Under the Eye of Sauron: Oil, Gas, Corruption and Change in Mandan, Hidatsa and Arikara Territory
Saturday, October 11 2014
Written by Winona LaDuke,
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I wanted to write a story about strength and resilience. I wanted to write a story about the singers, the horse people and the earth lodge builders of the Mandan Hidatsa and Arikara peoples; the squash and corn, the heartland of agricultural wealth in the Northern Plains.

That’s the story I have been wanting to write. That story is next. The story today is about folly, greed, confusion, unspeakable intergenerational trauma and terrifying consequences, all in a moment in time. That time is now.

For me, this story began at Lake Superior, a place which is sacred to the Anishinaabeg and the source of a fifth of the world’s fresh water. I rode my horse with my family, my community and our allies, from that place, Rice Lake Refuge to Rice Lake on my own reservation. Those two lakes are the mother lode of the world’s wild rice. These two lakes and the region are threatened by a newly-proposed Sandpiper pipeline of fracked oil from the Bakken Oil Fields of North Dakota, from the homeland of those Arikara people. We rode, but we did not stop, driven to go to the source, we traveled to North Dakota, accompanied by a new friend from Colorado and an organization called Fractivist. That is this story.

Mandan, Hidatsa and Arikara territory is in the northern Missouri River. A land of gentle rolling hills, immense prairie diversity and the memory of fifty million bison. Today, it's called the Ft. Berthold reservation in North Dakota and it’s known as the sweet spot for Bakken crude oil. About 20 percent of the state's oil production is coming from this reservation, in a state with 19,000 wells.

Lynn Helms, ND Director of Mines spoke from a panel, telling us there are 193 drilling rigs in the state, one-sixth of them (28) are on Ft. Berthold, half on trust lands and half on fee lands. There are 1,250 active and producing wells on the reservation, with 2,150 leased and ready to drill. Then, Helms explained, these wells will be in the “harvest phase of production” soon. All of those are fracked oil wells, with some gases being burned off in a set of flares that lights up the reservation in an eerie way. Everywhere, it is as if the Eye of Sauron (from “The Lord of the Rings” trilogy) is present.

That is what we see. What we also see is that there’s a huge change in wealth on the reservation. Things are going so well that the tribal council, which five years ago, was facing a $200 million debt, is now wealthy. The tribal council purchased a yacht, a yacht to take guests like Sen. Heidi Heitkamp and oil company executives on the lake and to enjoy the beauty and opulence many oil rich countries are accustomed to. The yacht sits quietly on a dock by the casino, no fanfare today.

So let us talk about poverty and how North Dakota and the U.S. treated the Mandan, Hidatsa and Arikara people. They were the poorest for many years, an unspeakable poverty of loss, intergenerational trauma and the meanness of America. All that was manifest – not only during the Indian Wars, the small pox epidemics (wiping out 90 percent of their people) – but crowned, by the 1954 Garrison Diversion project that drowned a people under Lake Sakakawea, taking 152,000 acres of their best land.

The dams drowned their villages, drowned their agricultural wealth, drowned their history and rewrote it in America’s manual of agricultural progress. The sense of despair was, in some ways manifest in the landmark Dana Deegan case, where Deegan abandoned her newborn infant and allowed it to die, an unspeakable horror. For this, she was sentenced to a decade in prison, in a highly controversial federal court decision. (Similar cases involving non-Native women resulted in supervised probation and reduced sentences.) “The law needs to be changed and Indians need to be treated the same as their non-Indian neighbors,” Judge Myron Bright, U.S. Court of Appeals for the Eighth Circuit, wrote in his dissenting opinion.

Bright pointed to the historic trauma and abuse in the Deegan case as the basis for his dissent (See www.FreeDana.com). In the end, there is no grief that I can imagine is deeper; except, perhaps the grief that is to come. That is unimaginable and that grief could be prevented by tribal leaders, or inherited by their children.

That is part of the question to be asked here. How much does the tribal leadership know about what is going on? And how much do the people know?

Kandi Mossett, a Mandan, Hidatsa and Arikara Nation citizen, along with many other community members like Theodora and Joletta Birdbear have been fighting it all. They have been trying to protect their community for a decade from new threats brought by the petroleum reality. This includes the Basin Electric coal facilities, just upwind from their villages, which were rushed through the federal processes. No new oil refineries have been built elsewhere in the U.S. for decades, but tribal sovereignty may exempt this proposed site and expedite its process. The Facebook page “This is Mandaree” is a wealth of information and stories they work with the Dakota Resource Council, a non-profit trying hard to turn the tide against extraction industries.

Known and Unknown

In the Anishinaabe universe, there are eight layers of the world – those are the worlds in which we live, those above and below. Most of us live in the present, in the world we can see. What we do, however may intersect with those other worlds.

