“We will close our reservation borders to Keystone XL. Authorizing Keystone XL is an act of war against our people.”
— Cyril Scott, President, Rosebud Sioux Tribe
“Get off my land!” That injunction, which calls to mind a rifle-wielding homesteader, protecting hearth and home against intruders — is about as American an image as you can think of.
The civil infrastructure behind that image is less storied, but equally consequential. There is scarcely a square inch of North American land whose tenure is not duly recorded and righteously enforced, down to the pickiest easement or lien. Americans believe in land ownership.
A big infrastructure project, such as an oil pipeline — or a highway, or a railroad — must pass through many boundaries, and its legal right to do so must, in every case, be secured, purchased, negotiated — or conquered. There are many layers of irony in the fact that the biggest, most fraught and controversial pipeline project of the new century could be stopped by a band of people in tipis, saying “No further.”
Many people have heard of the Keystone XL pipeline. A fair number have even marched against it. However, readers may not have a clear idea of the overall industrial context; in other words, they might not know how many oil pipelines there are: some 185,000 miles of them, crisscrossing the United States, carrying every kind of crude oil and refined petroleum product. About 55,000 miles of these are “crude oil trunk lines,” of which the Keystone XL represents the large variety. It is planned to be three feet in diameter (the trans-Alaska pipeline is the biggest, with a diameter of four feet). Its daily capacity is projected to be around 830,000 barrels of crude per day.
It’s hard to get your mind around something as huge as oil consumption in the United States. The US currently uses 18.89 million barrels of oil per day; this figure is down from a high of 20.9 million in 2006. That seems like a lot. How can we visualize it? Let’s think of it in terms of tanker trucks: the big semis that pull up to fill tanks at your local gas station. Such a tanker carries about 5,000 gallons, or 895 barrels of gasoline. That means that today’s United States uses 21,106 tankerfuls of oil every day. Each of those trucks is about 60 feet long; if we put them all on a road with an average of three feet of space between them, we’d be looking at 252 miles of semi trucks. And, of course, we don’t consume crude oil, we consume refined petroleum products, which means that the oil has to be transported at least twice. That means that, at a minimum, the US’s daily oil-transportation needs would fill four lanes of the entire length of the New Jersey Turnpike bumper-to-bumper with tank trucks, with a few thousand more waiting on the on-ramps. Tanker trucks, of course, really only make sense for dispensing finished products; most crude oil is moved through pipelines.
If that’s the case, then why is the Keystone project so controversial? Well, to hear its supporters talk, it shouldn’t be. Arguments against it are characterized as no more than treehugging, Obamafied puffery. Oil is oil; it’s the stuff that modern economies run on; demand for oil may fluctuate a little, but over the long term it’s a given. Getting more crude to US refineries, especially from a friendly neighbor country, can only be a good thing. “Global warming” probably isn’t even real. These assumptions describe the political climate that TransCanada faced in building its Keystone pipeline project, most of which, indeed, is already in place, transporting gobs and gobs of oil as we speak. They didn’t expect this final section, connecting Hardisty, Alberta with Steele City, Nebraska via Montana and the Dakotas, to pose a problem.
Oil Sands: the Crudest Crude
When we hear the price of oil reported on the financial news, we often hear it in terms of the a benchmark called “light, sweet crude,” which sounds very nice, sort of like maple syrup. Lightness and sweetness are references to crude oil’s density, and its sulfur content. Light, sweet oil, such as Brent crude from the North Sea, are priced higher, because they demand less refining to yield retail products such as gasoline. The kind of crude oil the Keystone XL pipeline would carry is less like light, sweet maple syrup, more like the kind of gunk you’d scrape off the bottom of a truck. It’s called “oil sands.” (Many call it “tar sands,” which is more descriptive, but Canadian oil people insist that because tar is a human product, “oil sands” is more correct.)
