Bakken Oil: An Elder Speaks To Power

“To keep the connection between the Indian person and the land–which is being severed by so many things.” ~~ Marilyn Hudson

open pit mine

Open wastewater pit at Base of Sacred Site by National Georgraphic

Frank Jr. Molley of Honor the Earth and I had an appointment to meet with Marilyn Hudson and discuss the work of the Land Owner’s Association of Fort Berthold, and we were late. Negotiating construction, heavy load trucks, dust, potholes, stones kicked up by speeding trucks, mesmerizing gas flares, and ruts that looked like miniature gorges slowed us down considerably as we drove west on Highway 23 to the peaceful little community of Parshall, North Dakota. Located just south of the highway, Parshall is within the boundaries of the Fort Berthold Indian Reservation–home to the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nations. It was obvious that the use of horizontal drilling and hydraulic fracturing to tap into the massive Bakken Oil Formation had unleashed a maelstrom of unstoppable, damaging, and unpredictable industrial development.

Three years ago estimates indicated 577 billion barrels of oil were under the Bakken Formation, and Fort Berthold is considered the “sweet spot” for oil extraction. Since the implementation of a number of new test wells, estimates have been revised to 903 billion barrels of oil, an increase of 57 percent in less than three years.

After several cell phone conversations directing us to the door of her modest bungalow, Marilyn greeted us at the door and asked us to join her at the kitchen table. At 77 years and counting, Marilyn does not appear to be slowing down at all. The Mickey Mouse watch strapped to her left wrist was an affirmation of her quirky sense of humor and an open personality that was trusting of the strangers she invited into her home.

Marilyn Hudson’s father was full-blooded Hidatsa/Mandan and her mother was Norwegian. Marilyn has lived in the area for most of her 77 years. Her passion at this stage of her life, after working for the Bureau of Indian Affairs and now as an administrator at the Museum of the Three Affiliated Tribes, is establishing an online database that will keep tribal members informed about the impact of oil exploration on the reservation.

“The history of the oil boom and our tribal histories reflect good and bad decisions,” she said. “The poor decisions will haunt our tribe for the rest of its existence.”

Haunted by Decisions

Fort Berthold has good reason to be haunted by recent decisions that were made by the tribal government, as well as those that were historically forced upon the people by the government of the United States.

Fort Berthold Reservation is located in western North Dakota and today encompasses about one million acres–a fraction of its ancestral range. The beautiful Missouri River Valley has been home to this agricultural people for hundreds of years. As a result, religious and spiritual ties to the land and sacred sites run strong. In the December 2011 issue of the “North Dakota Law Review,” Raymond Cross discusses the social and environmental needs of the Three Affiliated Tribes as Fort Berthold faces unprecedented challenges during the boom. Will the reservation become development’s victim or its beneficiary? Cross concludes that oil and gas development must be subjected to   “reasonable legal and social regulation.”

The original territorial lands of the Three Affiliated Tribes included an area reaching from east of the Missouri River to Montana, and south to what is now Nebraska and Wyoming. The Fort Laramie Treaty of 1851 established the size of the reservation from about 12 to 13.5 million acres, and subsequent acts of Congress reduced Fort Berthold to about 930,000 acres, which now also includes white-owned land.

Lake Sakakawea covers 155,000 acres of reservation land, and “covers” is the operative word. The Garrison Dam Project flooded the bottomlands of the Missouri River and completely obliterated many of the long-established Indian population centers of the Fort Berthold Reservation. Before the reservoir was built, 289 out of 357 households were located in the reservoir area. The current resident Indian population of the Reservation is approximately 3,776, with an enrolled population of 9,500. Many moved away after the “takings” of the Garrison Dam Project destroyed culture, fertile growing lands and a sense of place.

History records that the then residing Three Affiliated Tribes Council Chair, George Gillette, was coerced into signing off on the takings of the Garrison Dam Project. Gillette wept uncontrollably as he signed the coerced agreement.

