For the first time, both the Bureau of Land Management and Forest Service have moved public hearings and tribal consultation entirely to a virtual format, despite tribal protests that the meetings are inaccessible to the Indigenous communities most likely to be impacted by the projects in question. The lack of internet and cellphone service makes participating in virtual hearings difficult for many Indigenous communities, which are already severely stressed by the COVID-19 pandemic.
But federal land agencies are forging ahead with projects that would have major environmental impacts in New Mexico and Alaska, even though tribal governments, Alaska Native corporations, governors and lawmakers have asked them to suspend planning processes until the pandemic is over.
Virtual public meetings and consultation on oil and gas expansion in Alaska’s North Slope caused frustrating technical difficulties for the Native Village of Nuiqsut — everything from moderators muting participants to dropped calls and bad connections. In Nevada, both in-person and virtual meetings on the Yellow Pine Solar Project were canceled in May; instead, the BLM posted PowerPoint presentations online, telling the public to email in any comments or questions. Other meetings planned for later this spring and summer — over a proposed pipeline corridor in Wyoming and sagebrush restoration and conservation in Idaho — will be pre-recorded and posted on the BLM website, with no interaction with agency employees. “This is another way that tribal consultation is being manipulated,” Natalie Landreth (Chickasaw Nation of Oklahoma), senior staff attorney at Native American Rights Fund, said in an interview. “Consultation has to be meaningful in that it has to provide the tribe an ability to give input. It cannot be lip service, or they can sue you. This is a legal obligation. We’ve been surprised by this administration winnowing it down further and further.”
Richard Smith Sr., the tribal preservation officer for Pueblo Laguna, said the pueblo opposed the decision by the BLM and the Bureau of Indian Affairs to use virtual public meetings. Smith virtually attended a May 15 public hearing on a plan to expand oil and gas exploration in the Chaco Canyon region. During the hearing, which included BLM officials and a third-party moderator, Smith repeated requests for a face-to-face, government-to-government consultation, and said that they had not yet received a response. On May 20, Interior Secretary David Bernhardt said he would agree to extend the comment deadline 120 days beyond the original May 28 deadline. “It is not possible to meaningfully convene and internally develop comments at this time when we are at capacity, focused on critical and life-threatening measures,” Smith said.
In an emailed statement, Bureau of Land Management spokesperson Derrick Henry said the virtual meetings in Nuiqsut, Alaska, had a higher turnout than past in-person meetings. “It is important to maintain a capable and functioning government during the COVID-19 outbreak,” Henry said. “To achieve this, the BLM is exercising its technology capabilities where possible to ensure connection and service to the public, and to limit the exposure of our employees and the public we serve.”
“It’s too important an issue to be talking over a Zoom meeting. We need to have it face-to-face.”
Federal agencies have ignored repeated requests from tribes for face-to-face meetings, says Martha Itta, tribal administrator of the Native Village of Nuiqsut. Itta says the BLM has not replied to her request for in person consultation on the Willow Master Development Plan, which could produce 590 million barrels of oil from the North Slope over a 30-year period. Instead, the BLM held six virtual meetings in April that included legally mandated Alaska Native consultations on the potential impacts of energy development on wildlife like caribou and salmon that are critical to tribal resident’s way of life. Because of COVID-19 concerns, tribal offices were closed, meaning Itta couldn’t get the word out, and many elders were unable to contribute to the meetings. “We’ve made many requests for proper consultation for answers in regards to our concerns,” Itta said. “We feel that they ignore us, and cater to for-profits and oil companies regardless of the legitimate concerns and requests of the community who deals with significant impacts on a daily basis.”
That echoes Joel Jackson’s experience. The president of the Organized Village of Kake, an Alaska Native village of around 600 near the Tongass National Forest, said that, at the beginning of the pandemic, the U.S. Department of Agriculture gave nine Alaska Native tribes roughly two weeks to comment on a final plan to open the Tongass to more logging. Such a short deadline for comment is remarkable for a 19-year-old conflict: The Village of Kake had previously sued over the plan, arguing that the state of Alaska did not provide a good reason at the time for requesting the policy reversal, and the case was settled in Kake’s favor. However, logging interest in the Tongass was renewed under the Trump administration in 2018, when the state of Alaska re-petitioned the government for an exemption from the Roadless Rule.
