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The U.S. election’s impact on the Dakota Access Pipeline protests and the rights of the people of Standing Rock
The Native American protests against the Dakota Access pipeline have become an international rallying cry for indigenous rights and climate change activism, drawing thousands to the area of Cannon Ball in North Dakota.
The complex legal setting, involving the rights of local Native American tribes as well as environmental protection, further fueled by the presence of militarized police and reports of violence against peaceful protesters put the dispute in international headlines.
Tribal sovereignty in the United States refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. The federal government recognizes tribal nations as “domestic dependent nations” and has a number of established laws attempting to clarify the relationship between the different federal, state, and tribal governments. The Constitution and later federal laws award local sovereignty to tribal nations, differing the full sovereignty of other (foreign) nations. This means, the U.S. Constitution specifically recognizes Native American tribes as distinct governments, along with foreign nations and the several states.
This principle has been upheld by the U.S. Supreme Court since the early 1800’s.
Long before the 4th of July 1776, Native American tribes governed themselves and negotiated treaties with other nations. Some of those nations include England, France, and Spain. When tribes started to agree to treaties with the U.S. starting in 1778, they were guaranteed the right to continue governing themselves. This resulted in their sovereign rights being retained, not granted.
Federal policy toward Native Americans and tribal governments was inconsistent throughout much of the 19th century. As the 1900’s approached, federal officials adopted a goal of assimilation and initiated efforts to end the reservation and tribal government system.
Then, in a major policy change enacted between 1880 and 1930, reservations were surveyed and lands deeded to Indian and non-Indian individuals. Tribal land holdings were vastly diminished and tribal governments were greatly weakened or eliminated. This became known as the “termination” era.
Throughout the mid-1940s to the mid-1960s the a period referred to as “termination” took place. Shaped by a set of laws and policies aiming of the assimilation of Native Americans in “mainstream” American society.
In practical terms, the policy ended the U.S. government’s recognition of sovereignty of tribes, trusteeship over Indian reservations and exclusion of state law applicability to native persons. From the government’s perspective Native Americans were to become taxpaying citizens, subject to state and federal taxes as well as laws, from which they had previously been exempt. During this period, social and economic problems skyrocketed within Native American communities.
In 1934, federal policy changed again with passage of the Indian Reorganization Act, which restored tribal lands and permitted tribes to reorganize under federal law for purposes of self-government. Since then, Congress has passed several other landmark statutes to strengthen tribal self-government, including:
The Indian Civil Rights Act (1968) applying most of the Bill of Rights’ requirements and guarantees to Indian tribal governments
The Indian Self-Determination and Education Act (1975) strongly reaffirmed Congress’ policy that tribal governments should be able to control education, contracts, and grants affecting Native Americans
The Indian Gaming Regulatory Act (1988) recognized Indian gaming as a vehicle for achieving economic self-sufficiency on reservations
The Indian Tribal Justice Act (1993) recognized the responsibility of the U.S. government to tribal governments, including the protection of the sovereignty of each tribal government
How does this complex legal back gourd affect the dispute centering around the Dakota Access Pipeline (DAPL) project?
As the controversial oil pipeline approaches the river that the Standing Rock Sioux tribe fears it could contaminate and as the police force continues to engage in tense standoffs with demonstrators. Opponents of the Dakota Access Pipeline say the project threatens sacred native lands and could contaminate their water supply from the Missouri river, which is the longest river in North America.
The 1,1720-mile pipeline is being built by Energy Transfer Partners to transport crude oil from the Bakken oil field in North Dakota to a refinery near Chicago. The pipeline was originally slated to cross the Missouri river near the city of Bismarck (which is about 80 kilometers north of the current route) but was rerouted to within a mile of the Standing Rock Sioux reservation.
Tribal leaders also say that the U.S. army corps of engineers’ initial decision to allow the pipeline to run within a half-mile of the local reservation was done without consulting tribal governments and without a thorough study of possible impacts.
This means that the project violates federal law and native treaties with the U.S. government.
Members of the Standing Rock Lakota and other Native American nations established a spiritual camp called Sacred Stone. Several other large camps, featuring a diverse mix of tribes and non-native supporters, have since emerged nearby. The main camp where more than 1,000 protesters are gathered is called Oceti Sakowin. The Standing Rock camps are all located about an hour south of Bismarck, North Dakota, though police have established strict roadblocks along the main local highway, meaning visitors have to deter their route to get to the demonstration.
The protest camps have repeatedly emphasized that they intend to remain unarmed and peaceful. As the pipeline has gotten closer to the Missouri river, activists have attempted to set up camps and prayer circles on the property where construction is planned.
The Morton County sheriff’s office, along with Cass County law enforcement and supporting police agencies from across the state, have formed a highly militarized police force that has targeted protesters attempting to block construction.
As of November, police have made more than 400 arrests, many of which occurred during two separate clashes within one week.
Police, who are often armed with large tanks and riot gear, have used pepper spray, teargas, rubber bullets, tasers and other tools to respond to the demonstrations. Jack Dalrymple, North Dakota’s governor furthermore called in the national guard.
The Dakota Access Pipeline operator announced on election day that it had completed construction of the pipeline up to Lake Oahe, which is part of the Missouri River. Furthermore, the company stated that it was preparing to begin drilling underneath the river, but it still lacks permission from the army corps of engineers to perform the drilling.
The US army corps of engineers has completed its review of the Dakota Access pipeline and is calling for “additional discussion and analysis”, further delaying completion of a project that has faced massive opposition from indigenous and environmental activists.
It is unclear how long the delay will last – and whether it will survive under the Trump administration.
Trump’s financial disclosure forms show he has between $500,000 and $1m invested in Energy Transfer Partners, and $500,000 to $1m holding in Phillips 66, which will have a 25% stake in the Dakota Access project once it is completed. Energy Transfer Partners’ stock price has climbed more than 15% since his election, from $33.37 to $38.68 a share.