In light of the battle the water protectors are waging to protect the traditional lands of Lakota and Dakota from the poison of the black snake (otherwise known as DAPL)– a project that involved “tribal consultation” during its “approval” process– I wanted to share an article that I wrote previously that highlights how the tribal consultation process, as it currently exists, does little to nothing to protect the sacred landscapes of Indian Nations from federal projects that require federal environmental approval. It’s important to note that, with very few exceptions, all land within the geography known as “America” is sacred to our Indigenous Nations. Reservation boundaries are arbitrary and small; the traditional lands of each Indigenous Nation are far more expansive than each nation’s respective reservation boundaries. And, an unfortunate circumstance created by this geographic and political reality is that there are many, many sacred sites and cultural properties that exist off reservation lands that ultimately can’t be protected, directly, by Tribal governments.
This type of genocide and cultural destruction, which involves federal application, review, and approval, which in turn requires tribal consultation, is not new. Recently, some of the Peoples of the Colorado River (in particular the Quechan Nation, for whom I used to work) experienced similar cultural annihilation with the approval and construction of the Ocotillo Wind Project and Genesis Solar Project, both constructed on sacred landscapes that were situated on federal lands. These two projects incorporated abundant tribal consultation, but that did not stop the devastation.
In short, tribal consultation is meaningless. It is ineffective, futile, and offers only the mere slightest hope that the federal government will, utilizing its own good and moral judgment, decide against corporate and political interests in favor of native spirituality. It doesn’t work.
The system is flawed and it must itself be razed to the ground. Native spirituality is a human right that must be acknowledged, recognized, and protected, on and off reservation lands, by this nation. A new system must be created that secures these spiritual properties.
I don’t know what this new system will look like, but I’m happy to talk with anyone to share ideas.
In any event, my article touches on some of these issues, and I hope it helps our collective discussion.
Ocotillo Wind: A Case Study of How Tribal-Federal Governmental Consultation is Failing Tribal Governments and Their Spiritual Landscapes from Renewable Energy Development
John P. Bathke, J.D.
(Human Geography, Volume 7, Number 2, 2014)
Abstract
In an effort to mitigate climate change, the federal government has recently opened public lands to the development of utility-scale renewable energy projects. The federal government is processing the applications for these projects arbitrarily fast, particularly in Southern California and Western Arizona. Pursuant to Section 106 of the National Historic Preservation Act, federal projects trigger government-to-government consultations between the federal government and Tribal Governments. The Quechan Indian Nation, whose traditional lands encompass many of these projects, has been forced to defend its cultural resources from destruction by these projects. However, because the federal government has treated these applications in a “fast-track” manner, the tribal consultation process has become extremely rushed, thus not allowing Tribal governments enough time and/or resources to adequately protect their sacred sites on public lands from development. In particular, the Ocotillo Wind Express Facility, within a spiritual landscape important to the Quechan and other Indian Nations, highlights how Tribal governments may not be able to rely on Section 106 tribal consultation, and the nomination of landscapes as Traditional Cultural Properties (TCP), to protect their spiritual heritage embedded in public land. The current tools of Section 106 consultation and TCP nomination have proven useless to preserve a cultural landscape, spiritually important to Quechan, from being devastated by a 112-turbine wind project. This article examines how the underlying nature of tribal consultation does not offer Tribal governments any reliable method of protecting their cultural resources on public lands. The federal government diminishes any benefit of tribal consulting when it arbitrarily accelerates the environmental review process on many current renewable energy projects.
Introduction
As the United States becomes increasingly aware of the impacts of climate change, the federal government is promoting renewable energy (RE) projects, based primarily on solar and wind technologies, to combat global warming. This has resulted into a rush to develop utility-scale RE projects sited on public lands, primarily Bureau of Land Management (BLM) land. Prior to this time, there had been no utility-scale renewable energy projects developed on BLM land.
Many of these projects have been sited in the Colorado and Sonoran Deserts, in Southeastern California and Western Arizona, respectively. The Quechan Indian Nation considers much of this area part of their traditional lands, and several of these projects, although not on the Quechan reservation, have impacted Quechan cultural resources and spiritual heritage.
While these federal projects go through an environmental review processes, the application and corresponding tribal consultation exposed many weaknesses in the protections afforded Tribal governments[i] from Section 106 of the National Historic Preservation Act (NHPA) and the use of Traditional Cultural Property (TCP) nominations to the National Register of Historic Places. Both laws are designed to give Tribal governments an opportunity to preserve off-reservation cultural resources. However, the U.S. Department of Interior’s (DOI) fast-track designation of these recent project applications as “fast-track” has resulted in an arbitrarily accelerated tribal consultation and environmental review process and has created, ultimately, little to no preservation of Indigenous cultural resources.