The resource is bitumen, a tar-like substance mixed with sand. Extremely large deposits of the stuff exist in Alberta (there are other large deposits in Venezuela). It is mined in two ways, either by strip mining, for shallow deposits — or, for deeper deposits, by a process similar to fracking, in which steam is forced underground, liquefying the bitumen and pushing it to the surface. In either case, however, mere mining doesn’t elevate the gunk to the status of “crude oil.” It must undergo an energy- and water-intensive pre-refining process to make it valuable enough to bother with refining, and fluid enough to move through a pipeline.
Indeed, in the oil-embargo years of the 1970s, there were proposals to exploit Canada’s oil sand fields, which have long been known to be vast: Canada’s proven oil reserves are second only to Saudi Arabia’s. But because of its many disadvantages, oil sands was not deemed commercially viable at the time. Since then, a few factors have changed: easily-recoverable sources of liquid crude oil have become depleted, raising the average cost of a barrel of crude. Lots of oil is still being brought to market, but more of it is getting there through new technologies such as deep-ocean drilling and hydraulic fracturing. The newfound viability of Canadian tar sands (if it indeed exists) is part of this trend. Additionally, instability in the Middle East, the area that surrounds the world’s largest petroleum reserves, makes North American sources that much more attractive.
Nevertheless, the delivery of tar sands oil is anything but a light, sweet process. Surface mining operations thus far have dug up huge areas of hitherto pristine boreal forest and marshland; some four tons of earth must be moved to create a single barrel of oil. Furthermore, separating bitumen from its sand matrix consumes between two and four barrels of water per barrel of oil. It actually uses more water than that, but some is recycled. The used water, however, is laced with toxic chemicals and cannot be placed back into the environment, but is held indefinitely in huge “tailings ponds,” two of which are visible from space to the naked eye. The process also uses lots of energy. The strip-mining operations use the world’s largest electric shovels, loading 100 tons per scoop into dump trucks that carry 400 tons per load. The water used to separate bitumen from sand must be heated. It has been estimated that current tar sands operations contribute four per cent of Canada’s total greenhouse-gas emissions, and that figure is projected to triple over the next six years. Some engineers are proposing to lower this figure, however, by using portable nuclear reactors to heat the water.
The more one looks into the realities of the tar-sands industry, the more absurd it seems. In order to separate the bitumen (which is only twelve per cent of the oil sands “ore” by volume; four tons of it must be mined to yield a barrel of oil) they need to heat so much water that nuclear reactors are a viable way to do it? And even once the bitumen is separated, it is still too viscous to ship; it has to be “upgraded,” using more heat and pressure, to get it to flow.
But, (advocates insist) we need the oil. And if these ecological travesties are going on way up in Northern Alberta (where, by the way, it is creating lots of jobs; the remote village of Fort McMurray is a boom town), what do we care? They’ve got plenty of land up there. But: the remoteness of the Albertan oil sands deposits brings us to the next chapter of our story. No oil-refining capacity exists anywhere near them. For this oil to be viable, there has to be a cost-effective way to get it to refineries.
Advocates of the Keystone XL assert that it should be built because those Canadians are going to sell their oil anyway; if they can’t use this route, they’ll send it West to the Chinese, or East to Atlantic ports. It isn’t that easy, though. To get to the Pacific, a pipeline would have to cross the Rocky Mountains. The route East is much longer, would have to pass through many complex, populated rights-of-way, and has already faced vociferous opposition in Portland, Maine, where voters this year prohibited the reversal of flow through an existing pipeline to accommodate oil-sands crude. Shipping of crude oil by railroad is at just about the peak of existing capacity, and has led to some devastating spills. No, there is a very big, very clear reason why the Keystone XL pipeline is such a big deal:
Without it, the Canadian oil sands industry will be a losing proposition.
Now, let’s be clear: I’m saying that without Keystone XL, the Canadian oil sands industry will be a losing business proposition for its investors. It’s already a losing proposition for the planet; its external costs are, as we’ve seen, absurdly high. But, in spite of everything, if it is able to deliver 830,000 barrels per day to US refineries, it will be profitable — and this pipeline is the only way it can possibly do that. If the pipeline goes through, mining operations will ramp up, economies of scale will kick in, and money will be made. If it doesn’t, well… then the big scar on Alberta’s land won’t get bigger, and a very large amount of carbon won’t get dumped into the world’s air.