In April, the USDA asked Alaska Native tribes for a virtual tribal consultation with Undersecretary for Natural Resources and Environment Jim Hubbard, even though a number of tribal leaders refused to participate out of protest. “I didn’t view it as true consultation,” Jackson said. “I stated that right off the bat. I was there to let them know personally.” He decided to join, however, to have his protests on the record. “It’s too important an issue to be talking over a Zoom meeting. We need to have it face-to-face.” For now, the Forest Service is moving forward with creating management plans and assessing their potential environmental impacts. The agency’s preferred plan, which would open all 9.2 million acres to logging, including 165,000 acres of old-growth forest, is expected to finish by June, despite the tribes’ requests.
A USDA spokesperson said that Hubbard met in person with tribal leaders in November, and that another meeting, scheduled for March 31, was canceled because of the pandemic. “Given the anticipated timeline of a summer 2020 decision on the Alaska Roadless Rule combined with health and safety considerations, a virtual session was the only option to ensure a consultation at the time it occurred.”
Tribal consultation was enshrined in U.S. federal law in the 1960s. The practice was reaffirmed and expanded by the Clinton, Bush and Obama administrations. Today, nearly all federal land agencies have tribal consultation policies. Consultation requirements are outlined in the United Nations Declaration on the Rights of Indigenous Peoples and in several state and federal laws, as an extension of tribal sovereignty. “It’s based on these common-law trust principles, like when you’re holding someone else’s property in trust — you can’t just do anything you want with it,” Gussie Lord (Oneida Nation of Wisconsin), director of tribal partnerships for Earth Justice, said. “You have to take care of it, and preferably in the way the property owner wants.”
In theory, consultation is an opportunity for discourse between leaders of tribal governments and the federal government on projects that would impact tribal resources. But, Lord says, that’s not always the reality. In 2019, the Government Accountability Office examined the tribal consultation process and reported that tribal officials did not believe agencies considered their input, and that consultations started too late. The watchdog office offered 22 cross-agency recommendations, only one of which has been fulfilled. “What often happens is the federal government decides to take an action and then inform the tribe,” Lord said. “And then if the tribe disagrees with it, often they’ll say, ‘Great, thank you very much, there, we’ve consulted,’ and then move ahead with their planned action. There’s really a feeling in Indian Country that consultation is often a box-checking exercise.”
One of the basic values of tribal consultation is the sense of accountability, said Kevin Washburn (Chickasaw Nation), former assistant secretary of Indian Affairs under the Obama administration. Accountability is made more apparent when everyone is in the same room. “Tribes need to know that the federal official is genuinely interested in creating good policy. If trust does not exist, the communication won’t be effective. To be honest, there is little trust between the current administration and Indian Country right now. This will make virtual consultation far less effective.”
According to the policies of both the BLM and Forest Service, tribes must mutually agree on whether any meeting constitutes adequate consultation. However, there is little accountability in the process for when agencies fall short. During the public comment stage, as in the Chaco hearings, for example, a tribe has little recourse if it feels it is not being heard. For a successful lawsuit, tribes must point to a finalized plan and prove their concerns were not taken into account.
A myriad of congressional members, nonprofits, state politicians and local officials have supported the Navajo Nation, pueblos and Alaska Native villages in their request for an extension of public debate during the pandemic.
“People are being asked to respond to an arbitrary deadline during the worst public health crisis in decades,” said Paul Reed, preservation archaeologist with Archaeology Southwest, who has worked alongside tribal governments in the Chaco Region since the project emerged in 2014. “I think it’s fair to say that it has damaged any trust that might have existed before they chose to go to this format.”
Jackson said it would be disappointing if the Forest Service proceeds with a plan that ignores tribal input, and he emphasizes the core importance of protecting salmon-bearing waterways and the tribe’s connection to the lands and waters of the Tongass. If necessary, the Alaska Native community plans to pursue other avenues to protect their way of life, Jackson said. “It won’t be over by a long shot.”
Anna V. Smith is an assistant editor for High Country News. Email her at annasmith@hcn.org or submit a letter to the editor. Follow @annavtoriasmith
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