The Ocotillo Wind Express Facility (OWEF) project symbolized to the Quechan how the fast-track application process unfairly glossed over documented and expressed Native cultural concerns. The project area was sited in the middle of landscape held sacred by the Quechan. During tribal consultation, Quechan representatives provided ample evidence of the spiritual significance of the Ocotillo Desert to the Quechan. Despite this sharing, the BLM decided to approve OWEF development over this sacred landscape.
I have had the privilege of being the former Historic Preservation Officer (HPO) for the Quechan Indian Tribe during the Section 106 tribal consultations between the relevant Tribal governments and the BLM, which was the lead federal agency for the tribal consultation process on the OWEF project application. I am Native American (Navajo), but I am not a member of the Quechan Nation and I do not officially speak for them. However, my experience working for them on this project allows me insights into cultural issues that are affected by these federal projects.
Renewable Energy Projects in the Colorado and Sonoran Deserts
Beginning in 2009, the BLM began processing several solar, wind, and geothermal energy projects (“Renewable Energy Projects Approved Since the Beginning of Calendar Year 2009” 2013). Since 2009, there have been 25 solar (photovoltaic and thermal) projects, nine wind projects, and at least four transmission line projects approved, all on BLM land (“Renewable Energy Projects Approved Since the Beginning of Calendar Year 2009” 2013). Three of these solar projects have been terminated—one because of litigation initiated by Quechan. All of the wind projects have been approved.
The BLM began to process 34 “priority” solar and wind project applications in a matter of four years, and the BLM labeled these applications fast-track. The BLM has not defined what a fast-track renewable energy project application is. However, they have labeled the recent RE projects, primarily in Colorado and Sonoran Deserts, as fast-track (“BLM Concentrating on Renewable Energy Projects That Could Meet Stimulus Funding Deadline” 2010) (“New BLM Office Opens to Fast-Track Renewable Energy Proposals” 2009). The closest the BLM has gone to defining fast-tracking is in internal documents that describes renewable energy as a “priority” for the DOI (Salazar 2009: 3). Additionally, the BLM was “prioritizing those applications that have the fewest resource conflicts and the greatest likelihood of success in the permitting process” (Abbey 2011: 1).
From a Tribal government perspective, fast-tracking a federal right-of-way application is processing and approving an application before all affected cultural resources are reviewed adequately and treated appropriately. Problems arise when magnitude of the project is large– thus, making the all the environmental impacts difficult to fully measure– and/or the magnitude of the cultural resources impacted by the project is extensive– and they are not fully researched and not properly protected. Quechan would assert that approving an application for a 12,000 acre wind farm, on top of a spiritual landscape, before its cultural significance is fully vetted, is an example of a fast-tracking.
Some BLM officials tried to defend their agency as being fair in processing these applications—that there wasn’t a fast-track to automatic approval—by stating that the BLM had denied some of the applications—that the BLM was sensitive to environmental issues and it would and could deny a project if its environmental impact was too deleterious. However, these “denied” applications were, in fact, simply incomplete and none of them went to a “no action” alternative decision from a complete environmental impact statement. By contrast, all of the completed fast-track project applications that went through an environmental review process have been approved and none have been denied.
Ocotillo Wind joined the list of fast-track applications in December 2010 with the BLM’s release of the Notice of Intent to begin the project application (Public Scoping Report 2011). Originally designed by Pattern Energy, as a 155 turbine layout, covering 12,484 acres (Final Environmental Impact Statement/Final Environmental Impact Statement 2012: ES-1), the BLM finally decided on a 112-turbine design covering 10,151 acres (Record of Decision 2012: ES-1). The Final Environmental Impact Statement was released in February 2012 and Secretary Salazar approved OWEF a few months later in May 2012 (Record of Decision 2012).
The Ocotillo Desert
The Traditional Cultural Property that concerns Quechan, in regards to OWEF, generally centers around three mountains with spiritual significance. North of the town of Ocotillo, CA, is Coyote Mountain (Carizzo Mountain), which is central to the Ocotillo Desert landscape. More importantly, it is mentioned in the Quechan Creation Story. Southwest of the peak of Coyote Mountain is a smaller hill, which is known as Sugarloaf Mountain. And south by southeast of the peak of Coyote Mountain, across the Yuha Desert, but visible from the Ocotillo landscape, is Wii’Shpa (translated as “Eagle Mountain” in the Quechan language), now known as Mount Signal.
It should be noted that this landscape is sacred and important to other Indian Nations. The Cocopah and Kumeyaay Nations, in particular, are from the same language family as the Quechan, and this same specific property, likewise, has a spiritual significance to these other two nations. However, this article attempts to analyze the impact of OWEF on this landscape from a Quechan perspective.
