Above Photo: Members of the Lumbee tribe and other opponents of the Atlantic Coast Pipeline marched through Pembroke in Robeson County in late 2016. The ACP would traverse through Native American lands along its route, including in Robeson County. (File photo: Lisa Sorg)
[Editor’s note: After the publication of this story, Greg Werkheiser contacted Policy Watch to say his firm did not represent Dominion and did not make the offer to the tribes. However, the nature of the relationship between Dominion and Cultural Heritage Partners is unclear because neither party would go on the record to explain it. We have corrected any language that says CHP was directly responsible for the offer — that offer came from Dominion, with CHP presenting the document to the tribes — and removed any language that could have been interpreted to imply that CHP represented Dominion in these matters.]
A law firm specializing in cultural and historic preservation presented documents offering American Indian tribes along the Atlantic Coast Pipeline route $1 million each for their tacit support of the controversial project, according to documents obtained by NC Policy Watch.
Cultural Heritage Partners (CHP) approached the Lumbee and the Haliwa-Saponi in North Carolina with a confidential settlement agreement that would pay the tribes if they agreed not to oppose the natural gas project.
According to a draft version of the document dated May 30, 2018, the tribes “would not petition any state or federal regulatory agency or court of law” or “submit additional comment letters, protests or appeals” regarding the ACP. The tribes also “would agree not to hinder or delay the development, construction or operation of the pipeline.”
Half of the $1 million would be paid up front — minus legal fees for CHP — with the balance being paid shortly before the pipeline would begin operating commercially. The amount of the commission could not be confirmed in the draft settlement. Since the terms and even the existence of the agreement are confidential, the contents of the final document are not public.
Several tribal members of the Haliwa-Saponi and the Lumbee told Policy Watch that in mid-June 2018, Cultural Heritage Partners co-founder Greg Werkheiser pressured them to to sign the agreement or risk losing protection for their cultural artifacts. These tribal members asked not to be named because of the sensitivity of the issue, which has divided their communities. Policy Watch also corroborated their accounts with non-tribal members who had knowledge of the issue.
[Update: Wednesday at 3 p.m.: Werkheiser agreed to go on the record with this statement: “Your story gets it completely wrong. My firm, Cultural Heritage Partners, was engaged by two federally recognized tribes to represent them in seeking from Dominion a solution to the tribes’ concerns — not the other way around. Contrary to your characterization of the tribes as helpless groups easily taken advantage of, our clients are sophisticated sovereign nations who hired legal counsel to assert their rights and who can decide for themselves how best to protect their heritage.”]
CHP has a tribal specialist on staff, Earl Evans. A member of the Haliwa-Saponi, Evans was serving on the Tribal Council at the same time he was trying to persuade his fellow members to support the confidential agreement.
Evans did not respond to requests for comment, but one Haliwa-Saponi tribal member who was present for the vote said Evans did not fully disclose the extent of his relationship with CHP while voting as a tribal council member. Evans had previously worked on tribal housing issues for CHP.
Evans was reportedly not the official point of contact between CHP and Haliwa-Saponi, so theTribal Council allowed him to vote on the agreement. He voted in support of it, but the final tally was 6-5 against.
Evans also used hard-sell tactics on the Lumbee, according to two tribal members. (He also co-wrote with CHP co-founder Marion Werkheiser an article on the firm’s website entitled “Top Ten Considerations When Engaging with American Indian Tribes.” Among the recommendations: “Thoughtful gifts can go a long way” and “Listening is really crucial.”)
And while the Lumbee tribal council voted to approve the agreement, the group’s constitution allows only the tribal chairman to enter into legal contracts; Chairman Harvey Godwin Jr. opted not to.
Consultation required; benefits to tribes questionable
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 American Indians live along the 160-mile leg of the pipeline in North Carolina.
Greg Werkheiser, who co-founded CHP with his wife, Marion, said he could not comment on the existence of any agreement, but issued a statement via email: “Our firm appreciates the opportunity to represent tribes and other parties around the country to protect historic places that matter to them. Among our services, we help our clients achieve creative and substantive solutions through the federal agencies’ Section 106 process and through direct engagement with the parties. We take our professional responsibilities seriously and cannot comment on the specifics of any particular matter.”