Fracking oil is a new technology, despite what oil companies say, it is a big experiment; made possible because of a perfect storm: a lack of federal regulation, a dearth of state and tribal regulation, and unlimited access to water and air, into which everything is dumped.

The 2005 Energy Policy Act had something in it called the Halliburton Amendment. That amendment exempted the oil and gas industry from most major environmental laws. This includes special exemptions from the Comprehensive Environmental Response, Compensation and Liability Act, commonly known as Superfund. That law authorizes the EPA to respond to releases – or threatened releases – of hazardous substances that may endanger public health, welfare or the environment.

Other exemptions for the oil and gas industry in the amendment include: Resource Conservation and Recovery Act (Subtitle C establishes a federal program to manage hazardous wastes for its entire existence to ensure that hazardous waste is handled in a manner that protects human health and the environment); the Safe Drinking Water Act (the main federal law that ensures the quality of Americans' drinking water); the Clean Water Act (intended to restore and maintain the chemical, physical and biological integrity of the nation's waters by preventing point and non-point pollution sources, providing assistance to publicly-owned treatment works for their improvement); and the National Environmental Policy Act (a law intended to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that could significantly affect the environment).

The Clean Air Act is the law that defines EPA's responsibilities for protecting and improving the nation's air quality and the stratospheric ozone layer. Exemptions to the CAA remove the requirement that emissions not be combined with emissions from any oil, gas exploration, production wells and emissions from any pipeline compressor or pump station.

The exemptions have worked out pretty well for industry and one might argue for the short term leaseholder and royalties. Not so for those trying to protect the environment. Edmund Baker, Ft. Berthold Environmental Director, has been challenged in his regulation of the fracking industry.

On July 8, what was known as the Crestwood Spill was discovered. This means about a million gallons of radioactive and highly saline water was leaking from a pipe and headed to a stream and Lake Sakakawea. Industry officials, joined by Chairman Hall, talked about how fortuitously all had been saved by three beaver dams. Let’s say leave it to beaver, may be a bit of a simplistic environmental protection plan.

The spill was found. Always a problem, because when something is found, it has usually gone on for quite a while. After all, the 800,000-gallon spill that occurred last year in the Bakken field was discovered, about two months after it had started seeping out of a quarter size whole in a pipe. The Crestwood spill is estimated to be well over a million gallons of highly saline and radioactive water. Baker has not been able to review any of the spill data. That data is held by the tribal council.

“My officers had asked if they could get copies of the samples. My officers were denied. I don’t have the data, I don’t have any solid numbers … I never received anything,” Baker said.

His job is already difficult, being as there are 1,200 or so wells on the reservation and twice as many underway, not to mention a pretty substantial waste stream from the fracking industry. Those wastes are not just water, or airborne, they are also solid wastes and some of those are radioactive.

Death by Lethal Injection

Let’s start with the problem of water. Fracking involves the use of immense amounts of water – hundreds of millions of gallons per well. One company (Southwest Energy Resources) told reporters that what’s involved in fracking is basic chemicals you could find in your house.

That would be – it seems – if you were running a meth lab. Water used by fracking companies laced with over 600 toxins and carcinogens. Those chemicals are considered trade secrets and are not subjected to scrutiny. This has become a bit of a problem. Simply stated: once water has been used in fracking, it is no longer living water. It is dead and it is lethal.

Much of that water is being pumped into deep underground caverns, by the trillions of gallons.

In Colorado, there is one injection well that is over a trillion gallons, injected. The data from North Dakota is hard to come by but it is emerging, but Colorado’s data has been probed by a host of concerned citizens.

A report released in June by Abrahm Lustgarten of ProPublica found, “Over the past several decades, U.S. industries have injected more than 30 trillion gallons of toxic liquid deep into the earth, using broad expanses of the nation’s geology as an invisible dumping ground.”

During its investigation of the EPA’s oversight of the nation’s injection wells, ProPublica found that the agency was unable to provide basic information to its journalists, such as how many disposal wells fail and how often such failures occur. The investigative news organization also reported that the EPA, “has not counted the number of cases of waste migration or contamination in more than 20 years” and that “the agency often accepts reports from state injection regulators that are partly blank, contain conflicting figures or are missing data.”

Shane Davis directs a Colorado organization called Fractivist. Colorado is a few years down the road in fracking. There are 54,000 wells presently in Colorado and in Weld County – where Shane lived – there were 22,000 wells, some 75 within a one mile-radius from his house.

Davis got sick from the wells. He described a set of serious rashes, going blind for a week, serious gastrointestinal problems and a year-and-a-half of a bloody nose. Then he got angry, “I conducted an investigative study using un-redacted, official COGCC spill/release reports and found that 43 percent of all oil and gas related spills resulted in ground water contamination with chemicals like benzene, toluene, xylene, ethyl-benzene and many more in Weld County, Colorado.”

