Feds Step In on Dakota Pipeline, Citing Need to Recognize Tribal Rights

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September 9, 2016; Colorlines

Although United States District Court Judge James Boasberg declined to halt the construction of the Dakota Access Pipeline, last Friday, in an unexpected move, the Department of Justice, the Department of the Army, and the Department of the Interior jointly ordered (by withdrawing authorization) that Energy Transfer Partners, the company behind the pipeline, hold off on construction until the Army Corps of Engineers can “determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe [Missouri River] site under the National Environmental Policy Act (NEPA) or other federal laws.”

The statement was unprecedented in any number of ways and could mark a turning point for the prospects of success in environmental activism on the part of tribes:

We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act. However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain. Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved—including the pipeline company and its workers—deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

The statement went on to declare that the federal government needs to revisit the ways in which the concerns of tribes are taken into account in these types of projects

This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

Meanwhile, as a more permanent halt is pursued, the Oceti Sakowin (Seven Council Fires) camp, where thousands of Native Americans from many different tribes have gathered as protectors over the past month, will be maintained as a base to protect the Standing Rock Sioux’s sovereign, cultural, and environmental rights. And the joint statement assertively supported their right to do so.

Finally, we fully support the rights of all Americans to assemble and speak freely. We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence. Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities. The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety.

In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites. It is now incumbent on all of us to develop a path forward that serves the broadest public interest.

As readers will remember, President Barack Obama vetoed the Keystone XL Pipeline bill in February 2015. Keystone XL was also set to cross Native lands and waters. In this case, according to Inside Climate News,

The original route for the proposed pipeline crossed the Missouri River further north, upstream of Bismarck, the state capital, but the route was changed when the company said it found that the new route near Standing Rock was shorter and less costly. Also listed as a concern was the close proximity to wells providing Bismarck’s drinking water supply.

“A statement like that says they don’t believe it’s safe, so they wanted it moved to the lowest impact area, which they consider to be the reservation,” said Steven Willard, a member of the White Earth Chippewa tribe and a plant operator at a nearby water treatment facility. “Well, we’re just as important. My kids drink this water.”

And, indeed, that attitude resonates among Native Americans across the country who have suffered similar environmental and cultural assaults. There have been representatives of more than 120 tribes at the camp, including Navajo from Arizona, where a mine “cleanup” polluted their water, and the Prairie Island Indian Community from Minnesota, “where the federal government flooded sacred burial mounds and sited a nuclear power plant and fuel storage facility near their land.”

In a statement, David Archambault II, chairman of the Standing Rock Sioux Tribe, said, “Today, three federal agencies announced the significant decision to respect tribal sovereignty and stop construction of the Dakota Access Pipeline on Army Corps land. […] Our hearts are full, this an historic day for the Standing Rock Sioux Tribe and for tribes across the nation.”—Ruth McCambridge