In 1947, the 80th Congress approved PL 296 which appropriated funds for “Flood Control, General.” The Three Affiliated Tribes drew up a contract in 1948 for approval. Indians feared that if they failed to consent to outlined terms, they would receive less adequate compensation in the future. In tears, Council Chairman George Gillette “consented” to the coercive piece of legislation. “The truth is, as everyone knows,” he said, “our Treaty of Fort Laramie…and our constitution are being torn to shreds by this contract”.

chief george

George Gillette (left), chairman of the Fort Berthold Indian Tribal Business Council, weeps as Secretary of Interior J.A. Krug signs a contract whereby the tribe sells 155,000 acres of its reservation in North Dakota for the Garrison Dam and Reservoir project, 1948.

There were nine communities lost to the flooding of the Garrison Dam.  These were Elbowoods, Red Butte, Sanish, Lucky Mound, Nishu, Beaver Creek, Independence, Shell Creek, and Charging Eagle. These communities had a sawmill, schools, a hospital, government buildings, churches, community playgrounds parks and cemeteries.

This is just one example of land grabs forced on tribal leaders, and there is evidence that poor decision-making and coercion continues today. The Bakken oil boom introduced money–lots of it. Outside interests want the money and the oil, just as they had historically coveted the land for the westward expansion of Manifest Destiny.

Tribal Data Base

This is one reason Marilyn Hudson wants to establish an online database of anything and everything that the Bakken Oil boom brings to the reservation so that tribal members know more about what their representatives on the Tribal Council are doing. She would also like to see more access to data on health and education issues. The community college is under threat of losing its accreditation, roads are a mess, people are sick, and the tribe takes in over $8 million a month from oil leases. The Landowner’s Association of Fort Berthold needs more than a database. It needs the exabytes of the NSA Utah computer storage facilities.

On the surface, recent allegations and lawsuits filed in Federal and District Courts involve patterns of greed and swindling that could have been taken from the pages of the script for the movie “Promised Land.” Starring Matt Damon and Frances McDormand, the movie is a moral tale as old as time involving conveniently intersecting political and economic interests.

A 2011 reservation audit charged that there was corruption, nepotism and “ethical violations and/or criminal activity” among the tribal officials who arranged sweet oil deals.

In 2011 a team of elders audited the tribal council’s activities. They found widespread financial inconsistencies that they said indicated systemic misconduct. “We saw millions of dollars going out and hardly anything coming back” to the Three Affiliated Tribes, said Tony Foote a forensic auditor who chaired the team. “We’re not just talking about cash. It’s rooms, food, travel, donations, and there’s only a handful of people that can get all this stuff.”

But who was responsible? Was the USA culpable for not exercising its duty as caretaker of the “sovereign nation” of Fort Berthold? Or does blame fall squarely on the shoulders of tribal leaders and business associates who allegedly schemed to defraud Tribal members of fair compensation for oil leases? What about the Bureau of Indian Affairs that literally rubber-stamped unfair lease sales?

rubber stamp

BIA Rubber Stamp by Georgianne Nienaber

Are the Tribes a Sovereign Nation or Is the USA King ?

In November 2012, a Class Action Complaint filed in the US District Court of North Dakota by Ramona Two Shields and Mary Louise Defender Wilson (Case 4:12-cv-00160-DLH-CSM) accused tribal middlemen and others of a lease swindle that flipped 42,000 Indian Trust Land acres of mineral interest acquired at well below market prices. The Trust Land was sold for a paltry $50 an acre to an entity known as Dakota-3, which subsequently sold the drilling rights to Williams Companies for an eventual $925 million. Dakota-3 was a shell company, set up with no value for the sole purpose of purchasing and flipping leases.

Two players who were working for the reservation allegedly organized the swindle. The Four Bears Casino manager (Spencer Wilkinson–as alleged in the complaint) had access to casino funds for influence and also served on the board of directors for the tribal-owned Fort Berthold Development Corporation (FBDC). Rick Woodward was hired as a consultant for the FBDC to obtain government work contracts for minority-owned businesses.

The complaint alleges that Wilkinson and Woodward began to implement their land grab scheme as early as 2006, when the extent of the extractable oil was enhanced by horizontal and fracking drilling techniques. The plan was to lease a large amount of tribal acreage at the Fort Berthold Reservation “from the Tribal Business Council (TBC) while at the same time leasing a large amount of individual allottee acreage” on the reservation.

