The Problem with the Dakota Access Pipeline

Friday September 9th was a roller coaster. When Judge James Boasberg issued his ruling against the injunction filed by the Standing Rock Sioux Tribe and allowed construction to continue on the Dakota Access Pipeline across the Missouri River, Native people and other protesters throughout Indian country felt like we had just been punched in the gut.

However, only a little while later word began to circulate about a joint statement issued by the Departments of Justice, Army, and the Interior. President Obama, apparently, had organized a partial concession to the injunction, temporarily halting construction, and committing the US Army Corps of Engineers to determine if they needed to reconsider the access granted to the pipeline.

Just two days earlier, when asked about the Standing Rock Sioux and the Dakota Access Pipeline by a foreign journalist, President Obama seemed clueless regarding the details of what was happening on the very reservation he visited just two years earlier.  Could he have really gotten up to speed, organized a multi-agency reversal, and got them to respond that quickly?

At about 3 PM EDT, Judge James Boasberg issued his ruling on the injunction requested in the lawsuit. He expressed an awareness of the historical injustices against Native peoples by stating, “Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic. America’s expansionist impulse in its formative years led to the removal and relocation of many tribes, often by treaty but also by force.” But he went on to rule in favor of Dakota Access Pipeline and the US Army Corp of Engineers and allowed the construction of the pipeline to continue.

How could this happen? How could a judge acknowledge that his nation’s history against Natives has been contentious, tragic, biased, and unjust, and then immediately turn around and once again rule against us by trampling our rights and allowing for the destruction of our sacred sites?

We have a deep rooted and systemic problem in this country and the fruit of this problem results in Judges like James Boasberg acknowledging the historical oppression and unjust history against Native Americans, but ultimately perpetuating that system by ruling in favor of a multi-billion-dollar pipeline that is careening its way through Turtle Island. Approving the project of a for-profit company that is laying waste to sacred sites of Native tribes, threatening waterways of many communities, and granting eminent domain to grab land throughout the state of Iowa.

But the pipeline is not the problem. The greedy executives and shareholders of Energy Transfer (parent company of Dakota Access Pipeline) are not the problem. And Judge Boasberg is not the problem.  I'm not saying they are not complicit to the problem. Nor am I saying they are not guilty of exploiting the problem. Because they definitely are, on both counts. But they are not the root of the problem.

The problem is the Constitution of the United States of America.

If that sounds crazy and you feel tempted to stop reading, don't. It's unfortunately very true and actually quite simple to explain.

The Constitution, like most of the founding documents of the United States, has been deeply influenced by what is called the Doctrine of Discovery.  The Doctrine of Discovery is a series of Papal Bulls (official edicts of the Catholic Church) written in the 1400's. They are essentially the church in Europe saying to the nations of Europe, wherever you go, and whatever lands you find not ruled by Christian rules, those people are less than human and the land is yours for the taking.

This was the doctrine that allowed European nations to colonize the continent of Africa and enslave the African people. Because they saw them as less than human. It was also this doctrine that allowed Columbus, who was lost at sea, to land in a New World that was already inhabited by millions of people and claim to have "discovered" it.

You cannot discover lands that are already inhabited. That process is known as conquering, colonizing, or stealing. The fact that the United States teaches what Columbus did as discovery reveals the implicit racial bias of the country; that Native Americans are less than human.

The influence of the Doctrine of Discovery is so deep that the Declaration of Independence, 30 lines below the statement "All men are created equal" refers to natives as "merciless Indian Savages." Making it abundantly clear that the only reason the founding fathers used the inclusive language "All men" is because they had a very narrow definition of who was actually human.

The Constitution of the United States begins with the inclusive words "We the people" but then quickly, in Article I Section II, very narrowly defines who "we the people" actually refers to. It never mentions women, specifically excludes Natives, and counts African slaves as 3/5th of a person. Article I, Section II of the United States Constitution demonstrates that this document was written to protect the rights and interests of white, land owning men!

In the 1823 Supreme Court Case Johnson v M'Intosh, two men of European descent were litigating over a single piece of land. One received the land from the Government, and the other acquired it from a Native tribe. They wanted to know who actually owned it. In deciding the case SCOTUS needed to determine the principle basis for land titles. They decided that the basis was discovery. Which should mean title to the land belonged to the Native tribes. But then SCOTUS used the Doctrine of Discovery to conclude that Natives only had the right of occupancy to land (like a fish occupies water or a bird occupies air), while Europeans had the right of discovery to the land and therefore the true title to it.

