From North Dakota to Geneva: The Legal Battle Behind the Standing Rock Sioux Tribe’s Protests of the Dakota Access Pipeline
Vol. 38 Associate Editor
In recent weeks, a normally peaceable state has found itself rife with conflict as protests erupted over the construction of the Dakota Access Pipeline (DAPL) in North Dakota. The opposition began with the Standing Rock Sioux Tribe, who opposed the pipeline on the grounds that its construction would result (and indeed has resulted) in the destruction of important historical and cultural artifacts, including ancestral graves, and that the pipeline’s proximity to the area’s water source poses a grave threat to the tribe’s drinking water. The controversy has grown into a human rights movement of historic proportions with thousands of supporters traveling from across the country to Cannon Ball, North Dakota, to join the cause. Recent involvement of the United Nations Human Rights Council showed the issue reach an international platform, yet it remains to be seen if the Tribal Chairman’s trip to Geneva will have any impact on the situation in the United States or if recourse for the tribe in international forums will be effective. The DAPL comes on the tail end of the recent oil boom in the Bakken oil fields of western North Dakota. The pipeline, built by Dallas-based Energy Transfer Partners, would extend almost 1,200 miles from North Dakota, across South Dakota and Iowa, to Patoka, Illinois, where it will connect with several other pipelines. This route passes within a half mile of the Standing Rock Sioux Reservation. While a vast majority of the pipeline crosses through private land and does not require federal permits, the portion in contention passes under Lake Oahe, a dammed portion of the Missouri River, thus requiring permits from the United States Army Corps of Engineers. On July 25, 2016, the Army Corps issued permits to Dakota Access after two years of route-planning and navigating the cultural and historical sites of the state. Two days later Standing Rock filed a lawsuit against the Army Corps under the Administrative Procedure Act, claiming that the Corps had violated its obligation to engage in tribal consultations under the National Historic Preservation Act (NHPA). On August 4, the Tribe then filed a motion for preliminary injunction for the Army Corps to withdraw Dakota Access’s permitting. Because only 3% of the pipeline is subject to federal permits, Dakota Access had been able to proceed with a majority of the construction without the Army Corps’ permitting. By the time construction began near the Standing Rock Reservation, almost half of the construction of the pipeline was completed, including 90% of the clearing and grading in North Dakota. On September 3, Dakota Access graded an area where sites of cultural significance had been found by a member of the Standing Rock Sioux Tribe only days before. The next day the Tribe filed an emergency motion for temporary restraining order, which the Corps decided not to oppose while awaiting the court’s decision on the Tribe’s previous injunctive motion. On September 9, 2016, the U.S. District Court for the District of Columbia issued an in-depth opinion denying the tribe’s motion, finding that the Corps had “likely” met its obligations under the NHPA and that Tribe had not met its burden to show that the injunction would prevent irreparable damage. However, that very same day the Department of Justice, the Department of the Army, and the Department of the Interior issued a joint statement that halted construction of the DAPL on Army Corps land bordering Lake Oahe until the Army’s previous decisions were reconsidered. Beyond simply stopping construction in this case, the joint statement recognized the “important issues” raised by the Standing Rock Sioux Tribe and other tribal nations regarding the DAPL and pipeline-related decision making generally. It acknowledged that the case had highlighted the need for “serious discussion” on whether there should be nationwide reform on how tribes are consulted on infrastructure projects such as the pipeline. The administration also expressed its intentions to invite the tribes to engage in “government-to-government consultations” on what the federal government could do better within the current statutory framework to ensure “meaningful tribal input” and the “protection of tribal lands, resources, and treaty rights,” as well as potential new legislation to propose to Congress. This move by the government has been well-received and regarded as a move toward genuine problem-solving. The case is currently on appeal in the U.S. Court of Appeals for the District of Columbia. On September 16, 2016, the court issued an emergency administrative injunction preventing Dakota Access from continuing construction on the DAPL for 20 miles on both sides of the Missouri River and Lake Oahe, pending appeal. The conflict officially hit the international stage on September 20, 2016, when Standing Rock Chairman Dave Archambault II addressed the 33rd session of the United Nations Human Rights Council in Geneva in an endeavor to gather international opposition to the pipeline. Mr. Archambault told the