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

Abstract

Unconventional oil and gas development and the infrastructure it requires are surging in the United States, despite the inconsistent market for fossil fuels. The relative strength of the United States’ unconventional oil and gas reserves is enormous; this nation is home to the second largest reserves of “tight oil” in the world and the fourth largest shale gas reserves, both of which are slated for extensive further development. Although federal and tribal lands make up a relatively small percentage of the total oil and gas producing lands in the country, that percentage becomes significant when analyzed against the other values Congress has designated for these lands. One competing value is the trove of cultural resources of indigenous Americans. These cultural 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. And that is but one example. This article will focus on DAPL and the Standing Rock Sioux tribe’s sacred sites along the Missouri River, along with three other prominent areas where unconventional oil and gas development threatens cultural resources: 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. All are located above large oil and gas reserves proposed for hydraulic fracturing or tar sands development., or along the transport route to move crude oil to a refining location. Despite tribal objections to the siting of the unconventional oil and gas developments in these areas of great cultural value, federal law does little to protect tribal values. The reason for this is a combination of international and domestic demand for the oil and gas reserves, and highly discretionary federal and tribal mineral leasing and cultural protection laws. This Article will begin by defining unconventional oil and gas development and explain the various extraction techniques and processes. Then it will highlight 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. Following this discussion, the Article will explain relevant laws governing oil and gas exploration on federal public lands, including the newly promulgated BLM fracking rule, and on tribal lands. Then, the various laws related to cultural resource protection in the United States will be discussed, with a focus on the intersection between unconventional mineral development and protection of cultural resources in particular. Part V will conclude with some recommendations for reconciling the statutory disconnect.