When the Legal System Fails: The DAPL Protest Part 1

Last night I read a thoughtful post by an Independent friend of mine, in which she decried the failure of the mainstream media to cover the North Dakota Access pipeline protests. I fell down a little bit of a rabbit hole when I read this friend’s post, which was limited to the issue of critical analysis in the media, because one of her friends set forth a very logical rebuttal against the merits of the protest itself. According to this rebuttal, which was well-supported by citations to relevant case law, the tribe shouldn’t be given the attention it is receiving because it didn’t follow the proper procedures over the last two years, while negotiating with the government and with the energy company trying to build the pipeline.

I was a lawyer and a constitutional history major before I was called to the ministry, and I felt troubled when I read allegations to the effect that the tribe is somehow in the wrong and should not be opposing the pipeline. I learned in law school to question everything, and I have been reminded as of late just how important it is to dig into the original source materials—to form your own opinions.

Protestors Appear at the White House

So I read the entire federal court decision on the Standing Rock Sioux Tribe (Tribe) against the Army Corps of Engineering last night. If you’d like to inform yourself, you can read the decision here.

The Tribe, in case you’re unaware, is protesting the erection of a massive pipeline in the vicinity of their tribal lands in North Dakota. The Tribe filed a lawsuit against the Army Corps of Engineering to stop the Dakota Access Pipeline (DAPL). The Tribe claimed in the case that the pipeline will disturb sacred tribal burial sites and that the pipeline will (both specifically and in general) harm their water supply as well as the nation’s water supply. According to an article I read yesterday, the Standing Rock Sioux failed to comply with United States regulations that provide for exactly how an entity or a people should consult with the U.S. government when they disagree with a proposed energy project.

Sure enough, the judge in the U.S. District Court for the District of Columbia lawsuit wrote in detail about how the tribe didn’t attend all the meetings, hearings, consultations, and sundry systems set up for civil discourse in these here United States of America.

Supposedly, the fact that the tribe didn’t answer all phone calls, emails, or meeting invites disqualifies it legally from opposing the pipeline construction. The Army Corps tried to include the Tribe in the decision-making process. And Dakota Access re-mapped the pipeline more than a hundred times to avoid historically significant sites. Oh, and the pipeline itself does not go on tribal land, but passes within a half-mile of it:

One place of particular significance to the Tribe lies at the traditional confluence of the Missouri and Cannonball Rivers. Id., ¶¶ 11-12; ECF No. 6-1 (Declaration of Dave Archambault II), ¶ 12. The ancestors to the Standing Rock Sioux gathered in this location to peacefully trade with other tribes. See Mentz Decl., ¶ 36. They also considered the perfectly round stones shaped by the meeting of these two great rivers to be sacred. See Eagle Decl., ¶ 11. Mighty natural forces, however, no longer hone these stones. Id. In 1958, the Corps dredged and altered the course of the Cannonball River to construct a dam. Id. As a result, a large man-made lake known as Lake Oahe now covers the confluence. Id.

Photo from http://www.daplpipelinefacts.com/
Photo from http://www.daplpipelinefacts.com/

The Tribe nevertheless continues to use the banks of the Missouri River for spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation. Id. Naturally, then, the Tribe was troubled to learn in late 2014 that a new pipeline was being planned that would cross the Missouri River under Lake Oahe about a half-mile north of the reservation. See Archambault Decl., ¶¶ 8-12. See case here at 11-12.


Apparently the pipeline where it crosses Lake Oahe travels across ground that has already been used for other pipelines or which is already used for existing overhead utility right-of ways. The Court explains that “[i]n fact, where it crosses Lake Oahe, DAPL is 100% adjacent to, and within 22 to 300 feet from, the existing pipeline.” Id. at 14. So the pipeline has been designed to avoid harming new land owned by the Tribe since it is being built where the land has already been disturbed.

Photo by Dell Hambleton courtesy of http://www.indianz.com/News/2016/09/05/army-corps-backs-restraining-order-again.asp
Photo by Dell Hambleton courtesy of http://www.indianz.com/News/2016/09/05/army-corps-backs-restraining-order-again.asp

I read all of this with interest, and at first I found myself thinking, “Well, maybe the tribe didn’t follow the right procedures, I wonder what that means about the rightness of their protest itself.” But then I recalled my own work as a member of a community, fighting for safer walking trails and lowered speed limits on a road that passed in front of my children’s school. Basically, the citizens of my community banded together to petition for a lowered speed limit, flashing safety lights and a school speed zone, and for reasons complex and frankly silly, the state highway officials as well as the school board opposed passing our safety measures. For years, different people fought to get these safety measures passed, and the issue really came to a head when a child died crossing the street. Still, the state and the school board said, “No” to increased safety measures on our parkway.

To read what happened and to learn more about the DAPL, please read the upcoming blog post, Part 2.

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