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Fracking the Sacred: Resolving the Tension between Unconventional Oil and Gas Development and Tribal Cultural Resources

44 Pages Posted: 9 May 2016 Last revised: 31 May 2017

Hillary M. Hoffmann

Vermont Law School

Date Written: March 24, 2017

Abstract

Unconventional oil and gas development is surging in the United States, despite the inconsistent market for oil and gas. By most estimates, if unconventional gas exploration and extraction continues at current rates, the United States could become a net exporter of natural gas by 2020. Although federal and tribal lands make up a relatively small percentage of the total oil and gas producing lands in the United States, that percentage becomes significant when analyzed against the other values Congress has designated for these lands. One of these values is the cultural resources of indigenous Americans. These resources are virtually everywhere; they do not observe political or jurisdictional boundaries, and they are continually threatened by unconventional oil and gas operations.

The recent controversy over the Dakota Access Pipeline (DAPL) and the threat it poses to the cultural resources of the Standing Rock Sioux Tribe illustrates this tension all too well. For cultural resources in the path of the unconventional oil and gas trajectory, like those of the Standing Rock Sioux Tribe, these trends will result in permanent cultural losses. This article will focus on four prominent areas where unconventional oil and gas development threatens cultural resources: the Sacred Stone camp and burial sites along the proposed DAPL near the Standing Rock Sioux Reservation in North Dakota, the greater Chaco Canyon region in northwestern New Mexico and southern Utah, the Bears Ears region of southeastern Utah, and the Blackfeet Reservation in western Montana.

This Article discusses the laws that ostensibly protect tribal cultural resources on federal or tribal lands as well as the multitude of federal and tribal laws governing unconventional oil and gas development on both types of land. It highlights three examples of cultural resources on federal and tribal lands in the United States facing threats from existing or proposed unconventional oil and gas development and explains the relevant laws governing oil and gas exploration on federal public and tribal lands. Finally, it concludes with some recommendations for reconciling the statutory disconnect in a manner that will actually protect tribal cultural resources.

Keywords: hydraulic fracturing, fracking, tar sands, oil and gas, public lands, cultural resources, Indian Country, historic preservation, Dakota Access Pipeline, pipeline, fracking, Bears Ears, Blackfeet

Suggested Citation

Hoffmann, Hillary M., Fracking the Sacred: Resolving the Tension between Unconventional Oil and Gas Development and Tribal Cultural Resources (March 24, 2017). Denver University Law Review, Vol. 94, No. 2, 2017; Vermont Law School Research Paper No. 6-16. Available at SSRN: https://ssrn.com/abstract=2776722 or http://dx.doi.org/10.2139/ssrn.2776722

Hillary M. Hoffmann (Contact Author)

Vermont Law School ( email )

South Royalton, VT
United States
802-831-1205 (Phone)

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