The Legal Case for Blocking the Dakota Access Pipeline

Did the U.S. government help destroy a major Sioux archeological site?

A group from the Saginaw Chippewa Reservation at the protest camp on the Missouri River on the Standing Rock Sioux reservation (Andrew Cullen / Reuters)

To hear the Standing Rock Sioux Tribe tell it, an old-fashioned American land grab transpired earlier this week in rural North Dakota.

The tribe’s members and hundreds of other Native people have been protesting the construction of the Dakota Access pipeline since April. When built, the pipeline will stretch more than 1,100 miles from oil fields in North Dakota to a river port in Illinois. The tribe claims that the pipeline—which climate activists portray as a sequel to Keystone XL—could threaten their sole water source and that, more importantly, they were not consulted before the pipeline was approved.

Despite the newsy nature of the protests, the trial has plodded forward in U.S. federal court since July, with the judge weighing the tribe’s claims against those of the defendant, the Army Corps of Engineers. (The Corps is the federal agency that approved the pipeline.) But according to the Standing Rock Sioux, these standard legal proceedings received a ruthless and unprecedented emendation on the ground over the weekend.

As part of the ongoing trial, the legal team for the Standing Rock Sioux Tribe submitted documents to the court last Friday that certified one of their main claims in the case: that the pipeline will pass through and likely destroy Native burial sites and sacred places.

These documents provided some of the first evidence that state authorities had missed major archeological discoveries in the path of the pipeline. For instance, they described a large stone feature that depicted the constellation Iyokaptan Tanka (the Big Dipper)—a sign that a major leader, likely a highly respected Chief, was buried nearby.

“This is one of the most significant archeological finds in North Dakota in many years,” said Tim Mentz, a Standing Rock Sioux member and a longtime Native archeologist in the Great Plains. “[Dakota Access Pipeline] consultants would have had to literally walk directly over some of these features. However, reviewing DAPL’s survey work, it appears that they did not independently survey this area but relied on a 1985 survey.”

These newly discovered finds may no longer exist. The tribe and its legal team say that less than 24 hours after evidence of the new sacred sites were provided to the court, the Dakota Access company began construction on those same exact sites, perhaps destroying many of them forever. Dakota Access and the Army Corps of Engineers did not respond to a request for comment.

The case is especially egregious because the Standing Rock Sioux were seeking an injunction to halt construction. Instead of waiting for a verdict from the court, Dakota Access went forward and destroyed many of the sites. On Tuesday, the judge in the case granted an emergency restraining order blocking further construction, but he permitted some construction where the sites had been discovered.

If the Standing Rock Sioux’s allegations are correct, then the case has little precedent, legal experts say. Lawyers seek injunctions because they want to preserve the status quo during the trial. Altering the status quo while a trial is underway thwarts federal rule of law. One law professor compared it to the New York real estate developer Harry Macklowe’s midnight demolition of multiple hotels in 1985, a move to skirt a city ordinance that eventually cost him $2 million ($4.4 million in 2016 dollars).

One of several camps that have formed near Cannon Ball, North Dakota, as more protesters have arrived in the area. (Andrew Cullen / Reuters)

In many media reports, the story of the Dakota Access Pipeline (DAPL) has centered on climate change. It makes sense: Climate activists across the country are striving to block the further extraction of fossil fuels so as to prevent further carbon emissions, and if the Sioux successfully obstruct the pipeline—or create enough political pressure for the White House to cancel it—then oil companies will face one more obstacle to exporting the commodity. Climate activism also provides the tribe with a broad, nationwide coalition of support.

But there is a risk in this widespread exposure: It allows Dakota Access to skirt over the underlying legal issues. When the Chamber of Commerce decried the Standing Rock tribe, it referred to them ubiquitously as “anti-energy protesters.” The organization never mentioned that many of the protesters are from Native communities or nations.

This might seem particularly odd when you consider the region’s history. The land beneath the pipeline was accorded to Sioux peoples by the Treaty of Fort Laramie in 1868. Eleven years later, the U.S. government incited and won the Great Sioux War, and “renegotiated” a new treaty with the Sioux under threat of starvation. In that document, the tribe ceded much of the Laramie land, including the Black Hills of South Dakota, where many whites believed there to be gold.

In the decades that followed, other land previously controlled by the Sioux was doled out by the federal government as homesteads to Native families; when those farms failed, the government often repossessed the land. And in 1980, the Supreme Court ruled that the Black Hills were taken unjustly, and it ordered the U.S. government to compensate the Sioux tribes fairly for them. But the Sioux declined the payment—which still sits in U.S. Treasury accounts, earning interest—because they seek possession or co-ownership of the land itself.

