Friday, September 23, 2016

Standing Tall



The Sioux’s battle against a Dakota oil pipeline is a galvanizing social justice movement for Native Americans.


Protesters, including members of the Standing Rock Sioux tribe, march to a construction site for the Dakota Access Pipeline, near Cannon Ball, North Dakota, on Sept. 3Robyn Beck/Getty Images

What sparks and sustains a movement? For more than a month, members of the Standing Rock Sioux tribe and thousands of allies have gathered in camps along the Missouri River in Cannon Ball, North Dakota. They are protesting the $3.8 billion Dakota Access Pipeline which, if completed, would carry half a million gallons of crude oil per day over five states to markets in Mexico. More urgently for the protesters, the pipeline is slated to be built within a half mile of the Standing Rock Sioux Reservation, traveling across treaty-guaranteed lands, under the tribe’s main source of drinking water, and through sacred sites. As lawyers for the tribe have argued, “An oil spill at this site would constitute an existential threat to the Tribe’s culture and way of life.”

For now, a federal appellate court has granted an injunction to temporarily halt construction over certain portions of the pipeline as it considers tribal claims under the National Historic Preservation Act, Clean Water Act, and other statutes. This follows a statement by the Department of the Interior, the Army, and the Department of Justice indicating that construction would not be allowed to go forward while the government reviews whether federal agencies adequately consulted with the tribes before permitting the pipeline. These are positive steps forward, particularly given that, as the government concedes, the pipeline was “fast tracked” through the normal environmental review processes. The recent judicial decision gives the federal government time to consider more carefully the risks that the pipeline will pose for humans, the water, and the environment.

But it’s not enough. The United States has affirmative obligations, both legal and moral, to protect Indian water, land, culture, and religion. The reservation established by the Treaty of Fort Laramie of 1851, for example, included extensive lands that would be crossed by the pipeline. Although the government soon violated provisions of both that 1851 treaty and the Treaty of Fort Laramie 1868, the tribe may still have outstanding claims. In addition, various federal laws have been promulgated precisely to give the tribes a role in decisions affecting tribal resources off-reservation. As part of its review of the pipeline consultation process, the government promised to consider reform measures more broadly. Any reforms to the federal consultation process should require affirmative mutual consent between the federal and tribal governments regarding undertakings that impact tribal resources. There must be an opportunity for tribes to review, shape the terms of, and agree to federal projects affecting them before those projects get underway, as well as an open channel of government-to-government relations during and after project completion. 

For many American Indians, stopping the Dakota Access Pipeline has become (another) last stand. Neither side is giving in. Numerous protesters, including the tribal chairman, have been arrested. Social media has helped fuel the tribe’s resistance. Indian people recorded and shared video of the company bulldozing ancient stone prayer sites near the pipeline. When the pipeline company’s private security forces unleashed dogs and Mace on protesters, witnesses armed only with cellphones posted video footage online, leading to more intense journalistic coverage (including by one reporter who was then herself the subject of a state arrest warrant). When the governor of North Dakota called a state of emergency and cut off the camp water source, all of Indian country was put on alert and many other tribes trucked in donations of water. Thousands of Indian people have now turned out to drum and sing and pray at the camps. All of these events have attracted widespread media attention, visits from actors and musicians, and even a new protest song by Neil Young.

The situation at Standing Rock is a reminder that the plight of American Indian tribes, and of the Sioux in particular, stands as an all too familiar and dark chapter of U.S. history. The Sioux famously battled Custer and signed those historic treaties of Fort Laramie, only to have the government break them when gold was discovered in the Black Hills of Dakota territory. In 1890, after the U.S. outlawed Indian religions, the 7th Cavalry shot and killed approximately 200 Sioux people while they prayed in a ceremony called the Ghost Dance. After the Sioux refused to surrender and give up their lands, the U.S. tried to starve them by overhunting the buffalo and denying treaty rations. Just 50 years ago, the government seized individual homes on the Standing Rock reservation to build the Oahe hydroelectric dam project. To this very day, many members of the Oceti Sakowin, the Great Sioux Nation’s name for itself, live on some of the poorest Indian reservations in the poorest counties of the United States.

In 2014, President Obama traveled to the Standing Rock Sioux Reservation. The President was reportedly moved by the poverty and suffering of tribal members, and also by their tenacity and spirit. In an historic speech, he said, “I promised ... to be a president ... who honors our sacred trust, and who respects your sovereignty, and upholds treaty obligations.” He went on to quote the great Sioux leader Sitting Bull, saying, “Let’s put our minds together, to see what we can build for our children.” To Indian people who believe in an obligation to live on this Earth in a way that honors what they call the Seven Generations—from great-grandparents to great-grandchildren—the president’s words acknowledged a sacred bond of shared responsibility for the past, present, and future of Indian country.

The situation unfolding in North Dakota is primarily a story about the legal battle facing the Standing Rock and other Sioux tribes. But it is also about the ways in which the Standing Rock Sioux Tribe is, against all odds, marching at the forefront of today’s contemporary indigenous rights movement. Connected to other national and global movements emphasizing racial, social, and environmental justice, the Standing Rock Sioux are asserting rights to sovereignty, land, culture, and religion in ways that are connecting to larger, global struggles. More than 150 Indian nations have traveled to support the Sioux, flooding the camp with supplies, prayers, and commitments of solidarity. The Crow tribe even set aside its historic differences with the Sioux to present gifts, songs, and prayers to the Standing Rock tribe upon its arrival. For indigenous people traveling from Ecuador, and New Zealand, and beyond, Standing Rock is about more than just one tribe’s fight for justice. It has become a symbol of hope and rebirth. As the people say, Mni Wiconi, “water is life.”

The storm brewing in North Dakota is now moving beyond the Plains. This week, Standing Rock Sioux Chairman David Archambault traveled to Geneva to make the tribe’s case to the United Nations. In formal testimony before the U.N. Human Rights Council, Archambault stated, “This pipeline violates our treaty rights and our human rights, and it violates the U.N.’s own Declaration on the Rights of Indigenous Peoples.” The declaration is an instrument, adopted by 144 nations worldwide, including the U.S., which calls on national governments to recognize the rights of indigenous peoples to land, water, and sacred sites in traditional territories.

The protests around the Dakota pipeline have already achieved something historic: They have inspired indigenous peoples across the world to unite around efforts to preserve natural, religious, and cultural resources essential for the survival of the earth. As Supreme Court Justice Hugo Black wrote at the end of his now-famous dissent in the 1960 Indian treaty case Federal Power Commission v. Tuscarora Indian Nation: “Great Nations, like great men, should keep their word.” The federal government must meet its obligations in this case. Meanwhile, as summer turns to fall, and colder weather is coming to the Plains, members of the Oceti Sakowin and their allies at the Cannonball camps are gathering supplies and prayers to continue the struggle for the people and the water.

Kristen A. Carpenter is currently serving as the Oneida Indian Nation Visiting Professor of Law at Harvard Law School.
Angela R. Riley is a professor of law at the University of California–Los Angeles.

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