“Section 106” is a portion of the National Historic Preservation Act that deals with federally funded, approved or licensed projects, including natural gas pipelines. It requires federal agencies, like the Federal Energy Regulatory Commission (FERC), to consult with tribes and other organizations in order to protect cultural sites and artifacts, or to mitigate harm inflicted by projects.
In a statement via email, Dominion Energy spokesman Aaron Ruby declined to elaborate on the agreement or its connection to CHP. “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.”
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. Most of the pipeline inspection and construction jobs have been outsourced to ACP contractors based in Texas, Louisiana and Oklahoma, according to the project website.
The state’s Commission on Indian Affairs, Commerce Department and Department of Public Safety all provide similar job training and emergency preparation services 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.
Confidential private agreements and little federal oversight
It’s unclear which, if any, tribes agreed to the pact. As parties to the agreement, neither Dominion, nor the signing tribes can publicly acknowledge it. The law firm Cultural Heritage Partners could not publicly acknowledge it, either. 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, use that identical language in their filings with FERC to say that their issues with the ACP had been resolved.
“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 intervene. But if a government agency had conducted itself similarly, it might have violated the international standard of Free, Prior and Informed Consent adopted by the United Nations Declaration on the Rights of Indigenous People in 2007. It states there should be no “coercion, intimidation or manipulation,” in negotiating with Native American tribes and other indigenous groups.
The situation also appears to show how the FERC has failed to adequately confer 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. That failure creates a policy vacuum for utilities and firms like CHP to 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.
But those policies rarely 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 are savvy in their dealings with FERC, 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 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 or law firms— in this case, Dominion and CHP — to negotiate reductions in impacts or increased mitigation. But unlike FERC communications, these negotiations — such as those that produced the confidential settlement agreement — would be presumably private, with no watchdog oversight.
There is also implicit political pressure on some tribes to acquiesce to these energy projects by remaining quiet. In January 2018, the Monacan and Rappahannock finally received their long overdue federal recognition, which endows them with certain legal rights, services and standing with the U.S. government. It is a recognition that the tribe would not want to jeopardize.
“A tribal person has fought for decades to be recognized for who they are,” said Beth Roach, a member of the Governor’s Advisory Council on Environmental Justice in Virginia. She also belongs to 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.”
Preservation work beyond the ACP
As part of it its work in arts, antiquities and tribal issues, Cultural Heritage Partners has worked collaboratively with the natural gas industry. In 2013, CHP formed a nonprofit, LEAP (Leaders in Energy and Preservation), formerly called the Gas and Preservation Partnership. In its federal tax returns, LEAP says its mission is to “work collaboratively and pragmatically with both the energy industry and the preservation community to assist in the identification and proper management of historic and cultural resources while encouraging efficient exploration and development of energy reserves.”
LEAP’s mailing address is in Lexington, Ky., where board chairman Charles Niquette, an archaeologist who also works in real estate, resides. However, the phone number connects to Marion Werkheiser of CHP.
LEAP’S board is composed of not only archaeologists but also representatives from Shell, TransCanada, the Hess Corporation and Southwestern Energy. The nonprofit has worked in Ohio, where fracking is common, on archaeological sites near the fracking operations in the Utica shale belt.
The Utica shale belt is the source for fracked natural gas that would flow through the MVP (Mountain Valley Pipeline) Southgate project — the same project that Cultural Heritage Partners is now intervening in on behalf of at least one North Carolina tribe
According to a 2018 filing with FERC, Marion Werkheiser filed a motion to intervene on behalf of the Sappony Tribe, a state-recognized tribe based in Person County. Tribal lands extend west and could be disrupted by the proposed MVP Southgate project. That pipeline would extend from Virginia into Rockingham and Alamance counties, ending near Haw River.
In a letter dated Nov. 16, 2018, Marion Werkheiser asks for “face-to-face meetings” with officials that have decision-making authority. 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 CHP has not contacted him, but that he has filed documents with FERC explaining that the Occaneechi-Saponi would be “the most highly affected tribe” 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 meeting, Commissioner Jeff Anstead, vice-chairman of the Haliwa-Saponi tribe, told a project representative that “the indigenous people are the original landowners.”
And 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.”
Although the Lumbee turned down the deal with Dominion, the decision nearly created a constitutional crisis within the tribe. “It didn’t just create divisiveness between the tribes, but within the tribe,” Donna Chavis said. “It was a strategy, not birthed by Cultural Heritage Partners, but they capitalized on it.”