James Hansen and Bill McKibben saw the writing on the wall, and organized a very efficient public campaign to raise awareness about the pipeline and its dangers, and their efforts seem to have been effective in strengthening President Obama’s resolve against the project (because it crosses an international border, its final approval is the responsibility of the State Department). This could be overridden by new legislation. A bill to force approval of the pipeline recently lost narrowly in the lame-duck senate; once the new Republican senate is in place, it will almost surely pass. Obama has been sending signals that he would likely veto the bill — but, that may not be the end of the Keystone XL. There could conceivably be enough votes to override his veto, or the pipeline could be traded for a policy the president wants more, such as a minimum wage increase.
The Last Stand
So, bad as it is, the Keystone XL might get the go-ahead anyway, and there’ll be no stopping it, right?
Perhaps there will. There is another sovereignty that must be consulted here — one that deeply disapproves of the Keystone XL pipeline. President Cyril Scott of the Rosebud Sioux Tribe said this in a November 14th statement in response to the bill to force approval of the pipeline that was passed by the House of Representatives:
[T]he Rosebud Sioux Tribe (Sicangu Lakota Oyate) recognizes the authorization of the this pipeline as an act of war. The tribe has done its part to remain peaceful in its dealing with the United States in this matter, in spite of the fact that the Rosebud Sioux Tribe has yet to be properly consulted on the project, which would cross through tribal land, and the concerns brought to the Department of Interior and to the Department of State have yet to be addressed.
The House has now signed our death warrants and the death warrants of our children and grandchildren. The Rosebud Sioux Tribe will not allow this pipeline through our lands.
In earnest of this, the Rosebud Sioux, with the full cooperation of the other Sioux Tribes in South Dakota, have set up a “Spirit Camp” near the tiny community of Ideal, South Dakota, on a small patch of Rosebud tribal land that appears to lie in the proposed path of the pipeline. There, tribal members and supporters have vowed to stay, to guard the land and stop the pipeline.
Does the pipeline route actually cross reservation land? That is an important question, and it appears that TransCanada has chosen the route carefully to avoid doing so. First Nations in Canada have, for the most part, strongly opposed oil sands development, and the company clearly wanted to avoid crossing reservations land in the US, recognizing that doing so could expose them to another level of legal complications.
However, it is very difficult to cross the country to the North and East of the Rosebud Sioux reservation without crossing land that does, indeed, belong to the Rosebud Sioux. And, furthermore, even were the pipeline not to actually cross Rosebud trust land, consultation with the tribe is still legally required if such a project were to cross adjacent lands in which the tribe has recognized riparian, burial or sacred considerations.
This Far. No Further.
The question of whether a crude oil pipeline in South Dakota crosses sovereign Indian land is by no means settled, legally or morally. The history of the “Great Sioux Reservation” which was created by the 1868 treaty of Fort Laramie is, in many ways, an apt microcosm of the entire history of dealings between the United States and the indigenous people of North America.
The vast majority of surviving Native Americans never surrendered to the United States, and never sought to become US citizens. As settlement pressure increased, tribes were moved, often forcibly, to designated areas. On these reservations, Indians would maintain self-government. They were not subject to the laws of the state(s) that surrounded the reservations; they would maintain a “nation-to-nation” relationship with the federal government, based on treaties (treaties duly negotiated between sovereign states had long been considered, under common law, as the law of the land).
However, by 1887, even that arrangement, disadvantageous as it was to the Indians, came into conflict with the Manifest Destiny of the United States. That year, under the Dawes, or “General Allotment” Act, Native Americans were offered US citizenship under the worst possible terms. Under this law, the reservations would be dissolved and individual families would be allotted 160 acres of land. If individuals accepted these allotments and farmed their lands in a suitable manner, they would be granted citizenship. To be sure, there were many more 160-acre parcels of land in the Great Sioux Reservation than there were individual families to allot them to. That was part of the plan: the “surplus” land would be made available to white settlers.
