by: Marlon Baquedano
On Saturday, September 3, 2016 in North Dakota, security guards working for the Dakota Access pipeline company attacked Native Americans of the Standing Rock Sioux Tribe with dogs and pepper spray as they protested the $3.8 billion pipeline’s (DAPL) construction on a tribal burial site.[1] The incident led the tribe’s attorneys, from the nonprofit legal organization Earthjustice, to request a temporary restraining order on continuing construction of the pipeline in that location.[2] On Tuesday, Federal Judge James E. Boasberg granted in part and denied in part the temporary restraining order.[3] The court ordered that no construction activity could take place between State Highway 1806 and 20 miles east of Lake Oahe but that work could proceed west of Highway 1806.[4] However, on Friday Judge Boasberg ruled against the Standing Rock Sioux Tribe’s request for a preliminary injunction to halt construction on the DAPL.[5]
Nevertheless, the Departments of Justice, Army and Interior issued a joint statement, which called on Dakota Access to hold the construction near the tribe’s reservation until the U.S. Army Corps of Engineers (USACE) can revisit its previous decisions in the disputed portion of land.[6] This unusual joint statement is an indication that the argument by the Standing Rock Sioux Tribe has some basis in fact: under federal law, the Army Corps of Engineers must consult with tribes about its sovereign interests and in this case it seems that the DAPL project was approved and construction started without any meaningful consultation.[7] A main part of the complaint that the Standing Rock Sioux Tribe alleged in the lawsuit, filed in July,[8] includes the DAPL crossing at multiple locations the tribe’s ancestral lands which are of a great historical and cultural significance to the tribe, which carry the great potential of damage or destruction. Additionally, this is also a case of potential environmental dangers that could result from leaks that could impact the Missouri River. The Missouri River is a source of water for 8,000 residents of a reservation a mile away from where the pipeline would cross.[9]
Moreover, this case is also about the opportunity for meaningful discussion between Native American tribes and the federal government when their rights could be impacted. These issues are not new; the Sioux tribe signed treaties in 1851[10] and 1868[11] that ended up taking lands and resources from the Sioux tribe without regard to tribal interests and were later broken by the government.[12] This is why this particular protest against the DAPL is important: thousands of Native Americans from across the country are joining together to voice their concerns against what they perceive is mistreatment. More than 200 tribes have declared their support with many sending food and supplies. Moreover, this time the protest has gained national attention and the support of environmentalists who hope to halt the project just like the Keystone XL pipeline.
The government must ensure meaningful discussion under federal law between USACE and sovereign tribes like the Sioux before approving projects like DAPL. Projects like DAPL that are fast-tracked using Nationwide Permit No. 12 process, which grants exemption from environmental reviews required by the Clean Water Act and the national Environmental Policy Act by treating the pipeline as a series of small construction sites,[13] should be scrutinized closely. For example, the government’s environmental assessment addressed only the portion of the pipeline that traverses federal land without regard to private land.
When people’s voices are left out of the discussion, we should not be surprised when they exercise their First Amendment rights by peacefully assembling and protesting what they deem is unjust. We should not tolerate an attack on protesters with dogs and pepper spray reminiscent of the police dogs attack on Civil Rights demonstrators in Birmingham in 1963. Stakeholders should always have a voice in the decision-making process.
[1] Joe Heim, Showdown Over Oil Pipeline Becomes a National Movement for Native Americans, The Washington Post (Sept. 7, 2016, 8:00 AM), https://www.washingtonpost.com/national/showdown-over-oil-pipeline-becomes-a-national-movement-for-native-americans/2016/09/06/ea0cb042-7167-11e6-8533-6b0b0ded0253_story.html.
[2] Id.
[3] Standing Rock Sioux Tribe v. United States Army Corps of Engineers, Docket No. 1:16-cv-01534 (D.D.C. July 27, 2016).
[4] Id.
[5] Id.
[6] U.S. Dep’t of J., Joint Statement from the Dep’t of J., the Dep’t of the Army and the Dep’t of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Sept. 9, 2016).
[7] See David Archambault II, Taking a Stand at Standing Rock, N.Y. Times (Aug. 24, 2016), http://www.nytimes.com/2016/08/25/opinion/taking-a-stand-at-standing-rock.html?_r=0; U.S. Dep’t of the Army, U.S. Army Corps of Engineers Tribal Consultation Policy and Related Documents (2013).
[8] See Standing Rock Sioux Tribe, Docket No. 1:16-cv-01534.
[9] Joe Heim & Mark Berman, Federal Government Moves to Halt Oil Pipeline Construction Near Standing Rock Sioux Tribal Land, The Washington Post (Sept. 9, 2016, 7:15 PM), https://www.washingtonpost.com/news/post-nation/wp/2016/09/09/federal-judge-denies-standing-rock-sioux-tribes-request-to-stop-work-on-four-state-oil-pipeline/?utm_term=.b8f37260f5cb.
[10] Treaty of Traverse des Sioux, Sioux-U.S., July 23, 1851, 10 Stat. 949.
[11] Treaty of Fort Laramie, Sioux-U.S., Apr. 29, 1868, 15 Stat.635.
[12] See Archambault II, supra note 7.
[13] U.S. Army Corps of Engineers, Decision Document Nationwide Permit 12 (2012).