More than merely a material resource, the Ocotillo Desert is a social, cultural, and spiritual resource to the Quechan People (see Langton 2003: 94 for a discussion of this in an Australian Aboriginal context). This landscape—labeled a “cultural resource” for the purposes of an environmental review—impacts Quechan society. Cultural resources are more than archaeological artifacts. They are the animals, plants, land, and two-legged ones (humans) that have an inter-related and interdependent relationship with each other (Langton 2003). And the Ocotillo desert contains some of the stories, sacred sites, plants, and animals that the Creator has given the Quechan for their cultural and spiritual benefit.
From a Western perspective, the OWEF project area is rich with archaeology. The archaeological survey for the application had inventoried a variety of sites and features: cremation sites, geoglyphs and rock art, agave processing pits, prehistoric trails (spiritual and utilitarian), ceramic scatters, village sites, spiritual shrines, rock feature sites, and tens of thousands of lithics, including a very rare crescentic (Final Environmental Impact Statement/Final Environmental Impact Report 2012: 3.4-19 – 3.4-20). Many of these sites and artifacts date to being more than 10,000 years old. The OWEF project area is buttressed by and overlaps with several other documented archaeological districts (i.e. In-ko-pah Gorge Discontinuous District, Earth Figures of the California-Arizona Colorado River Basin Thematic Group, and the Yuha Basin Discontinuous District) (Final Environmental Impact Statement/Final Environmental Impact Report 2012: 3.4-33). The Final Environmental Impact Statement documented at least 20,000 knapping stations alone, as just one type of resource found in the OWEF project area (Final Environmental Impact Statement/Final Environmental Impact Report 2012: 3.4-30).
Because this sacred landscape involved so many cultural resources, that were important to several Indian Nations, Quechan and other Tribal governments requested that additional cultural studies be conducted—studies that were appropriate and necessary for the resources involved within an immense project site—and be included in the final environmental review. Specifically, Quechan had requested during tribal consultation that the BLM authorize an ethnography, regional synthesis study, and a prehistoric trails study be compiled for OWEF. The BLM decided to defer that duty for “future research”, outlined in the Memorandum of Agreement (MOA), that would be initiated only after the project was approved and the damage to the Ocotillo desert was irreversible (Final Environmental Impact Statement/Final Environmental Impact Report 2012: 3.4-33) (Memorandum of Agreement 2012: 7).
The denial of these essential cultural studies engrained in me the futility of the tribal consultation process (see discussion below) for this federal application. As the Quechan HPO, I repeatedly made the requests for these needed studies on behalf of the Quechan Tribal Council. I was perplexed, in part, because of the BLM’s continued refusal to conduct this aspect of the environmental review before a final decision was rendered, because the BLM wanted to adhere to an arbitrary deadline. I was also mystified as to why the BLM, in whose charge these resources were held, would decide to postpone cultural research until after a project, which they would approve, would begin to destroy many of these resources. In my eyes, the BLM appeared intent on approving OWEF from the beginning and the BLM facilitated the environmental review to that end.
The Quechan Tribal Government, as well as other Tribal governments, sent in several comment letters to the BLM during consultation, reiterating the cultural and spiritual significance of this landscape. Another Tribal government specifically requested that the whole area, including and extending beyond the OWEF project area, be specifically nominated as a TCP. Quechan provided ample evidence supporting this claim, in the form of comment letters, testimony from tribal elders, admonitions from the Tribal Council itself, and explicit and specific explanations during site visits. However, the BLM claimed that they had not received enough information to nominate the landscape as a TCP (Record of Decision 2012: 24), even though the BLM had closed tribal consultation before the MOA was fully consulted upon.
Unfortunately, the renewable energy application process revealed a legal geography that was imposed upon this cultural landscape. Critical legal geography explores the connection and relationship that law has with space and location, and vice versa. Space and law are a social constructions that are politically charged (Blomley 1994: 52) (Blomley 2004: 92), meaning that the understanding of space and law implicitly reflects the ideology of those that have defined each. These political undertones often create legal-related ramifications for locations (e.g. jurisdiction, property rights, etc…) (Blomley 2004: 92). Likewise, the political nature of law engenders location-related implications within law. Fundamentally, laws are only rightfully utilized when there is proper jurisdiction, which is itself a geographically-charged understanding. The relevant laws (e.g. Section 106 of the NHPA) that were instigated by the environmental review process of OWEF created a legal geography for the Tribal governments and confined their participation and input to the “alien cartography” (Blomley 1994: 54) of the OWEF project area.
Other federal laws, in addition to Section 106, influenced Native involvement in the OWEF environmental review process. The Ocotillo Desert is designated as public lands by the federal government under the jurisdiction of the BLM. The area also falls under the California Desert Conservation Act of 1980, a planning instrument that was implemented, in theory, to protect deserts such as this from development. Any project that is proposed within this legal landscape would implicate many diverse stakeholders—from the relevant Tribal governments as spiritual heirs to the land, to the federal government as manager of the land, to the out-of-state energy developers (in this case, as part of the public seeking to gain their entitlement to this area of public land), to the residents of Ocotillo as helpless bystanders (e.g. they didn’t have separate consultation meetings with the federal government, as the Tribal governments did) who now feel the direct and daily impact (e.g. night flicker effect, wind turbine syndrome) of the running of the turbines.