This case used the Doctrine of Discovery as a legal instrument to help establish the legal precedent for land titles.  This precedent and the Doctrine of Discovery was referenced by SCOTUS as recently as 2005 (City of Sherrill v. Oneida Indian Nation of New York).

The Constitution was NOT written to give justice to natives and other minorities. And this is evident in many of the issues plaguing our nation today.

Women earn 70 cents to the dollar. Why? The constitution is working.

US prisons are filled with people of color. Why? The Constitution is working.

In 2010 the Supreme Court of the United States ruled for Citizens United and declared that corporations have the same rights to political free speech as individuals, opening the door to unlimited financial political contributions. Why? The Constitution of the United States of America is working. It is protecting the interests of white, land owning men.

What this means is that US Courts and the United States judicial system is not the arena for people of color, especially Natives and African Americans, to seek justice. The Constitution, which is the basis of all US law, was not written to protect us. Therefore, the primary way we (minorities) receive justice from this racist legal system is almost entirely based on the whim of the judge, or in the case of Dakota Access Pipeline, the benevolence of the President.

A few minutes after Judge Boasberg delivered his ruling in favor of the Dakota Access Pipeline, the Department of Justice, the Department of the Army, and the Department of the Interior issued a joint statement partially conceding to the injunction filed against the US Army Corp of Engineers; that they did NOT properly consult the tribes regarding their lands and therefore construction needed to be temporarily halted while the determination is made if the permits need to be reconsidered. Here is a quote from that statement:

"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."

Was this a victory? Had months of prayers, protests, marches, speeches, petitions and demonstrations finally had paid off?

Yes, I believe they had. But the victory was not quite as clear as many of us wanted to believe.

First of all, the US Army Corp of Engineers, the entity the case was brought against, only has jurisdiction of the waterways and lands extending 350 feet on either side of the waterways. This is the justification that Judge Boasberg gave for giving a split judgement in the Emergency Hearing on Monday, September 6th. Because of this limited jurisdiction, the joint statement went on to acknowledge that the government could only halt construction bordering and under Lake Oahe. The agencies had to ask Dakota Access Pipeline to voluntarily halt construction beyond their jurisdiction.

"Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time...In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe."

Second, the joint statement only commits to halt construction until the Army determines “if it needs to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.” It does not ultimately deny or revoke the Dakota Access Pipeline, in fact it doesn’t even guarantee that it will reconsider previous decisions. It only commits to a process of determining if it need to reconsider. Thus, the halt on construction is both flimsy and temporary, while the Corps moves "expeditiously" to make a determination.

Third, the joint statement does not specifically commit the agencies to consulting with tribes regarding the Dakota Access Pipeline. It only commits them to determining if they need to reconsider previous decisions.

Finally, and I believe this was the best news of the day. The joint statement acknowledged that what happened to the Standing Rock Sioux is part of a broader systemic problem and it proposed a process to address the broken system.

“Furthermore, 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.”

This is the good news. The broken, foundational, statutory frameworks of this country are the problem. The racism embedded in the Declaration of Independence, the Constitution, and the legal precedents of the Supreme Court are the problem.

Currently, the primary way Natives, and other minorities, get justice in this systemically racist system is entirely based on the whim of the judge, or in the case of Dakota Access Pipeline, the benevolence of the President.

Photo by Kris J Eden

On Friday, Sept. 9, 2016 the United States judicial system worked the way it was designed to; Judge Boasberg and the US District Court in Washington DC protected the rights of white, land owning men. But President Obama intervened. He overrode the system and gave some justice to a group of people the Constitution of the United States was not written to protect - Native Tribes.

But he didn’t stop there. He acknowledged what we (Natives) have known for a long time. Our tribes cannot live alongside or participate with a government that was specifically to designed to dehumanize, colonize, and ultimately destroy us, until we make changes to the foundations of that government.

My relatives, this is the battle. This is the beginning of the change we need.  The struggle is far from over. There is still a long, hard, and uncertain road ahead. But the light at the end of this tunnel is slowly getting brighter and is beginning to make the path before us a little clearer.

Pray for the wisdom of our tribal leaders. Pray for a post-colonial posture at that table this fall. And pray for the endurance of our Native people.

Water is life. It is more important than wealth. It is more valuable than oil. And we (Natives) need to take our seat at the table and instruct this nation of immigrants in what it means to value life and live sustainably here on Turtle Island. And that includes pointing out and addressing the racist foundations the United States of America is built upon.

Mark Charles
(Navajo)