85,000 acres of tribal and allottee mineral leases on the Fort Berthold Reservation eventually changed hands. The payoff in the final flip was $10,000 per acre and “not the $110 per acre lease bonus that most individual Native American mineral interest owners were paid, according to the complaint.” (“Indian allottee” means any Indian for whom land or an interest in land is held in trust by the United States)

The “Two Shields” case is still alive and will be argued on Sept 20,2013 by all parties, including an Amicus argument by the US government, in US District Court in Bismarck. “Amicus” means a party not directly involved, but considered a friend of the court. While the US government was not specifically named in the original lawsuit, the original class action complaint contains page after page of how the Bureau of Indian Affairs did not exercise its duty to oversee lease sales, and instead rubber stamped the sales to the benefit of middlemen.

Two Shields vs. USA Rubber Stamp

In a separate case in Federal Court (Case #1:11-cv-00531-LB), filed in August 2011, Two Shields and Wilson sued the USA for $400,000, “alleged (ing) that the United States mismanaged their non-monetary trust assets, namely that the United States breached its fiduciary obligations to Plaintiffs by entering into certain oil and gas leases on allotted land within the Fort Berthold Indian Reservation between 2006 and 2009.”

The suit charged that speculators took advantage of a 1999 amendment to the Mineral Leasing Act of 1938 that allowed them to get each lease from individual allottee lands with the approval of a simple majority of the mineral interest owners and the approval of the BIA “rubber stamp.”

As early as March 26, 2008 a letter from the Fort Berthold’s Elder’s Association to the BIA raised a huge red flag.

The BIA is allowing these lucrative agreements between the oil companies and the BIA”knowing that it was not fair market value”The Bureau of Indian Affairs and the Office of Trust Services have failed in their fiduciary responsibilities to the enrolled members of the tribe.

The BIA did not respond.

August 1, 2008, the Governing Body of the Three Affiliated Tribes of the Fort Berthold Indian Reservation passed a Resolution that noted:

WHEREAS the Three Affiliated Tribes has become aware of the possibility of the assignment or “flipping” of allottee mineral leases without the consent of the  Allottee Mineral Owners and with little or no additional compensation to the  Allottee Mineral Owners”Three Affiliated Tribes Tribal hereby request the Bureau of Indian Affairs – Fort Berthold Agency to amend the standard Oil and Gas Mining Lease for Fort Berthold to include the following provisions. (h) Assignment of lease. Except as provided herein, Lessee agrees that it shall not assign any interest in this Lease except (i) with the written consent of the Lessor; (ii) with the approval of the Secretary of Interior; and (iii) for any consideration received by the Lessee for any assignment of any interest contained under the Lease, the Lessor shall be entitled to eighty percent (80%) of any additional consideration. . . .

The BIA ignored the request, according to court documents.

There is a poignant passage in the complaint that does not read so much as a legal statement of fact, but more as a moral call to arms. Reminding the Court of the USA’s historical failures to protect and preserve land at Fort Berthold, the complaint resurrects the specter of Meriwether Lewis and William Clark. Sakakawea, who is immortalized on the US dollar coin, was a Hidatsa woman (kidnapped from the Shoshone) who guided and interpreted for Lewis and Clark. A Mandan chief, Ankedoucharo or Acitaneeshnu (Eagle Feather), escorted Lewis and Clark back to Washington, D.C. where he died and was buried in Richmond. Virginia.

The Two Shields federal class action lawsuit was ultimately closed and dismissed  when the court ruled that the plaintiffs were already involved in a similar a class action suit pending in District Court for the District of Columbia in Cobell, et al. v. Salazar, et al.

The plaintiffs had not opted out of this similar class action suit that was eventually settled in December of 2012. 400,000 Native Americans from numerous tribal groups received $1,000 checks.

On August 1, 2013, the Claims Administrator mailed letters detailing its second determination of eligibility to all persons who filed a request for reconsideration in Cobell v. Salazar. See this website for updates on the trust fund.

