Pop singer Britney Spears’ quest to end the conservatorship that handed control over her finances and health care to her father demonstrates the double-edged sword of putting people under the legal care and control of another person.
A judge may at times deem it necessary to appoint a guardian or conservator to protect a vulnerable person from abuse and trickery by others, or to protect them from poor decision-making regarding their own health and safety. But when put into the hands of self-serving or otherwise unscrupulous conservators, however, it can lead to exploitation and abuse.
Celebrities like Spears may be particularly susceptible to exploitation due to their capacity for generating wealth, but they are far from the only people at risk. As a lawyer with decades of experience representing poor and marginalized people and a scholar of tribal and federal Indian law, I can attest to the way systemic inequalities within local legal practices may exacerbate these potentially exploitative situations, especially with respect to women and people of color.
Perhaps nowhere has the impact been so grave than with respect to Native Americans, who were put into a status of guardianship due to a system of federal and local policies developed in the early 1900s purportedly aimed at protecting Native Americans receiving allotted land from the government. Members of the Five Civilized Tribes of Oklahoma – Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations – were particularly impacted by these practices due to the discovery of oil and gas under their lands.
Swindled by ‘friendly white lawyers’
A conservatorship, or a related designation called a guardianship, takes away decision-making autonomy from a person, called a “ward.” Although the conservator is supposed to act in the interest of the ward, the system can be open to exploitation especially when vast sums of money are involved.
By that time, federal policy had forced the removal of the Five Civilized Tribes from eastern and southern locations in the United States to what is presently Oklahoma. Subsequent federal policy converted large tracts of tribally held land into individual allotments that could be transferred or sold without federal oversight – a move that fractured communal land. Land deemed to be “surplus to Indian needs” was sold off to white settlers or businesses, and Native allotment holders could likewise sell their plots after a 25-year trust period ended or otherwise have them taken through tax assessments and other administrative actions. Through this process Indian land holdings diminished from “138 million acres in 1887 to 48 million acres by 1934 when allotment ended,” according to the Indian Land Tenure Foundation.
During the 1920s, members of the Osage Nation and of the Five Civilized Tribes were deemed to be among the richest people per capita in the world due to the discovery of oil and gas underneath their lands.
However, this discovery turned them into the victims of predatory schemes that left many penniless or even dead.
Reflecting on this period in the 1973 book “One Hundred Million Acres,” Kirke Kickingbird, a lawyer and member of the Kiowa Tribe, and former Bureau of Indian Affairs special assistant Karen Ducheneaux wrote that members of the Osage Nation “began to disappear mysteriously.” On death, their estates were left “not to their families, but to their friendly white lawyers, who gathered to usher them into the Happy Hunting Ground,” Kickingbird and Ducheneaux added.
Lawyers and conservators stole lands and funds before death as well, by getting themselves appointed as guardians and conservators with full authority to spend their wards’ money or lease and sell their land.
Congress created the initial conditions for this widespread graft and abuse through the Act of May 27, 1908. That Act transferred jurisdiction over land, persons and property of Indian “minors and incompetents” from the Interior Department, to local county probate courts in Oklahoma. Related legislation also enabled the the Interior Department to put land in or out of trust protection based on its assessment of the competency of Native American allottees and their heirs.
Unfettered by federal supervisory authority, local probate courts and attorneys seized the opportunity to use guardianships to steal Native Americans estates and lands. As described in 1924 by Zitkála-Šá, a prominent Native American activist commissioned by the Secretary of Interior to study the issue, “When oil is ‘struck’ on an Indian’s property, it is usually considered prima facie evidence that he is incompetent, and in the appointment of a guardian for him, his wishes in the matter are rarely considered.”
The county courts generally declared Native Americans incompetent to handle more than a very limited sum of money without any finding of mental incapacity. Zitkála-Šá’s report and Congressional testimony documented numerous examples of abuse. Breaches of trust were documented in which attorneys or others appointed conservators took money or lands from Nation members for their own businesses, personal expenses or investments. Others schemed with friends and business associates to deprive “wards.”
