The Tribune Democrat, Johnstown, PA

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September 19, 2012

PHOTOS | Keystone pipeline's path cuts across Native American land, history

(Continued)

CUSHING, Okla. —

"There are mass graves where people were buried after dying of smallpox," Thurman said over lunch at Rudolpho's Mexican Restaurant in a strip mall on Cushing's East Main Street. "There could be another buried out there."

His aide for cultural and historic preservation, Sandra Massey, added: "How many times do we have to move? Our dead are never at rest."

Nothing is clear-cut about the web of laws regarding Native Americans.

"There is no legal obligation to work with the tribes," said Lou Thompson, TransCanada's top liaison with Native Americans. "We do it because we have a policy. We believe it's a good, neighborly thing to do." He said the pipeline "is not passing through any tribal lands."

But many Native Americans in the United States — and their lawyers — insist that there are legal obligations under 19th-century treaties that affirmed sovereign status of Native American tribes, which do not pay state or federal taxes and which have their own governing councils and police forces.

Moreover, the more recent National Historic Preservation Act and the Native American Graves Protection and Repatriation Act of 1990 both provide for the protection of Indian burial sites and artifacts. "When it comes to jurisdiction, it's a tough question to answer," said Jennifer Baker, a Colorado-based lawyer who has worked closely with South Dakota tribes. "History has developed so that legal truths get overshadowed by factual realities, and judges tend to mold the law to reflect factual realities."

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A key reality is this: Even after Trans-Canada has secured the right to build from federal and state officials, it still could run into a hitch on — or near — tribal land.

TransCanada is trying to hammer out issues with Oklahoma and Texas tribes without a fight, so it can get on with digging. The company met with tribal leaders on July 11 at the Caddo Nation headquarters in Binger, Okla., and again on Aug. 3 at the Choctaw Inn, a hotel in Durant near the Choctaw tribe's headquarters and one of its seven casinos. Another meeting is set for Tulsa.

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