Because of the restrictions placed on the Ocotillo Desert and because of BLM’s management of the land, the federal government constructed a geography of possession (Blomley 1994: 54) which intentionally ousts the original caretakers of the land, including the Quechan. Quechan’s comments against OWEF during the consultation process, and their subsequent filing of a federal legal action against the BLM and Pattern Energy, are evidence of Quechan’s “geography of opposition” (Blomley 1994: 56) and assertion of an alternative jurisdiction over the contested landscape. The root of the contest is based, in part, upon the claims, legal and otherwise, that each relevant party seeks to assert within this jurisdiction—the federal government’s right, being based upon a Western notion of authoritative right, and the Quechan’s claim, being founded on an assertion of spiritual inheritance from their ancestors.
Sacred Landscape
The Quechan did not rely solely on the term TCP to represent their concerns regarding the OWEF project area. Many of the consulting Quechan members preferred to refer to the area a “cultural landscape,” or, even more aptly, as a “spiritual landscape”. Because the landscape in question is located within the Quechan’s traditional lands, and because it reflects part of their own cultural history, specifically the portion of their Creation Story that references Coyote Mountain, this landscape is an example of what Vine Deloria Jr. called a “sacred geography” (Deloria, Jr. 2003: 121).
Native American spirituality and cultural identity are not so much temporally-oriented as spatially-oriented (Delolria, Jr. 2003). Deloria argues that the overriding modality of understanding a Judeo-Christian sense of religion is temporal, beginning at Genesis through to the end of the world in an apocalypse (Deloria, Jr. 2003: 120). However, Native spirituality and identity is derived from each Indian Nation’s Creation Story and the locations where significant stories took place. To follow an example of Deloria: Native Peoples could not tell you when Creation began, but they can tell you where it took place (Deloria, Jr. 2003: 121).
The implications of this understanding, as applied to the Quechan with OWEF, are spiritually immense. If land is intrinsic to the spiritual identity of an Indian Nation, then loss of traditional lands equates to the loss of their spirituality and cultural identity (Deloria, Jr. 2003). Here, the Quechan fought to protect the Ocotillo Desert not merely because it was mentioned in their Creation Story. They fought to protect Coyote Mountain, Sugarloaf Mountain, and the viewshed heading out to Wii’Shpa (Mount Signal) because those locations, that spiritual landscape as a whole, are inherently part of the Quechan, it is part of their identity—the People and the land are inseparable (Deloria, Jr. 2003: 146).
Beyond that, the Quechan’s ties to this landscape are direct and more tangible. In the Ocotillo Desert are many undisclosed cremation sites. Cremation is the traditional method of interring the deceased back into Mother Earth. Cremation is a rite that Quechan still practices today. In broad generalities, the deceased of the Quechan are cremated while traditional songs are sung from evening until the next morning.
With each cremation site, the ancestors of the Quechan tell their descendants, “This is your land, for we were here.” Most Indigenous view material death as part of the cycle of life. It is viewed as a phase of the spiritual life of a person. The physical ashes of the deceased are returned to Mother Earth, to enrich the soil and to continue the cycle of life for all beings. The songs and prayers of the Quechan loved ones—who have come together in ceremony to help the soul of the deceased to pass onto the next world—have spiritually consecrated each cremation site.
Helping a deceased pass onto the next world, for many Native American communities, is a communal event (Deloria, Jr. 2003). Here, cremation not only ties those mourners to the decedent, but, as a part of an ongoing communal practice and process, it ties the Quechan to their traditional lands—in this instance to the Ocotillo Desert. The cremation ceremonies and the actual cremation sites physically and spiritually tie the Quechan People to that landscape.
Quechan ancestors are in the Ocotillo Desert; the cremation sites there are proof of that. And, preserving the resting places of their ancestors is one reason why Quechan struggled against the destruction caused by OWEF. Deloria provides a salient example of Curley, a Crow Indian chief, whose objection to the sale of Crow traditional lands compelled him to share his view on the consecrated nature of their lands because it holds his ancestors:
The soil you see is not ordinary soil—it is the dust of the blood, the flesh, and the bones of our ancestors. You will have to dig down through the surface before you can find nature’s earth, as the upper portion is Crow. The land as it is, is my blood and my dead; it is consecrated; and I do not want to give up any portion of it. (Deloria, Jr. 2003: 146).
It could be said that this is also how the Quechan feel, in part, about their sacred landscape in the Ocotillo Desert.