‘Plums to be distributed’
One such woman in Zitkála-Šá’s report was Munnie Bear, a “young, shrewd full-blood Creek woman … [who] ran a farm which she inherited from her aunt, her own allotment being leased.” Munnie saved enough money to buy a Ford truck and livestock for her farm, with savings remaining in a bank account. Once oil was discovered, however, the court appointed a guardian, who appointed a co-guardian and retained a lawyer, each of whom deducted monthly fees that depleted Bear’s funds. During the period of her guardianship, she was unable to spend any money or make any decisions about her farm or livestock, nor did she control her bank investment.
Zitkála-Šá’s report displays the extent of this practice:
“Many of the county courts are influenced by political considerations, and … Indian guardianships are the plums to be distributed to the faithful friends of the judges as a reward for their support at the polls. The principal business of these county courts is handling Indian estates. The judges are elected for a two-year term. That ‘extraordinary services’ in connection with the Indian estates are well paid for; one attorney, by order of the court, received $35,000 from a ward’s estate, and never appeared in court.”
Wards were often kept below subsistence levels by their conservators while their funds and lands were depleted by the charging of excessive guardian and attorneys’ fees and administrative costs, along with actual abuse through graft, negligence and deception.
Reports like that of Zitkála-Šá’s resulted in Congress enacting the Indian Reorganization Act of 1934. This put the Indian land that had not fallen into non-Indian hands during the federal policy of allotting plots back into tribal ownership and secured it in the trust of the United States. It also ended the potential for theft through guardianship.
But the lands and funds lost as a result of guardianships were not restored nor did descendants of those swindled ever enjoy the benefit of their relatives’ lands and monies either.
San Francisco, CA – After suffering for years with poisoned water and serious health issues due to fracking and injection wells on and near their reservation the governing body of the Ponca Nation of Oklahoma voted to pass a statute recognizing the rights of nature on Friday, October 20, 2017. When enacted, the Ponca will be the first tribal nation to recognize the rights of nature into statutory law.
“On Friday, October 20th the Ponca Tribe of Oklahoma took the historic step of agreeing to add a statute to enact the Rights of Nature. We are proud to be moving into the future by honoring our original instructions to respect all life on our Mother Earth,” said Casey Camp-Horinek, a member of the Ponca Tribal Business Council. “We would like to thank everyone who has brought information about the Rights of Nature and those who continue to share ways to bring back respect for the natural laws that have sustained all life for millenniums. A special thanks to Movement Rights founders, Shannon Biggs and Pennie Opal Plant for all the support provided over the last few years.”
Movement Rights has been working with members of the Ponca Nation to assist the tribe with fracking issues utilizing the recognition of the rights of nature as a model to protect the land and health of tribal members. “Dozens of communities in the United States and several countries, including New Zealand, India, Ecuador and Bolivia, have passed laws that stop treating nature as property to be destroyed. The rights of nature legal framework recognizes the legal rights of ecosystems to exist and regenerate their vital life cycles,” said Shannon Biggs, the Executive Director of Movement Rights. “These communities and countries are using this new legal framework to protect people and natural communities from harmful activities including fracking. They are shifting human law to align with natural law.”
Ponca, Oklahoma is the epicenter of earthquakes caused by fracking and injection wells. Tribal members have experienced diseases that have decimated their population since the fracking industry began in their area. Every single water well on the reservation is too toxic to drink, bathe in or allow pets and livestock to drink. There have been 448 earthquakes in and around the Ponca reservation this year, in a state that was essentially earthquake free before the fracking industry moved in to the area. The Ponca Nation is expected to enact the Rights of Nature Statute into law by the end of 2017.
“We all know that water is life. The years of fish kills related to the fracking and injection wells amount to environmental genocide,” said Casey Camp-Horinek. “It is going to take all of us humans because we’re speaking for those without voices, for the deer, the cattle, those that fly. In our tribe we have a funeral a week now. We’re being fracked to death and It’s time to take a stand for our people and defend the earth.”
The Ponca Nation and Movement Rights also conducted two events which took place on Saturday, October 22nd called “Ponca Environmental Community Action Day”. The day included a prayer walk to the Phillips 66 refinery in the City of Ponca as well as a community meeting. “I feel like we are gaining strength, we had more tribal nations represented this time as well as non-natives,” said Ponca Tribal member, Suzaatah Williams. “We had elders and even a newborn on this walk and every age group in between. Even if only one of these people share the information they learned we have made a difference. Knowledge is power and we are only getting stronger!”
