constructing access roads, installing pipelines, and building compression and treatment facilities. Like the Southern Ute Tribe the Navajo Nation owns and operates oil and natural gas interests through its wholly owned Navajo Nation Oil & Gas Company and operates the Running Horse Pipeline in southeast Utah and northwest New Mexico. Moreover, the Navajo Nation generally was actively involved in non-tribal pipeline rightof-way approval process from an early date. However, active participation in pipeline right-of-way negotiations does not immunize tribes from the untoward effects of oil and gas operations. For example, for decades the Environmental Protection Agency has been monitoring an underground brine leak exceeding 40 million gallons on the Fort Peck Indian Reservation in Montana that polluted a river, private wells and the municipal water system in Poplar. What other examples of tribe-pipeline relations are instructive? 10:45 a.m. Break 11:15 a.m. First discussion continues. 12:30 p.m. Lunch 1:30 p.m. Second Discussion: The life cycle of pipelines and its impact on tribal interests. The beginnings of pipeline life cycles occur in different places and at different times depending on the particular interests of the parties involved. In general, for the pipeline operator, the life cycle begins with project planning and proceeds through licensing/permitting (including hearings), construction, operation, and terminates in abandonment. To protect and advance tribal interests affected by pipelines we think this is too narrow a definition. This discussion seeks first to identify the agencies, institutions, and associations involved in framing the pipeline life cycle; second, to examine how their activities can affect tribal interests; and third, to identify means by which tribes and their representatives can participate in these activities and to

5 April 20, 2017 otherwise influence the decision making of these agencies, institutions, and associations. 08:00 a.m. Coffee and registration 8:30 a.m. Third Discussion: Developing and deploying the human capital, systems, and institutions to protect and advance tribal interests in pipelines. In its heyday, the Council of Energy Resource Tribes employed lawyers, petroleum engineers, economists, geologists, and a host of other technical experts who worked with the member tribes of CERT to develop and manage their energy resources according to tribal environmental, cultural, economic, political, and other priorities. CERT is no more and no institution has stepped in to fill that void. Tribes such as the Southern Ute Indian Tribe who have built thriving economies can afford to hire such technical expertise. How can tribes, not similarly situated, develop and deploy the human capital to protect and advance their interests? What role can tribal, state, and private colleges and universities play and how do tribes collaborate with these institutions? What about the private and NGO sectors? 11:00 a.m. Break 11:20 a.m. Fourth Discussion: What s next? 12:30 p.m. Roundtable ends. Participation at the roundtable is by invitation although observers are welcomed. In either instance, please let Merv Tano of the International Institute for Indigenous Resource Management know if you ll be attending the roundtable by mervtano@iiirm.org or by phone: