This evening the Department of the Army in the US announced that the Dakota Access Pipeline would not immediately be completed. According to the New York Times, “the Department of the Army announced that it would not allow the pipeline to be drilled under a dammed section of the Missouri River.” This news has been welcomed with joy by the Sioux and their allies, but it is unclear if the pipeline will merely be re-routed away from the Standing Rock Indian Reservation or if its completion is in doubt.
The crude oil pipeline, called the Dakota Access Pipeline, stretches almost 1900 km across the north-central US, from North Dakota to Illinois, where crude oil is to be transferred to railroad and then refineries. One sobering thought for those who oppose the pipeline is that President-elect Donald Trump not only approves of the pipeline, he also owns stock in the company constructing it.
To those outside the United States, and for many in the US as well, the legal relationship between the federal government and the 562 federally recognized Indian tribes can be confusing. This is at the heart of this conflict, as is the history of the US government’s treatment of Native American rights.
To begin, there is the issue of the sovereignty of Indian nations. The Bureau of Indian Affairs describes the relationship between tribes and the government this way:
“The relationship between federally recognized tribes and the United States is one between sovereigns, i.e., between a government and a government. This ‘government-to-government’ principle, which is grounded in the United States Constitution, has helped to shape the long history of relations between the federal government and these tribal nations.”
Even so, tribal sovereignty has been eroded by the states and the federal government over the centuries and the text of the Constitution, which recognizes tribes as nations separate from the United States, has given way to a loose hierarchy of federal law over tribal law over state law. So tribal is usually considered superior to the laws of the states (in which Indian reservations are encircled), but this tribal over state supremacy has, by custom, become less the matter of innate sovereignty on the part of the tribes but more because Congress allows it.
At Standing Rock, the first treaty between the US and the Sioux that has relevance to the conflict today is the 1851 Treaty signed at Ft. Laramie. This was intended to bring to an end the violence between the US, its citizens, and the many tribes/bands who signed it. It reserved the area inside the purple line on the map above.
In 1868, another treaty promised the Black Hills to the Sioux forever. (Now they are home to Mount Rushmore National Monument and several other cities, towns, and parks.) More or less immediately after the 1868 treaty, more whites moved into this protected land in part because of mineral strikes. In the process, they killed so many buffalo that tribes clashed with each other as they moved around trying to find more bison on which their civilizations survived. As you can see (though the font is small on the map) these and other stolen lands, promised by treaty, were taken by the US between 1877 and 1910.
The Sioux have never ceded this territory. In 1980, “the Supreme Court awarded eight Sioux tribes $106 million in compensation–the 1877 value of $17.5 million, plus interest. This was payment for what the court called ‘a taking of tribal property.'” This money is still in the bank. The Sioux don’t want it. They want the Black Hills, which are sacred and, I would argue, legally theirs. By 2011, the money in the account was $1.3 billion. A resolution this year in South Dakota House State Affairs Committee to return much of the Black Hills to the Sioux instead was defeated unanimously.
Okay, to the north of the Black HIlls, there are two issues with Dakota Access as far as I can tell. First, it appears the northeastern boundary of the 1851 map is not agreed upon and some people claim the pipeline is slated to run on Indian land.
You can see Standing Rock on the map at the top of this post. The top right part does look a bit different than the map here. I’m not sure. A Reuters article I found helpful states: “The current route runs within half a mile of the reservation. Protesters on Monday said the land in question was theirs under the Fort Laramie Treaty of 1851, which was signed by eight tribes and the U.S. government.” Whether on or off the reservation, the construction of the pipeline apparently destroyed a number of culturally important sites and destroyed several gravesites, despite public testimony about the sites in federal court days before.
The other issue is water. Millions get their drinking water from the Missouri River, which the pipeline will cross adjacent to the reservation. Also, beneath the ground is the Ogallala Aquifer, on which many Sioux are dependent for water and over the which the pipeline runs. The same is true of the also controversial Keystone Pipeline and the Sioux and neighboring tribes were already fighting that pipeline for similar reasons.
The land ownership issue seems like it could be settled without rubber bullets. I don’t know how any new pipeline could be built in that part of the world without concern for subterranean water. But I can’t see the Sioux winning the long game here. The pipeline is almost completed and it is unlikely the US won’t find a way to let it go forward. The United States has such a poor record of recognizing Native American sovereignty, especially where valuable natural resources are involved, that it is difficult to be optimistic about the ultimate ability of the Sioux to control their own water.