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Dakota Access Pipeline:
A Battle Over Human Rights

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Image by Fibonacci Blue and used under a Creative Commons license.
According To One Legal Scholar And The Opinions Of Many Others, The Ongoing Battle Is More Complicated Than Simply Water Safety: It’s Also About Environmental Racism And Playing Monopoly With Tribal Lands

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By Wayne Schutsky
Modern Times Magazine

Sept. 29, 2016 — By now, you have probably heard of the Dakota Access Pipeline. The controversial project has received a vast amount of media attention over the past several months as protesters from the Standing Rock Sioux Tribe and their supporters rally against a portion of the pipeline that would travel across sacred tribal territory in North Dakota. The pipeline would also pass beneath the Missouri River, the predominant water source for the Standing Rock Reservation.

Beyond the soundbites, the issue isn’t only about potential environmental disasters. The deeper elements to this issue hover around tribal sovereignty, environmental racism and the historically one-sided relationship between the U.S. federal government and Native American tribes. More specifically, was the tribe properly consulted when the Army Corps of Engineers evaluated potential routes for DAPL, and, furthermore, why does the U.S. government have dominion over these sacred tribal lands to begin with?

To parse these complicated issues, I spoke with Robert Clinton, Foundation Professor of Law at the Arizona State University’s Sandra Day O’Connor School of Law. Clinton serves as Chief Justice of the Winnebago Supreme Court and in the past served as Associate Justice of the Cheyenne River Sioux Tribal Court of Appeals, which is near the Standing Rock Sioux Tribe.

“There is a matter of federal policy requiring all federal agencies, that would include the Army Corps of Engineers, [that] administer lands and waters that were Lakota country, but are now federal country because of the old rivers and dams projects, to consult with the tribes before any decision like this was done,” said Clinton. “My understanding is that the consultation, if it existed at all, was at best perfunctory, and nobody paid any attention to the tribes, which is why you are now getting this demonstration.”

These consultations are often a point of contention when it comes to developments on sacred tribal land under federal control, because they are tribes argue that they are not substantial dialogs and in some cases do not happen at all. The Standing Rock Sioux Tribe contends that the Army Corps of Engineers did not consult properly with the tribe prior to authorizing the pipeline construction.

One major issue with these consultations is that federal regulations can prevent a meaningful dialog from occurring between the tribes and agents of the federal government conduction the consultations.

“Unfortunately, as you may or may not know, any time somebody representing the federal government goes out, they are not authorized to speak on behalf of the federal government unless their comments have been cleared,” said Clinton. ”So, in almost every consultation, you have representatives of the federal government hearing things and, because of the general policy on what federal employees can say, sitting there just listening and not really saying anything. I would not call it a consultation. And, of course, the tribes inevitably get incensed by that, as well they should, because they are airing their concerns and getting no response from the federal government at all.”

Clinton speculates that the Obama Administration may have halted construction on DAPL on Army Corps. of Engineer land because it determined a proper consultation did not take place.

Portions of the contested land that the pipeline would cross is now owned by the Army Corps of Engineers, and the Obama administration recently called for a halt to construction on those lands in order to revisit the construction authorizations the Corps initially awarded to developers (and also asked pipeline developer Energy Transfer Partners to halt construction within 20 miles east and west of Lake Oahe). That halt came on the heels of a federal judge’s decision not to grant an injunction on construction while a tribal lawsuit plays out.

Despite this temporary victory, the Dakota Access Pipeline issue is far from over and supporters from the world over (including other indigenous tribes in the U.S. and from around the world, environmental activists, and cities and community groups from throughout the U.S.) continue to flood into the contested area to protest construction and show solidarity with the Standing Rock Sioux and the “water protectors.”

The pipeline owner, Energy Transfer Partners, has already begun development on segments of sacred Sioux land.

“This demolition is devastating,” Standing Rock Sioux Tribal Chairman David Archambault said in a press release. “These grounds are the resting places of our ancestors. The ancient cairns and stone prayer rings there cannot be replaced. In one day, our sacred land has been turned into hollow ground.”

