Who Stands with Standing Rock?

Sarah A. Quarles, KLJ Staff Editor[1]

         In recent months, the contentious Dakota Access Pipeline (“DAPL”) has captured great media attention. At the center of this controversy are The Army Corps of Engineers (“ACE”) and the Standing Rock Sioux Tribe of North and South Dakota.[2] The Dakota Access Pipeline is intended to transport crude oil from the North Dakota Bakken region to a terminus in Illinois.[3] Along its 1,172 mile-long route,[4] DAPL was until recently slated to cross the Missouri River underneath North Dakota’s Lake Oahe, which is located a half mile downstream from the Standing Rock Indian Reservation,[5] and serves as a sight of cultural and religious significance.[6] While ACE  recently denied an easement for the pipeline pending environmental impact research,[7] the issues raised by the protests remain relevant in light of reality television star Donald Trump’s issuance of an executive order to advance approval of the pipeline.[8]

For many, the graphic images of violence perpetrated against protesters alone have elicited a showing of solidarity on social media in the forms of “#NoDAPL” and “#IStandWithStandingRock”.[9] Although these scenes are horrific in their own right, it should be noted that they are born of very real legal and social tensions. By exploring the various interests at play for those who oppose DAPL, this blog post seeks to edify not only its readers, but its author as well.  I ask you to join me in examining what it means to stand with Standing Rock.

You might stand with Standing Rock because you believe that federal policy should show greater deference to tribal sovereignty. The land that is being fought for by DAPL protesters is government property by way of an imbalanced “renegotiation” of an 1868 land treaty with the Sioux tribe.[10] American history is riddled with tales of displacement of indigenous peoples from areas of cultural and spiritual significance.[11] In recognition of this unfortunate reality, the American Council on Historic Preservation, the committee that oversees historic preservation on the behalf of congress,[12] requires that federal agencies consult with Native American tribes when they attach cultural significance to a historic property, regardless of its location.[13]

ACE alleges that their duty to consult was fulfilled by requesting that Sioux leaders verify in writing a historical survey completed by ACE.[14] The Sioux assert the Army Corps’ failure to include them in the historical surveying process served to infringe their right to consultation.[15] As a result of this failure in communication, an independent historical survey conducted by leaders of the Sioux tribe revealed a burial monument that was destroyed by construction efforts the very next day.[16]

You might stand with Standing Rock because you are passionate about environmental law. The Pipeline and Hazardous Materials Safety Administration (“PHMSA”) has reported more than 3,300 incidents of leaks and ruptures at oil and gas pipelines since 2010.[17] In light of the high potential for pollution, the Standing Rock Sioux’s complaint alleges that the authorization of the pipeline was made in violation of the Clean Waters Act and the Rivers and Harbors Act.[18]

Beyond the cultural, economic, and environmental disenfranchisement of the Sioux, you might stand with Standing Rock because your concerns lie with private land ownership. The Fifth Amendment allows for the government to appropriate private land for public use and mandates the payment of just compensation.[19] Fifteen Iowan landowners plan to bring suit on the grounds that the pipeline does not constitute public use, thereby making the exercise of eminent domain illegitimate.[20]

For the reasons above, it is understandable why so many wish to stand with Standing Rock. However, as evidenced by the protracted litigation surrounding DAPL construction, it is not necessarily a court of law that will put a halt to DAPL.  Rather, it is the court of public opinion that must be swayed.[21] It is a familiar refrain that lawmakers work for the people, but the impetus to effect meaningful change is diminished when the polity accepts misinformation and apathy. So stand with Standing Rock; type “#NODAPL” until your fingers are raw; call federal and state agencies to decry the systematic disenfranchisement of indigenous peoples, the degradation of our environment, or the infringement of private property rights. But whatever you do, do so consistently and understand that you are contributing to the social climate in the hopes of effecting legal change.

[1] J.D. expected May 2018.
[2] Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 80 Fed. Reg. 1942, 1947 (Jan. 14, 2015).
[3] Energy Transfer, Overview, daplpipelinefacts.com, http://daplpipelinefacts.com/about/overview.html (last visited Nov. 27, 2016).
[4] Energy Transfer, Resources, daplpipelinefacts.com, http://www.daplpipelinefacts.com/resources/faq.html (last visited Nov. 27, 2016).
[5] Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-1534, 2016 WL 4734356, at *6 (D.D.C. Sept. 9, 2016).
[6] Complaint for Declaratory and Injunctive Relief at 143, Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-1534, 2016 WL 4734356, at *6 (D.D.C. Sept. 9, 2016) (No. 1:16-cv-01534).
[7] Caroline Kenny, Dakota Access Pipeline to be rerouted, CNN (Dec. 5, 2016), http://www.cnn.com/2016/12/04/politics/dakota-access-pipeline/.
[8] Athena Jones, et al, Trump Advances Controversial Oil Pipelines with Executive Action, CNN, (Jan. 24, 2017 5:57 pm), http://www.cnn.com/2017/01/24/politics/trump-keystone-xl-dakota-access-pipelines-executive-actions/.
[9] See, e.g., Alan Taylor, Water Canons and Tear Gas Used Against Dakota Access Pipeline Protestors, The Atlantic, (Nov. 21, 2016),  http://www.theatlantic.com/photo/2016/11/water-cannons-and-tear-gas-used-against-dakota-access-pipeline-protesters/508370/; Tom Cahill, Graphic photos show the shocking brutality unleashed on Standing Rock protesters, US Uncut, (Nov. 21, 2016), http://usuncut.com/resistance/standing-rock-protesters-violently-assaulted-police-graphic-photos/#IStandWithStandingRock, Twitter (Nov. 26, 2016), https://twitter.com/search?q=%23IStandWithStandingRock&src=tyah; #NoDAPL, Instagram (Nov. 26, 2016), https://www.instagram.com/explore/tags/nodapl/.
[10]  The Treaty of Fort Laramie art II, Apr. 29, 1868, 15 Stat. 635; The Manypenny Agreement ch. 72, Feb. 28, 1877, 19 Stat. 254.
[11] See generally, The Indian Removal Act, May 28, 1830, 4 Stat. 411.
[12] Advisory Council on Historic Preservation, About, http://www.achp.gov/aboutachp.html (last visited Nov. 26, 2016).
[13] National Historic Preservation Act, 54 U.S.C. § 302706 (2014).
[14] Standing Rock Sioux Tribe Oral Argument before D.C. Circuit Court of Appeals, Soundbutt (Oct. 5, 2016), https://soundbutt.com/indianz/sets/standing-rock-sioux-tribe-dc.
[15] Id.
[16] Id.
[17] See All Incidents, U.S. Dept. of Transportation Pipeline and Hazardous Materials Safety Administration, https://hip.phmsa.dot.gov/analyticsSOAP/saw.dll?Portalpages.
[18] Complaint for Declaratory and Injunctive Relief §2, 143, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-01534 (D.D.C. July 27, 2016).
[19] U.S. Const. amend. V.
[20]Eminent Domain? Iowans Sue to Stop Dakota Access Pipeline, Say It Provides No Public Service, Democracy Now, (Sept. 7, 2016), https://www.democracynow.org/2016/9/7/iowa_landowners_sue_to_stop_dakota.
[21]See Nives Dolak and Aseem Prekash, The Dakota Pipeline Protests Should Think Big, Slate (Nov. 3, 2016, 1:34 PM), http://www.slate.com/articles/health_and_science/science/2016/11/how_the_dakota_pipeline_protesters_can_capitalize_on_their_momentum.html.
*Featured image by Joe Plette, licensed under CC BY-NC 2.0.