Traditional Cultural Property
A Traditional Cultural Property, as defined by Bulletin 38 from the National Park Service (National Register Bulletin 1998), is a historic property that can be included in the National Register of Historic Places (NRHP). A TCP can be associated with the cultural identity of an ethnic group. The cultural importance of a TCP can be passed down, from generation to generation, and relate to the origins of a people. However, the benefit of a TCP determination is that it entitles Indian Nations to tribal consultation, pursuant to Section 106 of the National Historic Preservation Act (NHPA 1966), when a proposed federal undertaking proposes to disturb or destroy any such TCP on public lands.
Relying on a Traditional Cultural Property designation as a method of protecting traditional landscapes is a double-edged sword. TCP’s create a new demarcation that is supposed to validate traditional Indian beliefs about the land (Benson 2011: 1451). The TCP determination option is a progressive property classification that contradicts the American belief that undeveloped, public land is somehow “empty” (Benson 2011: 1451). A TCP designation can potentially protect Native cultural resources. The protection of sacred sites on pubic land is important to many Indian communities because the traditional lands and land use areas of almost all Indian Nations extend well beyond current reservation borders.
However, the disadvantages to Tribal Governments for relying on TCP’s to protect their heritage with the land is that TCP’s, as a legal demarcation, are created and exist within a Western legal paradigm. First, the term “Traditional Cultural Property” is expressed in the English language. As an English term, TCP is, essentially, a foreign concept to all Indigenous languages and cultures. Rooted in Western Archaeology, and providing a very specific legal description, a TCP is very restrictive in the sense that it cannot adequately reflect the holistic and spiritual essence of the Ocotillo Desert that the Quechan seek to defend (Koschade & Peters 2006). In this sense, a Tribal Government utilizing a TCP designation to protect a sacred landscape is much like forcing a square peg from Western Civilization into the circular hole of Indigenous culture. By the time the peg is wedged into the hole—as during the tribal consultation process—the true cultural value of what the Indigenous are trying to protect is stripped of its cultural context and converted into (meaningless) data (Nadasdy 1999: 7).
Second, a TCP is still a property. The general notion of property is that land is owned and managed and the “owner” can exclude others. This understanding is based upon the Western legal concept of dominion and control over nature (Benson 2011). Benson acknowledges that the TCP designation is rather anomalous (Benson 2011: 1453-1454), under Western law, as it attempts to recognize and protect the “traditional culture” of the relevant Tribal governments. But it does so by trying to demarcate that sacred space unto a legal map. Thus, a TCP still exists as a property right, which reflects the authority of the state, and not the Indigenous culture, to create and reinforce power (Howitt & Suchet-Pearson 2006).
The relationship of the Quechan to its traditional lands is not reflected in an American legal concept of property, where landowners can be possess and sell land. The traditional lands of the Quechan hold their culture; it is their culture. Langton reminds us that “Indigenous Peoples’ heritage is not a commodity, nor the property of the nation-state. The material and intellectual heritage of each Indigenous People is a sacred gift and responsibility that must be honoured and held for the benefit of future generations.” (Langton 2003: 93).
The final benefit for a TCP designation and tribal consultation is the mitigation of the cultural resource being “protected” as a TCP. However, a registered TCP can be completely destroyed if a federal project is approved; the damage it sustains would just have to be mitigated. In the end, mitigation, within American environmental law, is a material or physical compensation for cultural damage (Benson 2011). Although environmental mitigation is designed to lessen the impact of damages to resources relevant to a stakeholder (i.e. the cultural resources Quechan identifies with), mitigation issues are always approached from a material or monetary perspective. But, how do you mitigate the desecration of a sacred site? (Benson 2011: 1454). How does one counteract destruction of a landscape that has existed for thousands of years? How do you mitigate the amputation of a People’s spiritual identity?
Quechan and several of the other Tribal governments officially requested that the Ocotillo landscape be nominated as a TCP for inclusion in the NRHP. The BLM stated that they “did not receive sufficient information to fully analyze the entire TCP” (Record of Decision 2012: 24), and the BLM made their own determination that the spiritual landscape was not eligible for inclusion in the NRHP (Final Environmental Impact Statement/Final Environmental Impact Statement 2012: 3.4-16) —although the BLM would “assume” portions of the landscape as NRHP eligible only for the purpose of the project (Record of Decision 2012: 24). This inconsistent stance begs two questions: How could the BLM claim that they received insufficient information when they failed to conduct needed and requested cultural studies on the landscape, which could have provided the information to validate an official TCP nomination to the NRHP, especially when the BLM arbitrarily ended tribal consultation (see discussion below)? And, if the BLM thought that the project area as culturally significant enough to be treated as a TCP, for the purposes of the project, then why didn’t BLM conduct a complete investigation to verify if the landscape was in fact a TCP, or not, before the final decision? Without definitive answers, the Quechan could only assume that the fast-track status of OWEF prohibited the BLM from nominating the sacred landscape as a TCP.