Doing Things in the Right Manner

“Our organization is not pro-development nor are they anti-development. But they are for doing things in a right manner,” Marilyn said as we studied several documents with her. “So many of our regulations are being wiped away in this rush to harvest the oil.”

“Did you see the March issue of National Geographic?”  We had just asked Marilyn for directions to Thunder Butte, a sacred site and also the name of a refinery scheduled for construction on the reservation. But that is another story. The photo she wanted us to see said it all. A lined pit containing borehole and fracking wastewater festered at the base of Thunder Butte.

As I bent over the photo and literally rubbed elbows with Marilyn, I thought about a something I heard activist and orator Winona LaDuke say in the introduction to a film produced by the Sacred Land Film Project.

“Sacred places are like the spiritual recharge areas. Where we are not only always careful, but prayerful.” (00:48) 

Discussion around Marilyn’s kitchen table centered on lack of up-to-date health data for the tribe, lack of funds for the struggling Fort Berthold Community College, which is under threat of losing its accreditation.

Road deterioration, accidents, noise, and the ever-present haze of dust in the air relate directly to health concerns. The “Halliburton Loophole,” which exempts oil companies from some provisions of the Clean Water Act threatens already dwindling clean water supplies.

SEC. 322. HYDRAULIC FRACTURING.

Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:

“”(1) UNDERGROUND INJECTION.–The term “underground injection’–

“”(A) means the subsurface emplacement of fluids by well injection; and

“”(B) EXCLUDES–

“”(i) the underground injection of natural gas for purposes of storage; and

“”(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

The tribe has an environmental code click here, but social media sites on the reservation detail incident after incident of anecdotal violations by the oil companies.

Marilyn hopes the web-based database will lists events, remediation, and enforcement.

Sky Truth, the same organization that unraveled the truth about the amount of oil released in BP’s Deepwater Horizon disaster in the Gulf, has an alert system for complaints about environmental infractions and spills of fracking water, oil and hazardous industrial waste in the Bakken Formation. Anyone can subscribe to the alerts here, which are obtained from the National Response Center.   

The National Response Center (NRC) is the sole federal point of contact for reporting oil and chemical spills. If you have a spill to report, contact us via our toll-free number or check out our Web Site for additional information on reporting requirements and procedures. For those without 800 access, please contact us at 202.267.2675.  The NRC operates 24 hours a day, 7 days a week, 365 days a year.

The database is user friendly.

georgianne nienaberThere has been so much written and discussed about the fracking process and its threat to the continent’s water supply, but there is a process that operates above ground and that is directly tied to the oil boom. The extraction of oil cannot take place without this process, but it is rarely mentioned. The process impacts health, the environment, spiritual practices, and prayerful connections to sacred lands.

Gas Flaring is possibly the single most wasteful and polluting process connected with the Bakken Oil boom. Light and air pollution are also severing the connections between the residents of Fort Berthold and the once pristine land and sky. It is yet another questionable practice that threatens to “severe the connection between the Indian person and the land.”

Georgianne Nienaber

Monday, 9 September 2013

Published by the LA Progressive on September 9, 2013
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About Georgianne Nienaber

Georgianne Nienaber is an investigative and political writer. She lives in rural northern Minnesota, New Orleans and South Florida. Her articles have appeared in The Society of Professional Journalists' Online Quill Magazine, The Ugandan Independent, Rwanda's New Times, India's TerraGreen, COA News, ZNET, OpEdNews, Glide Magazine, The Journal of the International Primate Protection League, Africa Front, The United Nations Publication, A Civil Society Observer, Bitch Magazine, and Zimbabwe's The Daily Mirror. Her fiction exposé of insurance fraud in the horse industry, Horse Sense, was re-released in early 2006. Gorilla Dreams: The Legacy of Dian Fossey was also released in 2006. She spent much of 2007-2009 doing research in South Africa, Rwanda and the Democratic Republic of Congo. Georgianne was in DRC as a MONUC-accredited journalist, and has been working in Southern Louisiana investigating hurricane reconstruction and getting to know the people there since late 2007. She is a member of the Memphis Chapter of the National Academy of Recording Arts and Sciences. Georgianne is currently developing a short story collection set in Louisiana, and is continuing "to explore the magic of the Deep South."