“Sometimes, you wake in 2016, but it feels like 1875 because Natives are still fighting for our land” – Native American writer Sherman Alexie

Standing Rock, North and South Dakota: population 8,250. It’s a 3,500-square-mile reservation, the sixth-largest, in land area, in the United States. While its population is small, the reservation has garnered national attention in the past few months due to Sioux Tribe protests against a proposed oil pipeline known as the Dakota Access Pipeline (DAPL). Environmentalists, celebrities, veterans, and tribal members alike have shown support for not just rerouting the DAPL, but also for drawing attention to issues ranging from the Federal government’s treatment of Native Americans to climate change and fracking.

Aside from the environmental ramifications of the project, the controversy has highlighted a contentious trajectory in American history: Native American sovereignty and land ownership. On December 5th the Department of the Army announced it would not allow the pipeline to be drilled near the Standing Rock Reservation and would instead seek alternative routes, spelling a major victory for protestors. However, the issues raised over the past year on the oft forgotten Native American right to sovereignty will remain long after the protesters have returned home.

Dakota Access LLC, a subsidiary of Energy Transfer Partners, initiated plans for the DAPL in 2014. At over one thousand miles long and with a price-tag of $3.8 billion, it’s intended to transport 450,000 barrels of crude oil per day from North Dakota to Illinois, where the oil can then be shipped to refineries. The protests began when on April 1, 2016, a group of 200 Native Americans rode on horseback to protest’s the both the pipeline’s location on sacred land and its potential impact on the local water supply. While the Sioux petitioned the U.S. Army Corps of Engineers, the federal body overseeing construction, to complete a more thorough environmental impact study of the proposed site, the government approved the pipeline and ignored their request. As a result, the Standing Rock Sioux Tribe sued the U.S. Army Corps of Engineers in July of 2016 and protests continued to escalate until the decision to reroute the DAPL in December. At this time, the pipeline is already seventy-five percent complete.

While the environmental issues that surround fracking and the oil industry have received significant political and public attention for a while, the current protests have brought to light an issue that is much less oft-discussed: federal policy regarding Tribal and Indian land ownership and Tribal sovereignty. Most people know that the United States government operates on a federal and state level, but there is also a third level of government wherein “domestic, dependent nations,” are concerned: the tribal level. In terms of governance, tribal reservations have a government-government relationship with the United States. From 1774 until around 1832, Native American Tribes have signed binding documents or treaties with the United States federal government that have established boundaries of their lands and enshrined their rights as sovereign governments.

The Bureau of Indian Affairs divides Tribal and Indian Land into two categories: individually owned lands and tribally owned lands. Both of these categories are further divided into trust land, in which the federal government holds the legal title but “beneficial interest” remains with the individual Indian/tribe, and restricted fee land, in which the Indian/tribe holds legal title but with “legal restrictions against alienation or encumbrance.” In the case of the Standing Rock Reservation, the Sioux Tribe owns both trust and restricted fee land.

The Dakota Access Pipeline does not actually pass directly through the Standing Rock reservation—it passes through privately-owned property—but a look at history explains the land battles that led to the standoff today. The Sioux Tribe says that the land the pipeline would cross was illegally taken by the federal government. In the Fort Laramie Treaty of 1851, the United States government agreed to cede this portion of land, but the cession never happened. Congress violated the treaty as it unilaterally took back territory in the years that followed, fueled by economic incentive in the west after the California gold rush. Indeed, whether or not the land is recognized as belonging to the Sioux Tribe by the U.S. government, federal law mandates that “any federal agency overseeing a construction project has to consult with native nations or tribes if there are places with ‘religious and cultural significance’ nearby.” On September 2nd, two days before sacred sites and artifacts were destroyed by DAPL construction crews, Tim Mentz, Sr., the tribe’s historical preservation officer, testified before the Federal District Court in Washington, D.C. He noted that 27 graves and 82 stone sites lay in the DAPL’s path, but despite this construction continued. This recent discovery of sacred sites and burial places in land north of the reservation by the Sioux, and its destruction by DAPL construction crews, merits this legal consideration alone, whether or not one agrees that the land was unfairly taken from the tribe over the past 150 years.

Furthermore, even if one claims the pipeline is not on tribal land and so the Sioux have no legal footing, the fact that the DAPL has the ability to impact life on the reservation via the Tribe’s water supply is unavoidable. Blueprints have the pipeline crossing the Missouri River at Lake Oahe, where a leak or oil spill could send oil into the tribe’s drinking water. The risk of leaking of spillage has been a source of contention between protestors and the company/government, as the Dakota Access had been rerouted from another crossing point due to concerns over leaks into the drinking supply for the state’s capital.

At the heart of the numerous layers of dispute is the assertion that neither the US Government nor Dakota Access consulted with the Sioux Tribe regarding the issues of sovereignty, sacred land, nor environmental impact, dismissing the tribe’s right to sovereignty. The United States government has historically had a problematic relationship with tribes, railroading their rights due to economic or political incentive, and the Sioux argue that the route of the DAPL pipeline is a repetitive case.

While protestors are now celebrating a victory based on the Department of the Army’s announcement, the issue of the DAPL’s planning and construction process as a whole raises the question of whether we should be re-evaluating policies that were designed to relegate Native Americans’ tribes as subordinate to the federal government. If the legal status of people like the Sioux is to be fully recognized, then we need to push the federal government to pay attention to re-addressing tribal land boundaries and policies and honoring treaties that establish government-government relationships. While we as a country have spent decades examining the constitutionality of the government’s relationship with minorities and other groups of marginalized people, we have often ignored addressing the policy that governs those that were here first.

Lillian Gabreski

Written by Lillian Gabreski

Lillian Gabreski is a 2018 CIPA Fellow concentrating in international development and government, politics, and policy studies. Her research interests include international and customary law, political transparency, and education policy. She graduated summa cum laude from Penn State University and holds an honors degree in Political Science.

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