[Editor’s note: The original version of this story contained some important and inadvertent factual errors that NC Policy Watch deeply regrets.

The first error stated, incorrectly, that the law firm Cultural Heritage Partners acted on behalf of Dominion Energy in approaching Native American tribes and offering them the proposed settlements described in the story. This was incorrect. Cultural Heritage Partners represents tribes, not Dominion Energy.

The second error included Cultural Heritage Partners in a list of “project managers” for the Atlantic Coast Pipeline. This too was incorrect. As noted above, Cultural Heritage Partners is a law firm that represents Native American tribes.

The third error characterized Cultural Heritage Partners as one of the “parties to the agreement” between the pipeline owners and the tribes. This was also incorrect. Again, Cultural Heritage Partners represents potential parties to the agreement referenced in the story.

Finally, the story incorrectly characterized Cultural Heritage Partners as having “ties to the natural gas industry” and “aiding the energy industry” on the MVP Southgate pipeline project. In fact, Cultural Heritage Partners represents the Saponi Tribe in proceedings regarding MVP Southgate. Although Cultural Heritage Partners worked with the natural gas industry to form a nonprofit known as Leaders in Energy and Preservation (LEAP), it has assured Policy Watch that “LEAP is a charitable nonprofit organization that develops best practices for energy companies to identify historic properties that may be in the path of their development and to avoid impacting them.”

A statement from Cultural Heritage Partners has been appended at the end of the story.

We sincerely apologize to Cultural Heritage Partners and its clients and to our readers for any confusion or misimpression from these errors.]

 

A confidential draft agreement between Dominion Energy and four Native American tribes in North Carolina and Virginia offered $1 million to each tribe if it “would agree not to hinder or delay the development, construction or operation” of the Atlantic Coast Pipeline (ACP).

A draft version of the document dated May 30, 2018 (see above) states that the tribes would receive the money in exchange for agreeing not to petition “any state or federal regulatory agency or court of law” and not to “submit additional comment letters, protests or appeals” regarding the ACP.

Half of the $1 million would be paid up front, with the balance being paid “30 days prior to the requesting the FERC’s [Federal Energy Regulatory Commission’s] authorization to place the ACP into commercial service (sic).” Since the terms and even the existence of the agreement are confidential, the contents of any final document, if one exists, are not public.

In North Carolina, the Haliwa-Saponi Tribal Council voted 6-5 against signing the agreement, according to a tribal member familiar with the decision. The Lumbee tribal council voted to approve the agreement, but the group’s constitution allows only the tribal chairman to enter into legal contracts; Chairman Harvey Godwin Jr. opted not to.

Members of the Haliwa-Saponi and the Lumbee tribes tell differing stories about the events surrounding consideration of the proposed agreement. Some told Policy Watch that they felt pressured to sign the agreement, while others said they did not feel pressured.

Donna Chavis, a Lumbee tribal member, opposed the agreement. “So much has not changed,” she said. “Over time, Native Peoples have been manipulated and lied to. It’s clear that’s what was happening. It was subterfuge.”

Jan Lowry, a tribal council member of the Lumbee told Policy Watch that “No one twisted our arms or took advantage of us in any way.”

It’s unclear whether any Virginia tribes signed an agreement. The draft provided that neither Dominion, nor any signing tribes could publicly acknowledge it. However, the draft contains boilerplate language for the tribes to use when communicating with the FERC and the governors of their respective states. Both Virginia tribes, the Monacan and Rappahannock, have used that exact language in their filings with FERC to say that their issues with the ACP have been resolved.

 

The efforts to win settlements with the tribes demonstrate their importance in garnering public support for the controversial $7 billion project. The ACP would run from a fracked natural gas operation in West Virginia and travel more than 600 miles, through Virginia and eight counties in eastern North Carolina, and could extend into South Carolina. An estimated 30,000 Native Americans live along the 160-mile leg of the pipeline in North Carolina.