Tribal Consultation
The application for a renewable energy project on federal land, in regards to cultural resources, triggers the requirement of tribal consultation between the lead federal agency and the relevant Tribal governments whose cultural interests are implicated in the development of the project. Section 106, of the NHPA, forces the federal government to consult with Tribal governments (Protection of Historic Properties 2004). In general, tribal consultation is the process whereby a federal agency meets with a Tribal government to understand what impacts a federal action may have on that given Indian community and how any negative impacts may be resolved.
The Quechan Tribal Government appeared to have a fair chance at defending this sacred landscape, as it entered tribal consultation for OWEF. First, tribal consultation seemingly became important to this federal administration. In 2009, shortly after getting elected, President Obama held a “tribal summit”, where he invited representatives from all federally-recognized Tribal governments to discuss government-to-government consultation. He reassured the Tribal governments the he was on “their side” and that he was going to sign a Presidential Memorandum that would improve federal-tribal consultation (Obama 2009). The resulting message from the President from this summit was that engaging in meaningful tribal consultation was a priority for the Obama administration.
Subsequent to the summit, President Obama issued a Memorandum to Heads of Executive Departments and Agencies, dated November 9, 2009, which shared a revised and improved attitude of the federal government toward consulting with Tribal governments. In this memo, he asserted that each federal agency is “charged with engaging in regular and meaningful consultation and collaboration with tribal officials,” and he acknowledged that “[h]istory has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results.” (Obama 2009). These words indicated a departure from previous federal practices of indifference, or aversion, towards working with Tribal governments.
Second, Quechan appeared to have confidence in the federal legal system, and in its own legal resources, to address any intergovernmental conflict. Quechan had much practice defending its lands. During the early 2000’s, Quechan stopped the development of a gold mine through many efforts—in part by defending a North American Free Trade Act claim made by the Canadian-owned proponent (“NAFTA Tribunal recognizes sacred place of Quechan Tribe” 2009), and by facilitating the designation of the mine location, known as Indian Pass, to become an Area of Critical Environmental Concern—which would have strip mined a TCP north of their reservation. In 2008, Quechan successfully sued the Western Area Power Administration for negligent damages to cultural sites on their reservation (Quechan Indian Tribe v. U.S. 2008). Immediately before the OWEF project, Quechan halted the development of the Tessera Solar Energy Project—by means of a federal lawsuit, claiming, in part, that there was lack of meaningful tribal consultation in the project approval decision (Quechan Indian Tribe of Fort Yuma Indian Reservation v. U.S. Dept. of Interior 2010)—which would have been located within the same spiritual landscape of the Ocotillo Desert. Quechan was prepared to protect the Ocotillo Desert from OWEF.
However, one of the main weaknesses of tribal consultation is that it is “processual”, or “procedural”—meaning, it creates merely procedural rights but not substantive rights—and by definition, it has limits (Benson 2011: 1449). Tribal consultation allows Tribal governments to be involved in the application process, but not the final decision, of a federal undertaking. Thus, Tribal governments cannot use tribal consultation to concretely protect a cultural resource, for the ultimate fate of a federal project, and the cultural resources it can adversely affect, is within the sole discretion of the lead federal agency handling the application.
Similarly to what Haskew had depicted (Haskew 2000), the consultation process between the Quechan Indian Tribe and the BLM deteriorated. First, because of Quechan’s successful lawsuit against the BLM regarding the Tessera project, which proved the BLM did not engage in meaningful tribal consultation, the BLM tried to over compensate for this deficiency. Representatives from the BLM Field Office had met with the Quechan Tribal Council on a few occasions. During these meetings, it became apparent in my estimation that the BLM was planning to approve OWEF and the BLM’s main concern was to try to get the Tribal governments, including Quechan, to enter into a Programmatic Agreement (i.e. an cooperative agreement) rather than a Memorandum of Agreement (i.e. treatments imposed upon resources for an approved project, despite Indian objections). This would mean that the BLM was seeking to have Quechan voluntarily sign and enter into an agreement that would mete out the mitigation of their spiritual landscape. The Quechan Tribal Government was adamantly opposed to this, and they made their views expressly clear from the very beginning to past the final decision when Quechan filed a lawsuit to stop the project (Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Department of Interior 2013).
So, the cycle of deterioration would center on the BLM desperately wanting to meet with the Quechan Tribal Council, largely to fulfill their consultation requirements of Section 106. The BLM still hadn’t implemented any of Quechan’s substantial concerns, and they essentially were coming around, yet again, to gain Quechan’s blessing to destroy their own heritage with their land. As a result, the Tribal Council grew increasingly frustrated with each meeting, to the point where council members would bluntly ask the BLM: when will “no” (to development destroying cultural resources) be enough or had the BLM not heard anything the Tribal Council had shared with them? I saw this cycle of frustration grow with each unproductive meeting.