Speakers for the community events included Casey Camp-Horinek, Mekasi Horinek, Shannon Biggs, Bryan Parras of the Sierra Club and TEJAS in Houston, Texas, and Robby Diesu, coordinator for the National Stop the Frack Attack Network based in Washington, DC.
“Most importantly, thanks to our Creator, Wakonda,” said Casey Camp-Horinek. “We believe that the prayers and guidance provided are leading us to further protect our Mother Earth, who sustains us; and make a way for the generations to come.”
The deadline for the review of TransCanada’s permits for the Gulf Coast portion of the Keystone XL pipeline was Monday, June 25, 2012. At the Texas Army Corp of Engineers Galveston office and without any finalization of review, those permits will be automatically granted to the corporation – thanks to President Obama’s announcement that he would expedite the southern leg of the pipeline in Cushing, Oklahoma, back in March.
That’s why Texas climate justice activists, including myself, are officially announcing the Tar Sands Blockade, an epic action that we have been organizing since the beginning of the year. We’re mostly associated with Rising Tide North Texas, and we’re 100 percent prepared to use nonviolent, direct action to block the pipeline’s construction to protect our home.
Bring it, TransCanada
The Tar Sands Blockade will be coordinating nonviolent, direct actions along the pipeline route to stop this zombie pipeline once and for all. We are working with national allies as well as local communities to coordinate a road show that will travel throughout Texas and Oklahoma as well as a regional training effort for activists interested in getting involved in the blockade movement against the Keystone XL.
“Our action is giving a new meaning to ‘Don’t Mess with Texas,'” said Tar Sands Blockade Collective member Benjamin Kessler. Kessler is also a member of Iraq Veterans Against the War.
The permits for the pipeline’s construction are being automatically granted under the Nationwide Permit 12 protocol, or NWP 12. The permits do not need an environmental impact statement to accompany them, according to this process. That very fact alone endangers more than 631 streams and wetlands that the pipeline will cross in our state. Not only that, but the entire Carrizo-Wilcox Aquifer, which supplies drinking water for ten to 12 million homes across 60 counties in East Texas, along the pipeline’s path, is threatened with contamination.
The Keystone XL remains key to the expansion of the Alberta tar sands and leading NASA climate scientist James Hansen has called the pipeline “a fuse to the largest carbon bomb on the planet.” According to Hansen, if the carbon stored in the tar sands is released into the atmosphere, it would mean “game over for the climate.”
350.org founder Bill McKibben has worked hard to get Hansen’s message out to the public and to lawmakers in Washington. After more than 1,200 were arrested during the onset of the Tar Sands Action last fall, another 12,000 turned out to surround the White House to tell President Obama that the Keystone XL is not in the nation’s best interest.
McKibben was elated to hear that the Tar Sands Blockade is continuing to foster the spirit of resistance against the pipeline in the South with the use of nonviolent, direct action.
“Let’s be clear what the drama is here: human bodies and spirits up against the unlimited cash and political influence of the fossil fuel industry. We all should be grateful for this peaceful witness,” McKibben said.
Landowners living along the pipeline’s path say they have been intimidated by TransCanada to sign away the rights to their land, and it’s not just landowners that will lose. The pipeline is expected to destroy indigenous archeological and historical sites – including grave sites – in Oklahoma and Texas.
A U.S. Geological Survey (USGS) team has found that a sharp jump in earthquakes in America’s heartland appears to be linked to oil and natural gas drilling operations.
As hydraulic fracturing has exploded onto the scene, it has increasingly been connected to earthquakes. Some quakes may be caused by the original fracking — that is, by injecting a fluid mixture into the earth to release natural gas (or oil). More appear to be caused by reinjecting the resulting brine deep underground.
Last August, a USGS report examined a cluster of earthquakes in Oklahoma and reported:
Our analysis showed that shortly after hydraulic fracturing began small earthquakes started occurring, and more than 50 were identified, of which 43 were large enough to be located. Most of these earthquakes occurred within a 24 hour period after hydraulic fracturing operations had ceased.
In November, a British shale gas developer found it was “highly probable” its fracturing operations caused minor quakes.
Then last month, Ohio oil and gas regulators said “A dozen earthquakes in northeastern Ohio were almost certainly induced by injection of gas-drilling wastewater into the earth.”
