The Chaco Cultural Heritage Protection Act (Act) takes a necessary step towards safeguarding the cultural heritage and ancestral territories of Indigenous Peoples in the southwest United States. In brief, the Act prevents future leasing or development of minerals owned by the U.S. Federal government located within an approximately 10-mile protected radius around the Chaco Culture National Historical Park. The Act is an opportunity for U.S. Federal law to provide enhanced protections for Indigenous Peoples’ lands and territories.
The Dakota Access Pipeline (DAPL) controversy evidenced that existing U.S. Federal law is insufficient to protect the rights of Indigenous Peoples to their lands and territories for two main reasons. First, the U.S. legal regime does not effectively consider the environmental, social and cultural impacts of development on and near Indigenous territories. And second, the U.S. legal regime does not adequately protect the rights of Indigenous Peoples affected by development particularly by respecting their rights as to free, prior and informed consent (FPIC).
The narrow scope of U.S. Federal processes as to environmental assessments fails to account for the totality of cultural and spiritual significance that the environment holds for the Indigenous Peoples whose ancestors have resided there for centuries. In the Greater Chaco Canyon Region, the lifeways of Indigenous Peoples are literally etched into the surface of the land in ways that cannot be mitigated once destroyed.
The FPIEP’s case study Social Cost and Material Loss: The Dakota Access Pipeline demonstrates how the social risks attendant to DAPL became material losses when the rights of Indigenous Peoples were not respected, particularly their right to free, prior and informed consent (FPIC) as enumerated in the United Nations Declaration on the Rights of Indigenous Peoples. Similar to the Standing Rock Sioux Tribe’s resistance to DAPL, the Tribes and Native communities directly affected by future mineral leasing in Chaco Canyon are ready to protect their lands, territories and resources to the greatest extent possible. This creates tremendous social risks for investors seeking mineral development in the Greater Chaco Canyon Region who do not respect the rights of Indigenous Peoples as enumerated in international human rights instruments.
The FPIEP’s case study concludes, in part, that if investors limit their due diligence to the minimum standards within U.S. Federal law, they will likely fail to consider the developing social risks attendant to development. The FPIC Due Diligence Questionnaire provides a framework for establishing these processes aligned with best practices.
The FPIEP supports this critical piece of legislation and notes that where the Proposed Chaco Protection Zone is 909,000 acres, this legislation only withdraws 316,076 acres of oil, natural gas, coal and other minerals owned by the U.S. Federal Government. Thus, the FPIEP urges investors to take additional steps to align their due diligence processes directly with international best practices:
- to avoid material losses stemming from a failure to assess social risks,
- to protect the whole of the Greater Chaco Canyon Region, and
- to respect the environmental, cultural, social and human rights of the Indigenous Peoples directly affected.
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