Second, the BLM had not developed mutually agreed upon terms of tribal consultation. Specifically, the consultation needs of the Quechan Tribal Council were not entertained. The tribal consultation meetings included primarily staff members from the local BLM field office which served as the official representatives for the federal government. As the tribal consultation meetings did not produce positive results from the Native American perspective, several Tribal governments, including Quechan, repeatedly asked to consult with federal officials with more authority than the field office representatives—they wanted to consult with then Secretary Salazar.
The Tribal governments’ rationale was simple: Tribal consultation is supposed to be between the Tribal governments and the actual decision maker from the federal government. Since the representatives from the local field office were either unable or unwilling to incorporate the changes the Tribal governments voiced, it seemed that the final decision was above their command. Thus, many of the Tribal governments wanted to meet with the final decision maker during tribal consultation—the one who could either deny the project or make substantial and meaningful changes to it. They were never given that opportunity.
The Quechan Tribal Council asked to meet with Secretary Salazar and they also wrote to President Obama, requesting his assistance and clarification on OWEF and the other fast-track projects. Despite President Obama having issued the November 9, 2009 Presidential Memo and having held the Tribal governments’ summit in 2009, President Obama did not acknowledge or respond to Quechan’s request.
The model and practice that tribal consultation adheres to is a colonized “system of values” that, ultimately, does not serve Tribal governments (Williams, Jr. 1994: 1159). Tribal consultation requirements are either required by law or regulation (e.g. Section 106 of the NHPA) or recommended by Executive Order (e.g. Executive Order #13175). Section 106 requires tribal consultation in instances where federal actions may impact cultural properties. However, Section 106 only demands that these consultation efforts be done “in good faith”. This wording is almost the identical language used in the Northwest Ordinance of 1787, (Northwest Ordinance 1787) which promised that the Indians would be treated with the “utmost good faith” and the “land and property” of Indians would not be disturbed without their consent. However, history is replete with examples of how the federal government took the land, properties, and sacred sites of those relevant Indian Nations without their consent. Neither of these above mandates affords Tribal governments a right or method of enforcement (Haskew 2000).
Although tribal consultation is required on such federal undertakings, there is no mutually understandable definition between the federal government and Tribal governments of what is tribal consultation is, let alone what are consultation best practices (Haskew 2000). In the end, Tribal governments can only trust in the good faith of the federal government to protect Native culture.
Tribal consultations, at best, provide a forum for communication, albeit, many times it’s one-way communication. The meetings and agenda, generally, are arranged and controlled by the lead agency. The Indian leaders and elders can have a forum in which they may share their cultural knowledge about the sacredness and sanctity of a landscape. However, the ultimate decision is reserved completely with the federal government, with no guarantees that any of those cultural values will be protected or taken seriously. In fact, there was a sense of growing frustration among the OWEF Indian participants that the federal government was not taking the Indigenous seriously, that the federal government had no intention of helping the Indians, and that these consultation meetings were pro forma, designed to pay “lip service” to the Tribal Governments (Nadasdy 1999).
A more accurate model of this type of authority that the federal government represents in tribal consultation is that of a royal sovereign (D’Errico 2000). Tribal consultation consists of a feudal serf (i.e. an Indian) pleading for mercy to the royal king (i.e. federal government) that his family farm land be spared from the expansion of the king’s castle grounds. The serf may plead passionately, rationally, and ceaselessly, but the king will make the decision that suits him best.
Arguably, the Native American Graves Protection and Repatriation Act (NAGPRA) section of the MOA may have been the most important post-approval treatment plan that should have been consulted upon. The Indian representatives, including Quechan’s, warned and admonished the BLM, during consultation meetings and on site visits, about the existence of many cremation and burial sites in the Ocotillo desert and how important those sites were to the Indian communities. The BLM had closed tribal consultation before any of the provisions of the NAGPRA section of the MOA could be consulted upon, even during the time the ROD was issued but before the Notice to Proceed (with construction) was authorized—the BLM would not extend tribal consultation despite the requests from Tribal governments. The BLM had drafted the final version of the NAGPRA section in the MOA without Native input.
As a participant in these consultations, I found proceeding with the MOA (total objections to the project aside) before resolving the NAGPRA issues disturbing and even baffling. I was bewildered because the BLM representatives were completely aware of the relevant issues: They were very familiar with the customary practice of Indigenous cremations in the area; they knew the likely possibility of “discovering” cremation sites in this 10,000 acre project area; and they were cognizant of how the Native elders revered each cremation site as sacred. Protecting undisturbed cremation sites in the Ocotillo Desert was the one issue that all the participating Tribal governments completely agreed upon. As a Native myself, I could not fathom why any agency would proceed with a project that could even remotely jeopardize the resting place of someone’s ancestors, all for an enterprise that would produce revenues for a private corporation, albeit in the name of “renewable energy”.
