Berman & Asbel, LLP

Pipeline Paths Meet Opposition from Native American Nations in Pennsylvania

Pipeline construction in Pennsylvania is facing significant opposition from local municipalities, individual landowners, citizens groups, and Native Americans. Chief Carlos Whitewolf of the Northern Arawak Tribal Nation of Pennsylvania and Ceremonial Chief Chuck Diamond of the Lenape Nation drew attention to the potential impacts the Atlantic Sunrise pipeline project and the PennEast pipeline, respectively, will have on Native communities in the pipelines' paths.

Pennsylvania has no specific legislation governing Indigenous remains or artifacts, but the federal government has several regulations designed to address such issues:

  • The Native American Graves and Repatriation Act of 1990
  • The Antiquities Act of 1906
  • The National Historic Preservation Act of 1966
  • Section 106 of the National Historic Preservation Act of 1966
  • National Environmental Policy Act of 1966
  • Protection and Enhancement of the Cultural Environment of 1971 (Executive Order 11593)
  • Archaeological and Historic Preservation Act of 1978
  • American Indian Religious Freedom Act of 1978
  • Indian Sacred Sites (Executive Order 13007)
  • Archaeological Resource Protection Act of 1979

Despite Pennsylvania once being home to a diverse multitude of Native American nations, today, there are no federally or state-recognized tribes in Pennsylvania. When FERC reached out to Native peoples for purposes of holding a public comment hearing, many of the Native peoples contacted did not even live in Pennsylvania. Chief Whitewolf expressed his disappointment in not being contacted by the agency.

As with most laws, the issue comes down to standing. Who has standing to assert his/her rights under the federal regulations? Under the Native American Graves and Repatriation Act, any lineal descendant has a right to assert a claim, any Native Hawaiian Organization, or any Indian Tribe Official who is the principal leader of the tribe or designated as the representative of the tribe.

The Antiquities Act provides protection for historical properties and monuments and requires a permit for their removal. The National Historic Preservation Act contains a special provision (beginning at 16 U.S.C. 470a(d)) for Indian tribes to demarcate cultural, religious, or historically significant property or real estate to be included on the National Register; it also permits tribes to take over State Historic Preservation Officer functions. Section 106 of the National Historic Preservation Act is triggered whenever there is an "undertaking" by a federal agency that could affect a historic property. Any federal action or undertaking can be carried out by a state or local agency, provided that the state agency has jurisdiction to carry out the action on behalf of the federal government. For example, Pennsylvania's DEP has jurisdiction to carry out NPDES permitting on behalf of the federal government, and therefore, any permitting required on a historical site will trigger the NHPA, even though the state agency is the acting agency. Further, the NHPA requires that the undertaking agency consult with any tribal government that has taken over State Historic Preservation Officer functions, or with the State Historic Preservation Officer.

Executive Order for the Protection and Enhancement of the Cultural Environment also requires federal agencies to survey all federal lands nominate properties to the National Register.

The Archaeological and Historical Preservation Act of 1974 provides for the recovery and preservation of historical and archaeological information, relics, and specimen that might be lost or destroyed in the construction of dams and reservoirs.

The National Environmental Policy Act requires federal agencies to prepare environmental impact statements for each federal action having an effect on the environment. NEPA could be used in conjunction with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national original in their programs or activities. Title VI allows persons to file administrative complaints with federal departments and agencies alleging discrimination by financial assistance recipients.

The American Indian Religious Freedom Act and Executive Order for Indian Sacred Sites protects and preserves American Indians' right to freedom of belief, expression, and exercise of traditional religions; permit access to and ceremonial use of Indian sacred sites on federal lands, and to avoid adversely affecting the physical integrity of such sacred sites.

Pipeline companies routing their pipelines through Native American lands will find their progress hampered by the myriad of federal regulations and approvals that must be met before construction can begin. The best possible solution in such a scenario is to meet early and often with Native nations and their leaders to discuss the possible impacts construction will have on the Native sites. It would also be in everyone's best interest if a tribal representative who knows the history and practices of the tribe is in constant contact with the pipeline company in the event of an "inadvertent discovery" of Native artifacts. In the end, regulations concerning Native American sites may require re-routing the pipeline's path through non-Native territories.

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