In a statement via email, Dominion Energy spokesman Aaron Ruby declined to elaborate on the agreement. “We have a profound respect for tribal communities and their history in this region, and we’ve built strong relationships with them based on trust and mutual respect,” he wrote in the statement. “Out of respect for the tribes and our relationship, we will not discuss our ongoing consultations. We value their perspective, and we’ve made a sincere effort to address their concerns.”

Some of the provisions in the draft settlement are already covered by state programs and agreements, and arguably add little value for the tribes. For example, Dominion offered to “designate a cultural heritage professional” who “shall meet once with each Tribe within 30 days of the agreement to answer questions about ACP and to exchange additional information known to the Tribes about the location of cultural resources in the anticipated path of the ACP.”

Dominion and its contractors are already bound, however, by a formal programmatic agreement with state and federal agencies and FERC that details what must occur if cultural materials or human remains are discovered.

Dominion also agreed in the draft to “collaborate to identify candidates from among the tribes’ membership who could participate” in the utility’s job training programs and to convene “emergency preparedness and planning and coordination meetings in the Tribes’ communities.”

According to ACP documents, the project is expected to directly create only 52 jobs after construction is complete. Many pipeline inspection and construction jobs have been outsourced to ACP contractors based in Texas, Louisiana and Oklahoma, according to the project website.

North Carolina’s Commission on Indian Affairs, Commerce Department and Department of Public Safety all provide similar job training and emergency preparation services to those that are laid out in the draft agreement.

The draft agreement also allows for Dominion and the tribes to “work together to identify other opportunities for developing positive long term working relationships.” The nature of those relationships is not spelled out.

Although the Lumbee turned down the deal with Dominion, the decision nearly created a constitutional crisis in tribal government. “It didn’t just create divisiveness between the tribes, but within the tribe,” Donna Chavis said.

In Virginia, the Monacan tribe had initially opposed the ACP, according to officials with the Virginia Governor’s Advisory Council on Environmental Justice. Council member Mary Finley-Brook said that although the previous chief had opposed the project, on May 30, 2018, the new Monacan Tribal Chief, D. Dean Branham, sent the letter to FERC with the same wording as directed in the May 18, 2018 confidential agreement.

“This is a definite pattern that’s only beginning to be uncovered,” said Finley-Brook, who is also an associate professor of geography at the University of Richmond. “The tribes are concerned about speaking out. We haven’t had the conversations yet to know how widespread and historical this all is.”

Since these are private contractual agreements, there is little recourse under American law for third-parties to object or intervene. A document entitled “Free, Prior and Informed Consent” adopted in the United Nations Declaration on the Rights of Indigenous People in 2007 spells out standards for governments to abide by in such matters. It outlines how to negotiate with Native American tribes and other indigenous groups to prevent them from real or perceived “coercion, intimidation or manipulation.”

The situation raises questions as to whether the FERC has adequately conferred with tribes about their concerns over the ACP. While federal law requires FERC to consult with federally recognized tribes “government to government,” there is no such requirement for state-recognized tribes, like the Haliwa-Saponi, or those with only partial recognition, like the Lumbee – thus creating a potential policy vacuum that utilities could exploit.

A FERC spokesperson said the commission “welcomes participation in our pipeline review process from state-recognized tribes, landowners and all other stakeholders” who want to provide information to assist with environmental analyses of pipeline proposals. A May 2002 Interagency Agreement also requires “early coordination” of these environmental and historic preservation reviews. FERC has also hired a tribal liaison.

Questions, however, have been raised as to whether those policies achieve their goals. E&E News reported last summer that the federal Advisory Council on Historic Preservation asked FERC to be more collaborative with tribes. That includes identifying early on the tribes that “may have a religious or cultural attachment to properties affected by a pipeline,” the article read. Several tribes, including the Cheyenne River Sioux, have complained that FERC has excluded them from pipeline review; still others have characterized the process as “dysfunctional,” according to the E&E News article.