Council of the pipeline company’s “knowing” destruction of sacred places and burials, and that the pipeline “threatens our communities, our river, and the earth.” He described the “attack dogs” that the pipeline company used to harm individuals trying to protect the tribe’s water and sacred sites. He added that the U.S. courts have failed to protect the tribe’s “sovereign rights,” “sacred places,” and “water.” In conclusion, he asked that the Human Rights Council “call upon all parties to stop the construction of the Dakota Access Pipeline, and to protect the environment, our nation’s future, our culture, and our way of life.” The United Nations Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, responded two days later. In her statement, Ms. Tauli-Corpuz called upon the United States to stop construction of the pipeline. She agreed that the tribe had been denied access to information and had been excluded from meaningful consultations in the planning of the projects and in the environmental assessments. Furthermore, she urged the U.S. government to attempt to come into compliance with international standards under the United Nations Declaration on the Rights of Indigenous Peoples, including consultation with affected indigenous communities and obtaining their free and informed consent prior to undertaking any project affecting their lands. Ms. Tauli-Corpuz was endorsed by other UN Special Rapporteurs and members. The Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in 2007. Despite being voted in with an overwhelming majority, the Declaration is not legally binding. The United States, along with Canada, Australia, and New Zealand voted in opposition to the Declaration. Despite the support of the United Nations, the United States’ history with the U.N. with respect to indigenous rights and the government’s lack of response to the statement of the Special Rapporteur suggest that the involvement of the international community will not have a decisive impact on the U.S.’s actions moving forward. While there are few examples of the indigenous peoples of the United States taking action on an international scale, one well-known example is the Dann sisters of the Western Shoshone people in Nevada. The Dann sisters maintained that the United States government was violating their rights by attempting to take their traditional Shoshone lands by discriminatory means. The conflict went back to 1863, when the Western Shoshone signed the Treaty of Ruby Valley allowing the United States access (primarily in the form of free passage), but not title, to their ancestral lands. Disregarding the limitations of the treaty, the United States unilaterally seized complete control over 24 million acres of Western Shoshone lands. In 1979, the Indian Claims Commission (ICC) later awarded the Shoshone people $26 million as compensation for this taking, with the condition that all further claims for the land were extinguished. The Western Shoshone, however, did not accept this settlement and it remained in a U.S. Treasury account. The Dann sisters conducted a civil protest by ranching and grazing their cattle on land they considered traditional Shoshone territory, yet was controlled by the federal Bureau of Land Management. Throughout their 30-year battle, the government seized hundreds of the Dann sisters’ cattle and fined them over $3 million for their refusal to pay for grazing permits. After failing in U.S. courts, the Dann sisters took their case to Inter-American Commission of Human Rights and the United Nations Committee on the Elimination of Racial Discrimination asserting that their basic human rights to property, to equality before the law, and to a fair trial had been violated. Despite the Dann sisters’ successes in both the Inter-American Commission and the Committee on the Elimination of Racial Discrimination, the decisions went largely ignored by the United States. While this did take place before the adoption of the Declaration on the Rights of Indigenous Peoples, the United States’ lack of support for that instrument does not indicate that a significant deviation from past policy will be likely. It remains to be seen how the standoff will end: will the “protectors” (as they refer to themselves in lieu of “protesters”) succeed in stopping the construction of the pipeline; will the administration be able to take positive steps toward meeting international standards for indigenous rights; will the mass of protesters in North Dakota continue to grow as the notoriously brutal winter approaches? Regardless of the answers, the battle has undoubtedly resulted in a long-awaited dialogue on indigenous rights, as well as providing another example of the growing emphasis in the international forum on the convergence of human and environmental rights. And while it may not be the involvement of the international community that ultimately affects change in the United States, it is possible that the Standing Rock protests will incite a dialogue between the tribal and United States governments that will move the nation closer to compliance with the Declaration on the Rights of Indigenous Peoples.
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