This was, of course, just the latest in a long series of treaty abrogations by the US government. Nevertheless, as in the case of slavery (or fee-simple land ownership, for that matter), a need was felt for some form of legal justification. This came in the 1903 Supreme Court decision of Lone Wolf v. Hitchcock, which has been called the “Indian Dred Scott decision.” The court held that the US Congress has the power to unilaterally abrogate treaty obligations with native tribes. A series of laws, pursuant to this decision, offered to buy Rosebud Sioux lands for $2.50 (later $2.75) per acre. As the poster shows, these were bargain prices.
This history is the source of the “checkerboard” pattern of trust lands held by the Rosebud Sioux, which are now considered non-contiguous parts of their Reservation. The sovereign status of Indian nations was reinstated in US law by the Indian Reorganization Act of 1934, pushed by the Franklin Roosevelt administration and termed the “Indian New Deal.” By this time, however, more that 90 million acres, some two-thirds of Indian lands, had been transferred to white settlers.
The Profaning of the Black Hills
Gold was discovered in the Black Hills of South Dakota (and Wyoming) in 1874. Before that, this area, which had been held as sacred for hundreds of years, had not been much use to the United States. But, after the Lakota were defeated in the battle of Little Big Horn (1876), Congress seized the Black Hills, in a rider to an 1877 law that ceased all government aid, including food, unless the Black Hills were immediately ceded to the US. There was no mention of compensation.
In 1942, the national monument opened at Mount Rushmore (named for Charles Rushmore, a prospector). The mountain had previously been known by the Lakota as Six Grandfathers, and it featured prominently in the celebrated spiritual journey of Black Elk.
In 1980, the US Supreme Court, upholding a 1977 decision by the US Court of Claims, affirmed that the seizure of the Black Hills was illegal under the Fifth amendment, and awarded the Lakota $106 million in compensation. The various Lakota tribes making up the Sioux nation (Rosebud, Pine Ridge, Crow Creek, Cheyenne River, Standing Rock) agreed not to accept the cash compensation and demanded that the land be returned to them, as stipulated in the Fort Laramie Treaty of 1851. The money was held in escrow, and now totals over a billion dollars. Some are tempted to take the money; the various Sioux reservations are among the poorest areas in the United States. However, the current value of the settlement would only amount to a bit over $10,000 per person.
The Spirit Camp
It is widely understood that all aspects of legal precedent regarding the “government-to-government” relationship between the United States and Indian nations are uncertain. Indeed, the 1903 Lone Wolf decision (affirming Congress’s right to abrogate treaties with Indian nations at will) has not been overturned. And, laws passed that enforced the allotment policies of the Dawes act are still accepted as legal precedent. Nevertheless, there is a body of law that establishes some form of sovereignty for federally recognized Indian nations. Under that body of law, you can’t slap a pipeline down on reservation land — or atop sacred or burial sites on nearby stolen land — without permission.
The Rosebud Sioux members who are living in tipis along the pipeline route, outside of Ideal, South Daktoa, are making sure these facts are not ignored:
Resistance to this threat is underway. The Lakota and their allies are rising to the challenge with several carefully calculated actions, one of which is to organize and erect spiritual tipi camps to stop progress along the pipeline right-of-way…. We will use the legal and moral authority of the First Nations peoples to protect significant spiritual and burial sites which are at immediate risk…. Our government spends millions of dollars to protect cultural sites in other countries we occupy while it issues permits for the destruction of similar sites in the heartland of America for corporate profit.
The XL pipeline is the current leading threat to the survival of the planet and these spiritual tipi camps are our best opportunity to stop it. Lakota men and women are putting their lives on the line for all of us, and they need your help.
Should the Keystone XL pipeline survive a presidential veto, or otherwise gain government approval, the Spirit Camp could be the last thing that stands in its way. To be sure, the US government has the ability to sweep aside this resistance which, however heroic, is quite small. But, it won’t be able to do so without perpetrating yet another unforgivable atrocity against the Lakota people.