Of course, this history does not answer whose land it really is: American law still respects the underlying logic of the “doctrine of discovery,” the idea that European Christians could lay claim to land if they were the first to document it. But it is in partial recognition of the painful history of colonial land grabs that modern federal law accords certain rights to Native groups. Since 1992, one of these rights could be described as the right to be consulted: Whenever a federal agency undertakes or approves a construction project, it must consult with local Native nations or tribes about whether sacred sites or places are nearby.

This right must be respected even if the project isn’t near reservation land. In fact, in a bit of federal rule-making worth reading in full, the committee that oversees historic preservation on behalf of Congress explicitly decrees that “regulations require Federal agencies to consult with Indian tribes when they attach religious and cultural significance to a historic property regardless of the location of that property”:

The circumstances of history may have resulted in an Indian tribe now being located a great distance from its ancestral homelands and places of importance. It is also important to note that while an Indian tribe may not have visited a historic property in the recent past, its importance to the tribe or its significance as a historic property of religious and cultural significance may not have diminished for purposes of Section 106.

Crucially, as well, federal agencies must approve projects in a “government-to-government” way. A local tribe is not supposed to be hustled in at the end for a rubber stamp, but included throughout the process as a collaborative body.

It is this right—the right to be consulted—that the Standing Rock Sioux and their legal team assert was infringed. The Army Corps of Engineers must approve and permit any interstate pipeline. The tribe alleges that not only was the permitting of Dakota Access rushed, but also that the tribe itself was not included as partners through the historical surveying process. Only near the end of the process, when approval seemed inevitable, did North Dakota state authorities approach the tribe with a couple areas of concern. They did not present plans for the pipeline at the beginning, as government-to-government negotiations should entail.

The tribe’s arguments are bolstered by two other allegedly broken laws. If the pipeline ever leaked or broke, it could spill into the Missouri River upstream of the tribe’s major population center. The Missouri River is also the tribe’s only source of water. Because the Army Corps failed to involve the tribe in its permitting, it could have violated the Clean Water Act and the National Environmental Policy Act.

“These are valid claims and, as alleged, they are strong claims,” says Sarah Krakoff, a professor of environmental resource and Indian law at the University of Colorado Boulder. “These [federal provisions] are intended to slow this process down, so that they can make sure the right environmental decision is being made.”

She added, “the Clean Water Act has substantive provisions that prefer good environmental outcomes to bad. And the proximity of this pipeline to their main water source does make their legal case stronger than some I’ve seen.”

Jan Kasselman, an attorney with Earthjustice representing the Standing Rock Sioux tribe, speaks in front of D.C. district court on Tuesday. (Pablo Martinez Monsivais / AP)

The legal situation could still grow more difficult for the Corps. Last month, the White House ordered federal agencies to consider the environmental costs of greenhouse gases when they review a federal project under the National Environmental Policy Act (NEPA). The Obama administration has been hinting that federal agencies should take climate change into consideration in plans like these since 2014.

“If I were an attorney, I would argue that the Corps should take those [new NEPA guidelines] under effect immediately—look, the agencies have been on notice, they don’t have to wait around to be told to do so,” said Krakoff. If that argument were to hold, the case could set a broader precedent for the environmental risks inherent to any fossil-fuel infrastructure.

That kind of ruling is six or 12 months off, though. For now, members of the Standing Rock Sioux are waiting for the judge’s ruling on an injunction on construction, which is meant to come down this week or next. And they are mourning the losses of last weekend.

On Saturday, protestors and private security officers, armed with dogs, clashed near the site itself. A tribe spokesman told the AP that six people were bitten by the dogs, including a child. And the local sheriff’s office said that two dogs were injured and that one security officer was taken to the hospital.

But more importantly, recently documented archeological findings were lost forever. “Dakota Access had destroyed sites that we submitted into evidence,” said Stephanie Tsosie, an attorney at the nonprofit Earthjustice, which is arguing the case for the Standing Rock Sioux. “What they did was just awful.”

“It is important to remember that tribes across America have been here since time immemorial. And Federal Indian law has a long history—there are statutes and consultation requirements—precisely to recognize that tribes have been here since time immemorial,” she added. Tsosie is also an enrolled member of the Navajo Nation.

“The tribe has always tried to engage the Corps in consultation. I don’t know if I would call it a surprise, but the Corps had the opportunity to do the right thing.”