Even if tribes can wield their power in their dealings with FERC, some critics believe the commission can — and often does — fail to sufficiently collaborate with them. For example, Finley-Brook said that FERC communicated with 17 federally recognized tribes about the ACP, but some of them were located thousands of miles from the pipeline route. Communication with state-recognized tribes generally involved form letters, she said.

Given FERC’s shortcomings, it would be tempting for tribes to work around FERC and go directly to the project managers, like Dominion, to negotiate reductions in impacts or increased mitigation. But unlike FERC communications, these negotiations — such as those that produced the proposed confidential settlement agreement — would be presumably private, with no watchdog oversight.

Some tribal members have expressed their belief that there can be implicit political pressure on tribes to acquiesce to energy projects like the ACP by remaining quiet. “A tribal person has fought for decades to be recognized for who they are,” said Beth Roach, a member of both the Governor’s Advisory Council on Environmental Justice in Virginia and the Nottoway Tribe. “Imagine centuries of paper genocide, being culturally stamped out. Then someone is asking, ‘We need you to be the voice of opposition.’ That’s a heavy lift. After they’ve been acknowledged, we’re saying, ‘OK, now speak up against the biggest corporate entity there is.”

Construction on the ACP is on hold because of legal challenges filed by environmental groups. However, a second pipeline, the MVP Southgate project, is proposed to extend from Virginia and run through parts of Rockingham and Alamance counties, ending near Haw River. Some tribal lands are also near that route.

A state-recognized tribe based in Person County, the Sappony, has filed a motion to intervene in the FERC proceeding considering MVP Southgate. Tribal lands extend west and could be disrupted by the proposed MVP Southgate project. Dorothy Crowe, tribal chairwoman of the Sappony, could not be reached for comment.

Tony Hayes is the tribal chairperson of the Occaneechi Band of the Saponi Nation, based in Pleasant Grove, near Burlington. He also sits on the state Commission on Indian Affairs, which as a group formally opposed the ACP. Hayes said he has filed documents with FERC explaining that the Occaneechi-Saponi would be “the most highly affected tribe” by the MVP Southgate project based on current, although still preliminary, routing. The MVP Southgate pipeline would run about two miles from tribal headquarters in Alamance County.

“I’m very, very concerned that no one has replied to my email numerous requests for consultation,” Hayes told Policy Watch. “But we’re not going away. We’re keeping up with the federal government.”

Several members of the Commission on Indian Affairs are already skeptical of the MVP Southgate and NextEra Energy, which would co-own the project. According to minutes from a September 2018 commission meeting, Ryan Emanuel, a Lumbee and commission adviser, told NextEra representatives that the commission needs assurance that FERC and NextEra will “seriously weigh the ethical, religious, spiritual, cultural economic and environmental concerns.”

At that meeting, Commissioner Jeff Anstead, vice-chief of the Haliwa-Saponi tribe, was vocal about protecting Native American heritage and land from potential damage these projects could incur. He told an MVP Southgate project representative that “we — the indigenous people — are the original landowners.”

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[Editor’s note: The following statement was submitted to NC Policy Watch by the law firm Cultural Heritage Partners after the original version of this story was published. While both NC Policy Watch and its parent organization, the North Carolina Justice Center, deny many of the claims contained therein, we are publishing it here, unedited, in the interest of allowing Cultural Heritage Partners to have its full say on this story.]

Statement of Cultural Heritage Partners

This is Not Good Journalism

We write, with heavy heart, to detail the corrections that are long overdue for the piece published by North Carolina Policy Watch on January 9, authored by Lisa Sorg. The article stated that our firm is a big energy developer (a project manager of the $7B Atlantic Coast Pipeline project) that represented other big developers in bullying, threatening, and trying to pay off vulnerable Native American tribes to support a plan that would destroy their cultural heritage.