The tribe’s water concerns are equally daunting. As the lone source of water for the Standing Rock Reservation, the Missouri River is an important natural resource. A potential and inevitable leak on the Dakota Access Pipeline near the tribe’s land would be a grave threat to all tribes and other communities that rely on the Missouri for water.

“DAPL would transfer 570,000 barrels of crude oil across the Missouri River every day,” reads a letter from the President John Yellow Bird Steele of the Oglala Sioux Tribe to President Barack Obama. “An oil spill would foul our shores, poison our waters and have catastrophic consequences on human health, essential drinking water, community life, fish and wildlife (including endangered species), agriculture, tourism, our historic and cultural policies, and the economies of our Sioux Tribes.”  

Clinton says he has heard at one point in the development of the DAPL, it did not cross sacred Sioux land. Allegedly, this route was eventually changed in favor of the current route due to protests from non-Natives who would have been affected.

“The second problem, I am told, though I have not researched this myself, so I cannot say this is gospel, is the original pipeline plan did not run across Lakota territory at all,” said Clinton “It instead ran across a less expensive area which would have affected non-Indians, and their protest moved the design features across Indian country, which struck many people as a kind of, if you will, energy-based environmental racism.”

The Army Corps of Engineers did not respond to requests for comment on these allegations.
These allegations would fit nicely within the historical context of land rights struggles between the Sioux and the federal government. In fact, they feel very similar to the way in which the Army Corps of Engineers took this land from the Sioux in the 1950s as part of program to dam portions of the Missouri River.

According to Peter Capossela’s “Impacts of the Army Corps of Engineers’ Pick-Sloan Program on the Indian Tribes of the Missouri River Basin” published in the Journal of Environmental Law and Litigation, “The Corps of Engineers’ dams on the Missouri River main stem would decimate these lands. The Corps located the dams so as to minimize the impact of the reservoirs on the cities along the river in North and South Dakota. The Corps targeted Tribal lands, which were inundated as the sites of the reservoirs. Two dams, Fort Randall at Yankton and Big Bend at Lower Brule and Crow Creek, were built on Indian Reservations.The largest reservoirs, Sakakawea at Fort Berthold and Oahe at Standing Rock and Cheyenne River, largely overlaid lands taken from the Tribes.”

According to Capossela, much of the Standing Rock Sioux community and infrastructure sat along the banks of the Missouri, including schools, hospitals, homes, churches and graveyards. When the tribe challenged the eminent domain claims made by the Army, a court actually sided with the tribe. However, Congress soon enacted legislation, including the Flood Control Act, which allowed the Army to continue its dam project on tribal land.

This historical context seemingly undermines one major argument made by pipeline supporters which is that the Standing Rock Sioux have no authority over contested land because the pipeline does not cross reservation land.

While that argument makes sense on the surface, the land rights in the contested area and many historical Sioux lands surrounding Lake Oahe are not all that simple.

“In the 1950s, Congress authorized a series of dams that created Lake Oahe along the upper Missouri River in the Army Corps areas,” said Clinton. “The result was the condemnation of both some of the most important areas to the Lakota [Teton Sioux] as well as the flooding and relocation of major villages away from some of the more fertile areas of the reservation to areas that were not appropriate for crop growing but were simply range land.”

These dams and the creation of Lake Oahe resulted in flooding and flood easements and transferred ownership of historically Sioux-owned land to the Army Corps of Engineers. It also resulted in many Sioux becoming ranchers rather than farmers because they were moved to less fertile land.

“So, these are traditional Lakota areas [where] ownership got very involuntarily transferred to the federal government in the 1950s, so comparatively recently and in the memory probably of some of the elders and certainly within the memory of the first generation after that in terms of being told the stories, which of course is how the lore is passed down in the Indian communities,” said Clinton.

With that context in place, it becomes clear that the Standing Rock Sioux and their supporters are not simply fighting against a single development project that will decimate sacred lands and potentially endanger their livelihood. Rather, the tribe is fighting against a system, an entrenched status quo, that has allowed the federal government and private corporations to play Monopoly with tribal lands, trading one lot for another, with little regard for how these transactions affect the people who have lived there the longest.
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