Keystone XL Pipeline Act

Floor Speech

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Mr. CARDIN. Madam President, as we consider both the Barrasso and
Cardin amendments, I wish to remind my colleagues of the unique history
the United States has with Indian nations. This history includes over
300 treaties that were negotiated with individual tribes and nations which
remain in effect today.

For over two centuries our Nation disregarded the concerns of tribal
nations with respect to expansion and development that affected their
communities. This often included abrogating treaty rights and
disregarding trust obligations this country has to Indian nations and
individual Indians. But this is no longer how we work with Indian
nations in our country. We now have laws and Executive orders requiring
deliberate and meaningful consultation on any actions taken by the
Federal Government that affect tribal interests. We have also signed on
to the United Nations Declaration Rights of Indigenous Peoples, which
states that the rights of indigenous peoples cannot be abrogated
without their free and informed consent.

I want to make it crystal clear that nothing in this bill is meant to
abrogate the rights of any Indian nation or any individual Indian. So
while I believe we could say more to affirm these policies in this
bill, I am happy that at a minimum, Senator Barrasso's amendment
guarantees that Indian nations continue to have a voice through
meaningful consultation on this project.

It has been necessary to have this discussion because the Great
Plains Tribal Chairman's Association does not believe that the
consultation required is occurring with respect to KXL. It is helpful
to remind the executive branch agencies involved in this process just
what their obligations are. I would like to quote from a letter the
association recently sent to Interior Secretary Jewell, which states in
part:

As our Trustee, DOI has a specific duty to insure that its
comments and positions on this National Interest
Determination accurately reflect the very real potential
impacts that this Project may have on our historical Tribal
homelands, sacred sites, cultural resources and water rights,
all of which are protected by applicable federal law and our
Treaties with the United States. While many of our Tribes
have submitted comments on this document, the State
Department's unwillingness to sit down with us on a
government to government basis to discuss our concerns has
led us to question whether that Department really respects
our legal roles as elected officials of federally recognized
sovereign tribes. These concerns are so serious that the
Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe,
the Rosebud Sioux Tribe, and the Yankton Sioux Tribe have all
become party interveners in the South Dakota Public Utility
Commission's proceedings challenging its 2010 action permit
for this project.
Madam Secretary, we know that you have many important
demands on your schedule, but meaningful government to
government consultation, especially on matters of this
importance, is assured to us by President Obama's Tribal
Consultation policy of November 5, 2009, as well as by
Executive Order 13175. President Clinton issued that
Executive Order to ``establish regular and meaningful
consultation and collaboration with tribal officials in the
development of Federal policies that have tribal implications
[and] to strengthen the United States government-to-
government relationship with Indian tribes''. President Obama
re-committed federal agencies to this duty through a
Memorandum for the Heads of Executive Departments and
Agencies issued on November 5, 2009, in which he declared:
``My Administration is committed to regular and meaningful
consultation and collaboration with tribal officials in
policy decisions that have tribal implications including, as
an initial step, through a complete and consistent
implementation of Executive Order 13175''. To prepare final
DOI comments on a document of this magnitude without
affording us the opportunity for a meaningful face to face/
government to government meeting is a flagrant violation of
President Obama's directive in 2009 and of the commitments
President Obama has made to us as recently as last December.

Now, what is meant by the term ``consultation''? When the world
community of nations, including the United States, worked with
Indigenous Peoples over a 15-year period to develop the United Nations
Declaration on the Rights of Indigenous Peoples, they used the
consultative standard of ``free, prior and informed consent'' in
Article 11, 2: which reads: ``States shall provide redress through
effective mechanisms, which may include restitution, developed in
conjunction with indigenous peoples, with respect to their cultural,
intellectual, religious and spiritual property taken without their
free, prior and informed consent or in violation of their laws,
traditions and customs.''

This language was necessary because the Federal Government and the
States once ran roughshod over the rights of Native peoples and simply
took and used land and other property of Native nations and persons,
and there was a need to make sure that this would not happen in the
future. In the late 1800s and early 1900s, Native peoples were confined
to reservations and could not leave without permission of the Federal
Indian agent. Even in the 1950s and 1960s, Native delegations to
Washington were not supposed to go to Capitol Hill without checking in
at the Bureau of Indian Affairs, BIA. Native people tell me that they
used to think BIA stood for ``boss Indians around.'' Out of this sorry
past have come new policies that give true meaning to the nation-to-
nation relationship. Key to this relationship is ongoing consultation
that is meaningful and worthy of trust, and agreements that are made
are transparent and consensual.

