Whose Land is it Anyway? Why the Dakota Access Pipeline protests aren’t really about oil

By: Michelle Perez

Thousands of protestors, including members of over 280 Native American nations, gathered to establish Standing Stone Camp, outside of Bismarck, ND, creating the greatest gathering of Native American Tribes in the United States in nearly 150 years. They have unified to support the Standing Rock Sioux reservation, a part of the Great Sioux Nation, in its fight against the United States Army Corps of Engineers (USACE) in federal court.

The protests at Standing Stone Camp are more than an environmental struggle; they are an attempt to assert sovereignty and part of a growing movement amongst other indigenous and First Nations in the Americas.

A history of displacement and mistreatment of First Nations is particularly prominent in the Americas. Interactions between First Nations and European colonizers are marked by a number of devastating events: epidemic disease, enslavement, forced displacements, war, land grabs, genocide and broken promises. Other than Bolivia and Peru, the native population in every country in the Americas has dwindled to a small minority, some with no remaining native population whatsoever.

In United States, after challenges to the governmental authority of native tribes in the 1830s, the U.S. Supreme Court established and articulated the fundamental principle that native tribes have nationhood and inherent powers of self-government. Today, the United States recognizes 567 native tribes within its borders and through a government-to-government relationship with these sovereign nations has developed a “unique legal and political relationship.”

The Sioux Nation has arguably one of the most turbulent relationships with the United States Government. In 1868, after several wars and violent land disputes, the Treaty of Fort Laramie was signed between the Sioux the United States, guaranteeing the Sioux exclusive use of their lands. Despite the treaty, settlers continued to encroach onto native land and the territory came under United States possession through violence and coercive threats.

For decades afterwards, the Sioux fought for their land in federal courts. Over a century later, the U.S. Supreme Court awarded the Sioux Nation the largest sum ever given to a Native American tribe for illegally seized lands—$106 million—an apparent victory. However, The Sioux Tribal Council unanimously refused to accept the award, continuing litigation and holding out for rights to the land instead.

Recent developments tell a familiar story. The Standing Rock Sioux filed suit against USACE to halt construction in the areas where the Dakota Access Pipeline (DAPL) cross Lake Oahe in North Dakota. In line with the existing narrative about the troubled relations and the exploitation of land at the expense of Native Americans, the Tribe’s motion for temporary injunctive relief was denied—twice.

While DAPL does not actually cross the Standing Rock reservation land, it comes within a half mile of its borders. The pipeline runs almost entirely on private land, which limits federal jurisdiction to only 3% of the entire pipeline. Unlike natural gas pipelines, an oil pipeline requires no general or project level approval from the federal government.

The Tribe’s motion for a preliminary injunction does not cite any environmental claims or address USACE’s duties under environmental laws such as the Clean Water Act, despite their inclusion in the lawsuit. Rather, it focuses on the consultation process under the National Historic Preservation Act (NHPA), which requires the federal government to consult with Native American tribes when permitting in lands that may have Indian artifacts, even if that land is long ceded to the United States and no longer under Indian possession. The claims under NHPA, discuss preserving artifacts, but emphasize the defects in the consultation process, highlighting how USACE decisions diminish Standing Rock Sioux sovereign authority.

As the proceedings unfold, the manner in which USACE and other federal agencies interact with the Standing Rock Sioux will be scrutinized, particularly if the relationship rises to the “government-to-government” standard.

Other indigenous groups in the Americas are mobilizing in similar ways. For example, CONFENIAE, a regional organization of 1,500 indigenous communities in the Ecuadorian Amazon, are using police relation tactics learned in North Dakota, such as developing a camp, to hold their ground and establish their rights and protest land expropriation. Alternatively, Canada’s Idle No More, arose in response to legislation that attacked First Nations’ rights and removed many environmental protections to enable projects like oil extraction in the Alberta tar sands.

With media focus on Standing Stone Camp, pleas to the public and international community have garnered even more support for the Standing Rock Sioux and their sovereign authority. In formal testimony before the U.N. Human Rights Council (UNHCR) in Geneva Standing Rock Sioux Chairman stated that DAPL violates the U.N.’s own Declaration on the Rights of Indigenous Peoples,” referring to the agreement 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.