When the U.S. government called for Dakota Access, a pipeline developer, to pause building an oil line on federal land in North Dakota two weeks ago, the move caught everyone by surprise. A federal court had just declined a tribe’s request to halt the project, now more than 60 percent complete, just like other state agencies and courts elsewhere had sided with the developers.
“We got an unexpected announcement in relation to the court decision. Could be a game-changer,” Earthjustice, which is representing the Standing Rock Sioux Tribe in court, told reporters via email that Friday afternoon. “Please wait on your story.”
By then many news sites — including ThinkProgress — had already reported that a judge concluded the federal government had “likely” complied with consulting with tribes when it gave Dakota Access permits to build through the Missouri, the longest river in North America. And moreover, that the Standing Rock Sioux Tribe didn’t prove it would suffer harms that an injunction could prevent.
The tribe had long pushed back against the project’s permits to no avail, saying that the pipeline — set to run within half a mile of its reservation in North and South Dakota — would damage sacred Native American sites, and threaten the Missouri River, the tribe’s sole water supply, for years to come.
That court decision was a major blow because it meant the tribe would likely have to defend the lawsuit it filed against the Army Corps of Engineers, the permitting agency, as the pipeline went into the ground.
A turning point
But all that changed when the Obama Administration suddenly called for a pause in construction on federal land, and said it wouldn’t authorize the last permit Dakota Access needs to cross Lake Oahe — a dammed section of the Missouri River — until agencies determine whether there’s a need to reconsider any of the previous decisions about the lake crossing. The government also said it will invite tribes to government-to-government meetings to discuss what the federal agencies should do to ensure tribal input into infrastructure reviews, tribal land protection, and even explore if legislation should be proposed to Congress.
Experts on tribal law told ThinkProgress the road ahead is long and complicated, but that tribes have already won a significant victory. Talks of reforming tribal consultation laws are a major, perhaps unintended, development of the Dakota Access controversy. Though tribes across the nation have raised this issue over the years as they have been historically unable to influence projects that affect them and the land they hold sacred, experts said.
Even renewable energy projects permitted by the federal government have allegedly trampled on sacred sites in recent times. Roughly four years ago, for instance, some eight tribes in the Southern California desert, just east of San Diego, unsuccessfully fought a 112-wind turbine project that was located on what the tribes considered sacred land covered with confirmed cremation sites and praying circles.
Similarly to the North Dakota case, tribes maintained then there was a consistent lack of meaningful consultation, which is when agencies or companies discuss with tribes actions that may affect them in hopes of solving concerns. But over the years, consultation procedures have often proven insufficient, as exemplified in North Dakota.
“From New York, Nebraska, California, Washington State, really, anywhere there is Indian land you can find examples of pollution [or] disruption of sacred sites and other important cultural areas,” said James Meggesto, co-chair of the Native American Law Practice at Holland & Knight.
In North Dakota, destruction of sacred sites already allegedly took place earlier this month, when Dakota Access crews bulldozed over documented sacred sites, including graves, stone rings, and effigies. That prompted clashes between Native American demonstrators and the company’s security personnel. The confrontation raised the profile of the North Dakota standoff to new heights and emboldened Native American calls for a halt in construction.
“Anywhere there is Indian land you can find examples of pollution [or] disruption of sacred sites.”
The road ahead
A week ago, an appeals court made a construction pause around the lake official, as it slapped Dakota Access with a temporary court injunction after the tribe successfully appealed the first court ruling
Experts say, however, that the week-old court injunction on the Dakota Access pipeline could be short-lived, because an appeals court could rule against extending the construction halt after the next round of oral arguments, currently set for October 5. In the coming weeks, the government is also likely to finish its permit review, James Hansen, attorney for the Standing Rock Sioux Tribe, told ThinkProgress.
Hansen said there is a possibility the government finds the permits legal, but noted that so far “the opportunity that’s been provided by the government is very positive. It shows for the first time somebody is listening.”
Still, the lawsuit will likely be an uphill battle for the tribe and take several months to resolve. Even as this lawsuit develops, it’s theoretically possible Dakota Access will steer clear of injunctions or federal calls to pause and manage to keep building, as the majority of the construction is happening across state land.
“But the fact that the thing is built doesn’t make it legal and, you know, there are examples of courts saying you got to pull this [pipeline] out or you can’t use it,” Hansen said.