There are many laws mandating consultation with Indian tribes and
persons, regarding areas on tribal, individual trust and original
lands, among them the American Indian Religious Freedom Act, the
Archaeological Resources Protection Act, the Native American Graves
Protection & Repatriation Act, and the National Historic Preservation
Act. Unless the consultation required under these and other statutes is
open and based on informed consent, it is not meaningful and cannot
lead to a good end. When we refer to consultation in the modern era, we
do not mean some sleight of hand; rather, we intend fair, good faith
dealings that honor the high standards of the United States' treaty and
trust relationship with the Native peoples.

I will close my remarks simply by including excerpts from just two
recent judicial decisions regarding the nature of Federal-tribal
consultation. First, from the U.S. District Court for the Southern
District of California ruling in the case of Quechan Tribe v. United
States Department of the Interior, et al (December 15, 2010), citing
the National Historic Preservation Act: ``The consultation requirement
is not an empty formality; rather, it `must recognize the government-
to-government relationship between the Federal Government and Indian
tribes' and is to be `conducted in a manner sensitive to the concerns
and needs of the Indian tribe.' ''

Second, from the case of Comanche Nation, et al v. USA, et al
(September 23, 2008), involving the Army's failure to consult with the
Comanche Nation regarding a sacred place, Medicine Bluff, the U.S.
District Court for the Western District of Oklahoma found that the
National Historic Protection Act, NHPA:

. . . requires an agency to make a reasonable and good faith
effort to identify historic properties that may be impacted,
and to identify . . . issues in connection with such
potential impact. . . . The reasonable and good faith efforts
requirement extends to consultation with Native American
tribes which may attach religious and cultural significance
to potentially affected property . . . It has been said that,
in a general sense, the NHPA requires agencies to `stop,
look, and listen' before commencing actions which could
impact historic or culturally significant properties. . . .
The evidence submitted during the preliminary injunction
hearing substantially demonstrates Defendants' actions were
contrary to the letter and the spirit of the NHPA and its
implementing regulations. . . . Defendants virtually ignored
the concerns regarding the viewscape up to the Bluffs from
the southern approach. . . . Contrary to the direction of the
Ft. Sill Garrison Commander . . . to `get with the tribes'
about their viewscape issues, that same day the Section 106
letter was sent out without a reference to Medicine Bluffs
and without mentioning the potential impact on viewscapes.
Instead, the details of the TSC project were buried in
technical attachments, and the consulting parties were left
to ferret out for themselves the adverse impact on viewscapes
then known by Defendants to exist. . . . Moreover, the
requirement of good faith consultation suggests that the
consulted Native American tribes would have considered it
important to know, and therefore should have been told, that
the TSC warehouse was the tip of the iceberg regarding plans
to build within the southern approach to the Bluffs. . . . In
reality, the area in question is also slated for construction
of a DRMO facility (which will occupy about 20 acres),
construction of a fire station, and a widening of Randolph
Road on its north side. Had this cumulative impact been
disclosed to the area tribes, their initial reaction may well
have been different. As it was, the Comanche Nation began
complaining in earnest in the fall of 2007 and early 2008.
These protests, asserted after the close of the 30-day
comment period announced in the August 10, 2007 Section 106
letter, were brushed off by defendants as untimely. Having
concluded that they technically complied with the Section 106
process, Defendants decided to proceed with the TSC project
despite the mounting objections from the Comanche Nation. . .
. it has been said that the NHPA requires an agency to `stop,
look and listen' Coliseum Square Ass'n, Inc., 465 F.3d at
225; the evidence in the present case suggests that
Defendants merely paused, glanced, and turned a deaf ear to
warnings of adverse impact. Thus, Defendants' efforts fell
short of the reasonable and good faith efforts required by
the law. Where a plaintiff shows that an agency failed to
comply with the NHPA requirements, injunctive relief may
issue.

The bottom line is that for over two centuries, our Nation
disregarded the concerns of tribal nations with respect to projects
affecting tribal communities. We now have laws and executive orders
requiring deliberate and meaningful consultation on any actions taken
by the Federal Government that affect tribal interests. This certainly
applies to the Keystone pipeline.

I want to thank Senator Barrasso for working with us on the amendment
we just approved that makes it very clear that the consultation
obligations must be adhered to. I also want to thank Senator Heinrich,
Senator Tester, and Senator Cantwell for their incredible help on this
issue so we could get a compromise.

The work that Senator Barrasso and I have done in consultation with
other Members, with the amendments that have been filed, to try to find
common ground exemplifies what I hope we would do more of here in the
Senate: finding common ground.

So I am pleased we were able to adopt the Barrasso amendment.

Amendment No. 124 Withdrawn

With that, I ask unanimous consent to withdraw my amendment.

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