A biologist by training, Davis continued to research and his findings were confirmed by Colorado agencies in 2013. He explained, “Colorado’s largest aquifer was also contaminated by thermogenic methane and toluene in 2009. The aquifer was never cleaned, the oil and gas operator was fined $46,200 and the public was never informed by the state about this atrocity.

“Citizens drank benzene contaminated water, people’s homes have abandoned oil and gas wells in their back yards and they do not know about them, homes have been built on top of abandoned wells, which leaked gases that subsequently exploded and sent the occupants to the burn center. “Billions and billions of gallons of toxic, endocrine disrupting chemicals have been discharged in Colorado’s rivers, lands and airways for years with no end in sight.”

An interesting question was asked by reporters Joel Dyer and Jefferson Dodge in the Boulder Weekly, “With more than 30 trillion gallons of toxic waste having been injected into the inner earth, what happens if our belief that what goes down can’t come up is wrong?”

The Levels Above

Flaring: The Eye of Sauron
“Every single day there is more than 100 million cubic feet of natural gas, which is flared away. That’s enough to heat half a million homes. That’s as much carbon dioxide emitted as 300,000 cars,” Kandi Mossett explains. “That’s crazy.”

There is twice as much flaring on the reservation as off the reservation. That’s to say that the lack of infrastructure has been surpassed by the speed of extraction. Natural gas burned in flaring is a byproduct of crude oil. Without enough pipelines to transport the gas at a state level, one-third of what’s released each day – worth $1.4 million – goes up in smoke. Tribal citizens say as much as 70 percent of gas from wells on the reservation is flared.

Ironically, last winter – as Debbie Dogskin on the nearby Standing Rock reservation froze to death in the polar vortex and a nationwide propane shortage set in – the Bakken fields flared gas, rich in propane. According to the Bloomberg News, “On a percentage basis, more gas was flared in the state than in any other domestic oil field and at a level equal to Russia and twice that in Nigeria. In Texas, less than 1 percent of natural gas is burned off; in North Dakota, flaring is allowed for six months.

In North Dakota, energy companies can flare for a year without paying taxes or royalties. Oil and gas production is greatest during a well’s first three months, exacerbating the problem. Tribal officials are very concerned about the flaring, but the companies have been reluctant to invest in the infrastructure necessary to capture the gases, so flaring continues.

This brings you to what we don’t see. “These are called VOCs, or volatile organic compounds,” Mossett explains. “They – the companies – have generously put up signs for us, to tell us that the toxins are present in the air. What do we do, just stop breathing when we go by?”

A Colorado School of Public Health study undertaken by Dr. Lisa McKenzie found airborne hydrocarbons near oil and gas facilities. She found a number of carcinogenic chemicals and endocrine disrupting chemicals being released one-half mile away from the oil and gas facilities, at levels which would increase human cancer rates exponentially.

Dr. Theo Colburn completed an air chemistry study that also found high levels of endocrine disrupting chemicals (EDCs) being released by the fracking industry. Those make you sterile, among other health concerns, they are not to be trifled with.

Industry has suggested that toxic emissions don’t occur but studies indicate that between 2 and 100 tons per year, per well pad are emitted into the air. That includes benzene, toluene, napthene, xylene and more. Those are largely invisible to the eye but they are not invisible to the body, nor an infrared camera. Davis began using military infrared cameras to document the escaping gases. Those are pretty extensive and can be viewed online, at Fractivist.org. The longterm impacts may be more troubling – endocrine disrupters that cause sterility and birth defects.

“A huge portion of the chemicals used in the fracking industry are protected as trademark secrets. This becomes important because an active oil and gas well pad or has an on-site issue, such as a blow out, or spraying chemicals in communities or elsewhere, where there are animals or humans, the victims would not know the nature of the chemical contamination and thus puts the patient and the doctor in jeopardy.” Davis said. “If there is an issue with a well pad, the emergency response people do not know the chemical they are responding to and consequently will not have the appropriate equipment for this response. Every operator has a different cocktail, which they are using, and in that fluid there are trade secrets they are using. A huge concern is that the burden of expense has been shifted to the general public to pay for the emergency response and so the oil and gas industry does not have to really get involved.”

About the Money

This is – after all – about money.

Money that provides compensation to tribal citizens for leases and royalties, which makes everyone feel better. There are tribal millionaires, there are oil barons, there are tribal leaders who are oil barons and the state of North Dakota is looking robust in its' economic plan. But not everyone is doing so well because not everyone has mineral rights and those who do may have been cheated out of hundreds of millions of dollars in royalties by a complex scheme. “Some of our tribal members leased land for $34 an acre,” Mossett said.

