Does the Dakota Access Pipeline Violate Treaty Law?

Lauren Kimmel

Vol. 38 Associate Editor

It’s hard to miss recent headlines about the Dakota Access Pipeline (DAPL), which has stirred fresh controversy in a wide array of political, environmental and ethical circles. At the head of the opposition are a number of prominent Native American tribes in Iowa and the Dakotas – most notably, the Standing Rock Sioux.[1] The Standing Rock Sioux and their allies argue that construction of the pipeline will substantially compromise its own access to safe water, as well as the tribe’s historical rights to the territory.[2] The pipeline also raises a number of grave concerns about the environment, including “everything from farming and drinking water to entire ecosystems, wildlife and food sources.”[3] Additionally, there remain questions of wrongful use of eminent domain[4] and risks of oil leakage.[5] In recent weeks, thousands of people have come out in opposition to the pipeline’s construction, with some assembling at the Standing Rock Sioux Reservation – where construction of the “black snake” has already begun – in a gesture of solidarity with the Standing Rock Sioux and other Native American groups.[6] The situation has escalated so dramatically that the United Nations Permanent Forum on Indigenous Issues has sent human rights observers to investigate alleged intimidation tactics and harsh and humiliating treatment by the law enforcement at Standing Rock.[7] But beyond the pipeline’s serious implications for the health and welfare of Native American groups and for the surrounding environment, the controversy also implicates federal and international law. It has been reported that “over 380 sites would potentially be destroyed by the DAPL project despite the numerous federal laws and policies concerning such sacred, historical and archaeological sites.”[8] Further, representatives of the Standing Rock Sioux Tribe argue that the pipeline’s construction constitutes a direct violation of the Treaty of Fort Laramie of April 29, 1868, also known as the Sioux Treaty, which serves, in part, to delineate land rights between the U.S. Government and the many different bands of the Great Sioux Nation.[9] At the time of the treaty’s signing, the United States treated Native Americans as constituting several sovereign nations, thus demonstrating how principles of international law come into play in a seemingly domestic-only dispute.[10] The Sioux at Standing Rock have focused chiefly on Article II of the treaty, which serves to identify and protect the tribe’s unceded land: The United States agrees that the [geographic location known as the Standing Rock Sioux Reservation] shall be . . . set apart for the absolute and undisturbed use and occupation of the Indians . . . and the United States now solemnly agrees that no persons, except those herein designated and authorized . . . shall ever be permitted to pass over, settle upon, or reside in the territory . . . and henceforth they will and do hereby relinquish all claims or right in and to any portion of the United States or Territories. . . .[11] On its face, the language of the treaty seems to suggest that construction of the DAPL, which is set to run directly through the reservation, would compromise the Standing Rock Sioux’s right to exclusive use and enjoyment of the land, thus triggering a direct violation of the treaty. Further, even if the United States is to assert that an exception to the treaty should be made, the Sioux have alleged “over and over again that they were not adequately consulted on this project, that they were not consulted until after construction had already gotten underway.”[12] In other related documents, it appears that the United States may have come into conflict with a number of additional international agreements, such as the International Covenant on Civil and Political Rights[13], the UN Declaration on the Rights of Indigenous Peoples[14] and the UN Declaration at the World Conference on Indigenous Peoples.[15] But whether the United States, as a matter of international law, has violated its agreement with the Great Sioux Nation depends additionally on whether the U.S. Government holds the Sioux Treaty to be valid in the first place. Indeed, the relationship is perceived by many as a “history of broken promises.”[16] Despite claims by Native American groups to the contrary, the U.S. Supreme Court has consistently ruled in the government’s favor on this question. In Lone Wolf v. Hitchcock, the U.S. Supreme Court held that the federal government “possessed full power” to unilaterally abrogate the provisions of U.S.-Indian treaty.[17] Later, in United States v. Sioux Nation of Indians, the Court held that the taking of the Black Hills, an area guaranteed to the Sioux under the Fort Laramie Treaty of 1868, “effected a taking of the Black Hills for which just compensation was due” but declined to comment on whether the treaty had been breached.[18] Ultimately, what are the implications of the United States violating treaty law? The United Nations Permanent Forum on Indigenous Issues recently called upon the United States to fulfil its “trust responsibility and fiduciary obligation”[19] to the Great Sioux Nation, whose “treaties guarantee significant rights.”[20] What is clear is that this long fight is far from over. Reports Seattle Times reporter Lynda Mapes: “There’s a sense of having been pushed for 150 years off the lands that were their lands because someone else wanted them to make money. . . .There is very much a feeling among tribal members who keep saying enough is enough.”[21]