The federal lawsuit is expected to be complicated and slow-moving. The tribe will in part argue there was a lack of meaningful consultation because the Army Corps only agreed to discuss minor portions of a 1,172-mile pipeline. “The consultation that everyone has referred to is a bunch of disagreements about whether that was the right scope of analysis,” Hansen said.
“In my view, the strategy always was to try to jam this thing into the ground before anybody even knew what was going on,” he added. The company “started building before they had all their permits.”
For its part, the Army Corps, which has jurisdiction over about 1 percent of the project, has said in court the tribe canceled several scheduled meetings, and is likely to elaborate on that argument as it claims the tribe was not forthcoming. The agency will also have to fend off allegations of Clean Water Act violations stemming from the issued permits. The Clean Water Act is the primary federal law governing water pollution.
All of that litigation could be avoided, or at least come to a pause if the U.S. government finds issues in the permitting and decides the project should have a full environmental impact statement, according to Hansen.
“Tribes are increasingly having a political voice that is paid attention to.”
Regardless of what happens, experts say the tribe may have already secured a win by getting the government to reconsider how it interacts with Native American tribes in general.“This is really a new era in federal-tribal relations, where tribes are increasingly having a political voice that is paid attention to,” said James Grijalva, director of the Tribal Environmental Law Project at the University of North Dakota.
“Fifty years ago, essentially a tribe complaining about a federal action got little to no media attention, and little to no federal attention,” he said.
A growing support
But that may now be changing, in part because the Standing Rock Sioux Tribe has managed to ignite thousands of self-proclaimed protectors that have camped near the pipeline construction site in North Dakota for several months. All while some 200 tribes and numerous environmental organizations across the country are raising their fists in solidarity demonstrations, and encouraging their members to open their checkbooks in support of a movement that resembles the tribal resistance of 1960s and 1970s.
“Right now, we’re asking our followers to contribute to efforts on the ground… Or contribute to farmer and landowner organizing efforts in Iowa,” said Dani Heffernan, communications coordinator at 350.org., in an email to ThinkProgress.
Online contribution drives have raised nearly half a million dollars for the Standing Rock Sioux Tribe’s legal fees and the protest camp. “We’ve also been urging folks to add their voices to a petition calling on President Obama to stop the Dakota Access pipeline,” Heffernan added.
Obama is scheduled to meet with leaders of hundreds of Native American tribes for his eighth and final Tribal Nations Conference at the White House next week. Tribal consultation is expected to be front and center. Meanwhile, some lawmakers are looking into revising tribal consultation practices, which are based on the U.S. Constitution, treaties, executive orders, and acts intended to protect historical sites like the National Historic Preservation Act.
On Thursday, Rep. Raúl M. Grijalva (D-AZ) and Rep. Raul Ruiz (D-CA), will host a House Natural Resources Committee Democrats forum on the Dakota Access pipeline. Among various things, the forum will examine federal responsibility to protect tribal cultural resources and environmental justice.
(To watch the forum click here)
Grijalva, who along with Ruiz visited the North Dakota campsite weeks ago, reintroduced over the summer the RESPECT Act. This act would set detailed procedures for the timing, implementation, culmination, and documentation of agency consultation with tribes. This comes as experts note that unlike Canada, the U.S. doesn’t have a universal legal requirement to consult with tribes.
“The sad truth is that the unjustified permitting of the Dakota Access pipeline isn’t an isolated incident. For far too long, tribes across the country have been trampled on and left out of critical decisions that impact their sacred lands, cultural heritage, and drinking water,” Grijalva said in a statement to ThinkProgress.
But not all lawmakers have been as eager to put a spotlight onto the tribes’ fight. Just last week, Senate Committee on Indian Affairs Chairman John Barrasso (R-WY) declined to hold a Senate committee hearing the International Indigenous Youth Council of Standing Rock, as Oceti Sakowin Youth encampment requested.
“We are asking for grievances to be aired,” Caro Gonzales, spokeswoman for the Youth Council said in a statement. “We deserve nothing less.”
The Dakota Access pipeline would be the largest oil line out of North Dakota’s Bakken oil field. It would move more than half a million barrels of crude oil daily through the Dakotas, Iowa, and into a hub in Illinois. It has the backing of labor unions in various states and supporters tout thousands of jobs and millions in tax revenue. Dakota Access, a subsidiary of Texas-based Energy Transfer Partners, did not respond to a request for comment.