By Laura Page
Associate Editor, Vol. 22
After months of protests, the Standing Rock Sioux Tribe recently celebrated a minor victory, with the U.S. Court of Appeals for the D.C. Circuit granting a temporary injunction of the construction of the Dakota Access Pipeline (DAPL). In its decision, the court emphasized that the injunction was merely temporary and “should not be construed in any way as a ruling on the merits” of the Tribe’s appeal for permanent injunction.
It has been a long road for the Tribe, who opposes the construction of the pipeline on the grounds that it will jeopardize their water supply and threaten cultural resources. On September 9, the district court denied the Tribe’s request for an injunction on the building of DAPL, a 1,168-mile-long crude oil pipeline running from North Dakota to Illinois. Hours later, the Department of the Interior, Department of Justice, and Army Corps of Engineers issued a joint statement voluntarily halting construction “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.” The newly granted injunction will make the government’s request for a voluntary pause on construction within 20 miles of Lake Oahe an enforceable requirement while the Tribe’s appeal process continues.
On appeal, the Tribe maintains its opposition to the project on two major grounds. First, that the pipeline as proposed would pass under the Missouri River at Lake Oahe, half a mile upstream of the Standing Rock reservation boundary and its water supply – an area where, the Tribe says, any possible leak or spill would be “culturally and economically catastrophic.” On this ground, the Tribe brings claims under the Clean Water Act and the National Environmental Policy Act.
Secondly, the Tribe argues that construction violates regulatory provisions of the National Historic Preservation Act, 36 CFR 800. The statute requires Federal agencies to consult with any Indian Tribe that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This consultation process is commonly called a § 106 review.
Regarding the consultation requirement, Standing Rock argues that the Army Corps of Engineers bypassed its responsibility to meaningfully consult the Tribe before authorizing construction because the pipeline would pass through areas of cultural significance, sacred sites, and burial grounds. Specifically, the Tribe argues in its complaint that “the out-of-state, non-Tribal consultants hired by DAPL to do cultural surveys are unable to assess the potential cultural significance of sites in this area to the Tribes.” Further, “the Tribe has never had the opportunity to discuss protocols for cultural surveys, or participate in the surveys that were conducted. Instead, it was provided copies of partial surveys after they were completed.”
This contention raises serious questions about the mechanisms by which the federal government accomplishes its objectives – even if the government fulfilled its obligations under § 106, can the results of that review be legitimate if the tools used fail to recognize the cultural values they aim to assess? This issue becomes more significant when the question of Tribal sovereignty comes into play. Under § 106 review, the federal government must engage Tribes in “government-to-government” consultations – a channel of communication that the Standing Rock Tribe argues it was not afforded.
In its joint statement, the Army Corps of Engineers acknowledged what appears to be the root of this controversy – the government’s disregard of Tribal sovereignty, lack of cultural competency when engaging in government-to-government negotiations with Tribes, and continued encroachment on Tribal and ancestral lands:
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.
It is unclear when or how these issues will be resolved, or how new regulations or legislation will impact already strained U.S.-Tribal relations. For now, the Standing Rock Sioux have no plans to back down. Joining a long history of Native American resistance to government action, David Archambault II, Chairman of the Standing Rock Sioux Tribe, has a message: “It’s far from over, and we knew this coming in. Regardless of the outcome from the court’s decision, this was the beginning. It’s the start. We finally are getting people to hear.”