Ramona Two Shields and Mary Louise Defender filed a lawsuit in late 2012, which was about the money, alleging that an unscrupulous set of decisions had been made in a complex web entangling casino managers, tribal leaders, BIA and agency representatives, along with oil interests. The legal brief reads like something from the “Pelican Brief.”

The case was dismissed on a technicality but has some interesting stories.

Like the story of the 42,500 acres of tribal land that was leased at below market value by the BIA and with approval of the council – worked through some middlemen associated with the casino and Ft. Berthold Development Commission – and Spencer Williams and Rick Woodward as well as other figures in the oil and gas industry.

The Two Shield suit alleges that the BIA, under the influence of a set of factors, grossly mismanaged the potential revenues from the oil leasing on the reservation, resulting in the loss of millions of dollars to tribal citizens. Another set of corruption charges were leveled at the tribal council, in particular recently-defeated Chairman Tex Hall. A report released in mid-September included 100 pages of legal analysis and 200 pages of exhibit documents.

“The report,” according to the Bismarck Tribune, “lays out a timeline that alleges just days after being elected in 2010, Hall used his office to demand $1.2 million from Spotted Hawk Development, an oil and gas company, before he would sign off on the company’s development plan. It also alleges he used his office to secure more than $580,000 in payments for water-hauling to a man who has since been implicated in a separate murder-for-hire scheme. The report further alleges he unfairly competed with other tribal oil service companies.”

The problems, however are deep, and more than a little intergenerational as well as multi-jurisdiction. And Tex “Red Tipped Arrow” Hall did not make this whole story, nor all the problems. A few years ago he pointed out how the tribe has had to struggle just for a pittance, “The state has a $1 billion budget surplus and created a $1.2 billon trust fund for infrastructure needs. The MHA Nation has roads that need fixing now. Our tax revenues should not go to a state investment account. In 2011, the State collected more than $60 million in taxes from energy development on the reservation, but spent less than $2 million for infrastructure on the Reservation,” Hall testified at a federal hearing.

Flash Forward

It’s September 3 at the Great Plains Tribal Chairman’s Association and I’ve had the pleasure of speaking on a panel with four oil and gas guys.

Things are looking pretty good for the industry after all. The BIA has a table, at which they are busy flagging down possible lessees with a bright green pamphlet titled, “Frequently Asked Questions for Indian Mineral Owners,” and a price list for what is available and when it might get paid out.

It’s sort of an upbeat occasion for the bureau, after all that mismanagement uncovered in the Cobell (Indian Trust) case. This time, the bureau feels it will manage the money well, although that little problem the Two Shield case discusses may remain a problem.

The Ft. Berthold Tribe has celebrated a banner year for oil production, despite a record number of spills, incidents and dirty radioactive frack filter “socks” found in municipal waste, road sides and on an allottees land. “Some kids found some and were playing with them, radioactive frack socks,” Mossett said.

Indeed, Hall celebrated tribal sovereignty on Earth Day with a Barrel Oil Sale and Extravaganza in New Town, announced with great pride in the Denver papers and in a full page advertisement in the Denver March Pow Wow program.

“We’ll all say it was good while it lasted,” is a haunting testimony I heard in northern Alberta from a woman who lives on a small reserve swimming in oil spills today. “It was good while it lasted.”

At my friend Jessica and Marty’s, we are going into the sweat lodge. I am interested in getting any extra toxins off my body from the oil industry – mental, physical or spiritual. I arrived at their house. Today, an oil rig and flare stares at them, 300 yards from their front door.

The eye of Sauron looks at us as we leave our car, headed to the shelter of the lodge. I shudder and then cache myself inside. I swear I heard the well breathing.

Marty and Jessica are building an earth lodge and moving their children there, along with their horses and their future. Somehow the oil production projections in the Bakken seem pretty short term, in the face of an earth lodge. That is to say, that Bakken oil is about the equivalent to a year’s consumption by the U.S. and well capacity is diminishing. That costs money.

On May 27, Bloomberg News reported, “Shale debt has almost doubled over the last four years while revenue has gained just 5.6 percent.”

“The list of companies that are financially stressed is considerable,” said Benjamin Dell, managing partner of Kimmeridge Energy, a New York-based asset manager. That might be a bit of a problem when it’s time to pay up for the damages.

Elsewhere, citizens in Colorado have enacted moratoriums on fracking in seven municipalities, New York and California are deep into battles over fracking, Nova Scotia has just banned fracking; counties in England announced a ban in early September and there are a lot of questions being asked worldwide, and a lot of faucets catching on fire.

North Dakota has not asked many questions. It might be time. It might also be time to ask some questions in Mandan, Hidatsa and Arikara territory.

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