[1]Jack Healy, North Dakota Oil Pipeline Battle: Who’s Fighting and Why, N.Y. Times (Aug. 26, 2016), http://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html. [2]Carl Sack, A #NoDAPL Map, Huffington Post (Nov. 2, 2016), http://www.huffingtonpost.com/entry/a-nodapl-map_us_581a0623e4b014443087af35. [3]Camp of the Sacred Stones, Pamphlet, Zine: No Dakota Access 4 (2016), https://d3n8a8pro7vhmx.cloudfront.net/honorearth/pages/2267/attachments/original/1470612897/ND_ZINE_updated.pdf?1470612897. [4]William Petroski, 296 Iowa Landowners Decline Bakken Pipeline, Des Moines Reg. (Feb. 9, 2016), http://www.desmoinesregister.com/story/news/local/government/2016/02/09/296-iowa-landowners-decline-bakken-pipeline/80085982/; Alejandro Dávila Fragoso, For-Profit Pipelines Are Growing and So Are Eminent Domain Battles, Think Progress (June 7, 2016), https://thinkprogress.org/for-profit-pipelines-are-growing-and-so-are-eminent-domain-battles-2b8beee7af3c#.eqonzngor. [5]Douanne Eller, Unlikely Allies Join to Fight Pipeline Project, Iowa City Press-Citizen (Dec. 4, 2014), http://www.press-citizen.com/story/money/agriculture/2014/12/04/pipeline-proposal-creates-unusual-allies/19866127/. [6]Sack, supra note 2. [7]Sam Levin, Dakota Access Pipeline Protests: UN Group Investigates Human Rights Abuses, The Guardian (Oct. 31, 2016), https://www.theguardian.com/us-news/2016/oct/31/dakota-access-pipeline-protest-investigation-human-rights-abuses; see also Alvaro Pop Ac, Secretariat of the Permanent Forum on Indigenous Issues, Statement on the Dakota Access Pipeline (North Dakota, USA) (Nov. 4, 2016), https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2016/11/StatamentDAPL_4Nov-2016.pdf. [8]Chief Edward John, Expert Member of the U.N. Permanent Forum on Indigenous Issues, Firsthand Observations of Conditions Surrounding the Dakota Access Pipeline (North Dakota, USA) (Nov. 1, 2016), https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2016/11/Report-ChiefEdwardJohn-DAPL2016.pdf. The Standing Rock Sioux allege violations of the Pipeline Safety Act, Clean Water Act and National Environmental Policy Act, as well as a handful of executive orders. See Camp of the Sacred Stones, supra note 3. [9]Treaty of Fort Laramie, U.S.-Sioux Nation, Apr. 29, 1868, U.S. Nat’l Archives, https://ourdocuments.gov/doc.php?doc=42&page=transcript. A treaty by the same name originally drew these lines in 1851 but was effectively superseded by the 1868 treaty. See Patricia C. Albers, The Home of the Bison: An Ethnographic and Ethnohistorical Study of Traditional Cultural Affiliations to Wind Cave Nat’l Park 89–90 (2003). [10]See Raymond J. DeMallie, American Indian Treaty Making: Motives and Meanings, 3 Am. Indian J. 2, 2 (1977) (“It has long been the custom of Great Britain and her American colonies to treat with Indian tribes as sovereign nations equivalent to European nations. . . . In 1871 the United States Congress voted to stop making treaties with Indian tribes, feeling that Indian tribes were no longer sovereign nations, since they had in large part become dependent on the economy of the United States.”). For more background information on treaty law, see What Is Treaty Law?, Organization for the Study of Treaty Law, http://www.treatylaw.org/what-is-a-treaty/. [11]Id. (emphasis added). [12]Standing Rock Sioux Continue Opposition to Dakota Access Pipeline, NPR: All Things Considered (Oct. 30, 2016), http://www.npr.org/2016/10/30/499985883/standing-rock-sioux-continue-opposition-to-dakota-access-pipeline. [13]G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1966; entered into force Mar. 23, 1976). [14]G.A. Res. 61/295, U.N. Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/61/L.67 (Sept. 13, 2007). [15]S.C. Res. 69/2, U.N. Doc. A/RES/69/2 (Sept. 25, 2014). [16]NPR, supra note 12. [17]Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903). [18]United States v. Sioux Nation of Indians, 448 U.S. 371, 407 (1980). [19]John, supra note 8. [20]Id. [21]NPR, supra note 12.