NC Policy Watch now admits that the opposite is true: the tribes hired our firm to assert and defend their rights in negotiations opposite the pipeline developer.

To our knowledge, Ms. Sorg never contacted the tribal leaders chosen by their members to manage consideration of these issues. The people she does quote are uninvolved and uninformed. As a result, Ms. Sorg mischaracterizes the actions, words, and intentions of persons rather than presenting the truth.

So problematic is Ms. Sorg’s falsehood-filled reporting on this matter that her editor quietly pulled the article from the website without telling readers why. Top elected tribal leaders with direct knowledge of their tribes’ positions regarding the Atlantic Coast Pipeline have told NC Policy Watch in writing just how wrong Ms. Sorg got the story:

• “Your article…is a complete fabrication. The numerous falsehoods and character attacks—both direct and implied—bear no relationship to the experience of our Tribe when we engaged CHP as our counsel to advance our rights to consultation…”
• “In addition to many inaccuracies about the subject matter of our relationship with CHP, your article’s negative characterizations of CHP and their interactions with the Haliwa-Saponi Indian Tribe are completely wrong.”
• “No one came to us to convince us to support the pipeline. As a current member of the Tribal Council of the Lumbee Tribe of North Carolina, I am disappointed that your journalist would fail to contact the members of our Tribal Council Executive Committee that most recently addressed consideration of steps to take regarding [this matter].”
• “I am also very offended that your article infers that we need some kind of “watchdog” oversight as if we can’t think for ourselves.”
• “The article your reporter Lisa Sorg authored…is riddled with many inaccuracies. I served on the… Tribal Council…I can say that from my personal experience that your article gets its major points wrong beginning with the title. No one (from Cultural Heritage Partners or anywhere else) has ever come to [the Tribe] during my time on Council offering to “buy” our silence.  No one has offered money to our Tribe to gain Tribal Council’s support for [the pipeline], or to keep our Tribe from opposing it. No one has tried to pressure, coerce or manipulate us to sign anything in order to prevent risk to our cultural resources.”
• “It is my hope that you will respect our Tribe, and one of our greatest advocates, by removing the false negative assertions from your article, or preferably, retracting the article and issuing an apology to the CHP team. They have acted in earnest and with integrity ……”

Today, long after publishing the deeply flawed piece, NC Policy Watch is issuing “corrections” and an apology. But even this apology is not fully honest with readers because it does not identify all the substantive errors they need to correct. It is publishing yet another version of the story that continues to be both factually wrong and culturally insensitive to Native American tribes.

We do not operate multi-billion-dollar energy projects; we are a 14-person law and policy firm founded by a husband-wife team that loves history and deeply respects our Native American clients. We do not pay or abuse our own clients; we represent their interests vigorously, and with the utmost respect and integrity. And, while NC Policy Watch’s article relies upon and promotes racial stereotypes of Native Americans, our clients are not children who need supervision by wise white people looking out for their best interests; they are sophisticated sovereign nations with their own elected governments who can make tough decisions. We are proud and honored to represent tribes to advance their rights to consultation on the Atlantic Coast Pipeline.

NC Policy Watch’s biased reporting on this issue libelously misrepresents the character and mission of our firm and our work. It does a disservice to reporters who care enough to do the research first and the writing second. Their reporting continues to infantilize tribes by suggesting that they must be monitored by non-Native third parties because they can’t be trusted to think for themselves. Printing falsehoods and advancing culturally insensitive arguments to support their agenda diminishes the credibility of the North Carolina Justice Center (which sponsors NC Policy Watch) and harms the very people that organization purports to empower.

We welcome and encourage inquiries regarding our firm, our commitment to our clients, and our experience with cultural heritage and tribal issues. Our website is www.culturalheritagepartners.com. The firm’s Managing Partner Marion Werkheiser can be reached at 703-489-6059 or Marion@culturalheritagepartners.com