Even though there were several outstanding, major cultural issues before the Record of Decision was issued, the BLM set a firm date for the end tribal consultation. Quechan did not understand why the BLM would arbitrarily close tribal consultation when the cultural issues were unresolved. The only conclusion that Quechan could come to was that since OWEF was a fast-track project it was inevitably going to be approved and that the tribal consultation the BLM facilitated was pro forma to make the FEIS appear complete in regards to cultural resources. And to add insult to injury, Quechan’s many official comments generated during consultation were not included in the FEIS, although all other Tribal governments’ comments were officially recognized.
OWEF was approved at the expense of a spiritual landscape. The BLM closed tribal consultation before all cultural concerns could be addressed: the landscape was not nominated as a TCP, the BLM refused to conduct needed cultural studies for the final environmental review, and the BLM failed to include Indian views on the NAGPRA section of the MOA in tribal consultation. Since it appeared to many Native representatives that the BLM was intent on approving this project, it may not have been realistic for Tribal governments to expect tribal consultation could have resulted in the application being denied. However, tribal consultation ceased before necessary and requested cultural studies were conducted and could have included in the final environmental review. To that extent, Quechan asserted that tribal consultation was incomplete, ineffective, and did not serve the purpose for which it was intended.
Conclusion
Examining the TCP and Section 106 framework and how the federal government uses them to protect the spiritual heritage of Indian Nations, we see an example of the federal government’s binary approach towards handling Indian issues (Ragsdale, Jr. 1992: 79). On one hand, Tribal governments are made a clear stakeholder in an environmental review process for projects even off of their reservation. Tribal governments may nominate a Traditional Cultural Property that may encompass a whole project site. The federal government agencies can make grand promises, specifically to Tribal governments, that they will listen to them and engage in government-to-government dialogue. This is well beyond what ordinary members of the public are entitled to in an environmental review of a federal undertaking.
On the other hand, Tribal governments cannot decide the fate of their sacred sites and cultural landscapes on public lands. The federal government can approve renewable energy projects that adversely impact spiritual landscapes because they have the “moral” authority to approve a project if it is in the “public interest”. The federal government can determine if cultural destruction is occurring, or not, and to what degree. Unfortunately, because the current Section 106 tribal consultation infrastructure is specifically designed not to create an enforceable right for Tribal governments, the decisions and justifications to protect, or not protect, Indigenous spiritual heritages may be unpredictable, unfair, and unjust.
A new approach and a new paradigm need to be created, by both the Indian and federal parties, to preserve securely and concretely all of the Indigenous cultural resources, on and off the reservations—a system that enables and empowers Indian Nations to protect their spiritual identity intertwined with Mother Earth. Incidentally, as the Historic Preservation Officer for Quechan, I had drafted a proactive federal application model that allowed Tribal governments early, pre-application veto power on project siting. However, subsequent to the exercise of an Indian veto, the model would then encourage Tribal governments to work with the federal government on alternative project sites so that federal development would not be hindered in the end. I shared this model with the BLM Tribal Liaison to share with all levels of the BLM and DOI. I never received any feedback from any federal official.
The irony of this predicament is that the federal government is using a non-renewable resource in their pursuit of renewable energy. The ecology of the Colorado and Sonoran Deserts, which includes the cultural resources of its Indigenous, is very delicate. The “teachers”—such as the spirit trails, petroglyphs, cremation sites—that the Ancestors of the Indigenous left in the desert are a finite resource. Even the smallest lithic, taken away from the where the Ancestors left it, is a small piece of spiritual heritage that future generations of Native youth will never have again. Unfortunately, the onslaught of these utility scale renewable energy projects accelerates this spiritual degradation.
The spiritual landscape of Ocotillo Desert can serve as spiritual teacher to the Quechan, but also to the rest of mankind. Deloria reminds us that we all should seek to preserve all sacred sites,
Sacred places are the foundation of all other beliefs and practices because they represent the presence of the sacred in our lives. They properly inform us that we are not larger than nature and that we have responsibilities to the natural world that transcend our own personal desires and wishes. This lesson must be learned by each generation; unfortunately the technology of industrial society always leads us in the other direction. (Deloria, Jr. 2003: 285).
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[i] I would like to offer some notes to the reader about my use of certain words and phrases. I capitalize “Tribal” government(s), “Indian Nation(s)”, “Peoples”, and any other reference to an Indian community’s official involvement in the processes described below. I feel it necessary to reflect parity between the federal government and Tribal governments for the discussions within this article. Additionally, I also capitalize the word “Indigenous”, when referring to the Indigenous of North America and any spiritual and cultural aspects of a given community, much as it is common convention to capitalize “America” when referring to cultural aspects of the people or nation of America. This also is done to reflect a sense of equality between the two cultural and national groups.
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