Now, in a paper to be deliver at the annual meeting of the Seismological Society of America, the USGS notes that “a remarkable increase in the rate of [magnitude 3.0] and greater earthquakes is currently in progress” in the U.S. midcontinent. The abstract is online. EnergyWire reports (subs. req’d) some of the findings:
The study found that the frequency of earthquakes started rising in 2001 across a broad swath of the country between Alabama and Montana. In 2009, there were 50 earthquakes greater than magnitude-3.0, the abstract states, then 87 quakes in 2010. The 134 earthquakes in the zone last year is a sixfold increase over 20th century levels.
The surge in the last few years corresponds to a nationwide surge in shale drilling, which requires disposal of millions of gallons of wastewater for each well. According to the federal Energy Information Administration, shale gas production grew, on average, nearly 50 percent a year from 2006 to 2010.
The USGS scientists point out that “a naturally-occurring rate change of this magnitude is unprecedented outside of volcanic settings or in the absence of a main shock, of which there were neither in this region.” They conclude:
While the seismicity rate changes described here are almost certainly manmade, it remains to be determined how they are related to either changes in extraction methodologies or the rate of oil and gas production.
EnergyWire points out, “all of the potential causes they explore in the paper relate to drilling, or more specifically, deep underground injection of drilling waste.”
Last year, the Department of Energy set up a committee to examine the full range of environmental impacts of fracking. I testified to the members and, in addition to raising the issue about methane leakage and global warming, brought up the issue of earthquakes.
The committee said that they were indeed aware of this issue and ultimately the seven-member panel released a report of environmental guidelines for the natural gas industry, which included call on more research on “Understanding induced seismicity triggered by hydraulic fracturing and injection well disposal.”
It’s time go beyond mere research and start developing national standards to minimize these earthquakes.
Native Americans gathering in Cushing, OK today to protest President Obama’s words of praise for the Keystone XL pipeline were forced by local authorities to hold their event in a cage erected in Memorial Park. The protestors were stunned that their community, so long mistreated, would be insulted in such an open manner instead of being given the same freedom of speech expected by all Americans simply for taking a stance consistent with their values.
“A lot of tribal councils and Indian businesses struggle to find a balance between economic resources and our inherited responsibilities for the earth,” said Indian actor and activist Richard Ray Whitman in a statement. “How will the decisions we make now effect coming generations?”
“President Obama is an adopted member of the Crow Tribe, so his fast-tracking a project that will desecrate known sacred sites and artifacts is a real betrayal and disappointment for his Native relatives everywhere,” said Marty Cobenais of the Indigenous Environmental Network. “Tar sands is devastating First Nations communities in Canada already and now they want to bring that environmental, health, and social devastation to US tribes.”
The President visited Cushing to stand with executives from TransCanada and throw his support behind a plan to build the southern half of the controversial Keystone XL pipeline to move tar sands bitumen and crude oil from Cushing to the Gulf Coast refineries in Texas.
A major concern for Native Americans in Oklahoma, according to spokespeople at the event, is that Keystone XL and the Canadian tar sands mines that would supply it ignore impacts to indigenous communities and their sacred spaces.
“Natives in Canada live downstream from toxic tar sands mines,” said Earl Hatley, “and they are experiencing spikes in colon, liver, blood and rare bile-duct cancers which the Canadian government and oil companies simply ignore. And now they want to pipe these tar sands through the heart of Indian country, bulldozing grave sites and ripping out our heritage.”
The group points to a survey done by the Oklahoma Archeological Survey which found 88 archaeological sites and 34 historic structures that were threatened by Keystone XL. TransCanada was asked to reroute around only a small portion of these, leaving 71 archaeological sites and 22 historic structures at risk. The group says they have asked for a list of these sites and to oversee operations that might threaten sacred burial grounds, but neither request has been honored.
Beyond the threat to their own cultural heritage, the group voiced opposition to the pipeline’s environmental impacts.
“The Ogallala Aquifer is not the only source of water in the plains,” said RoseMary Crawford, Project Manager of the Center for Energy Matters. “Tar sands pipelines have a terrible safety record and leaks are inevitable.”
“We can’t stop global warming with more fossil fuel pipelines,” added Crawford. “The people who voted for this President did so believing he would help us address the global environmental catastrophe that our pollution is creating. He said he would free us from ‘the tyranny of oil.’ Today that campaign promise is being trampled to boost the President’s poll numbers.”
