When the Legal System Fails: The DAPL Protests Part 2

. . . 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.

Part Two

So we took it to our local political officials as well as to the governor of our state. A local politician formed a committee that included a few citizens, the school’s PTA president, as well as officials from the school board and the state highway safety folks. We would meet once a month, and we’d barter, negotiate, argue . . . but it looked like nothing would get done. Eventually, we came up with an odd but effective tactic to get our school zone sign and our flashing lights. The school wanted to get a hundred million dollar renovation approved by the County. Knowing the way county government land use law works, one citizen suggested that we appear before the zoning board and announce our conditional opposition to the renovation absent the approval of increased safety measures. A few of us in fact showed up at the zoning board, and we made a fifteen-minute presentation. Our measures got approved on the spot.

In other words, we did an end-around the county. We weren’t being heard, even though we were talking and talking and talking. We never stopped talking, mind you, but we went to a different governmental actor, and we found a way to get the complex strands of American democracy to work in our favor. We got a democratic body to strong-arm another arm of government to give us the safety measures we wanted.

When I survey what’s going on with the Tribe and the DAPL, I see a similar tactic being used. The Tribe didn’t think it could get anywhere with the Army Corps or with the pipeline company. Sure, the Tribe tried to use the legal system and the existing governmental processes to oppose the pipeline, and it certainly could be argued that they could have tried harder or used different legal tactics to oppose construction. But my sense from studying the case is that the Tribe (like so many other tribes and like so many citizens) has been down this road before, and it hasn’t been heard.

Indeed, the judge in the D.C. court case recognized just how little Native Americans have been served by our democratic and legal processes:

“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.” Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). Id. at 1.

The American legal and political system, in other words, has not been a particularly just one as far as tribal rights are concerned. Anything but, in far too many cases.

I think the Tribe recognized the real politics at hand. At the heart of its protest has been an effort to garner awareness and use the resulting outrage as leverage to impel democratically elected politicians to take up the tribe’s cause. In other words, the legal challenge itself was irrelevant, and so too were early negotiations with the Army Corps or the pipeline company. The Tribe knew the results were stacked against it; the Tribe also knew that it could obtain better results through appeals to the people of our nation. Indeed, this worked, at least initially: President Obama ordered a temporary halt to pipeline construction the same day the D.C. court ruled against the tribe.

“Construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time,” said a joint statement from the Department of Justice, the Department of the Interior, and the U.S. Army. “We request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

It could be said that the Tribe is not really concerned about sacred or historically relevant cultural sites, but is using that as a convenient excuse to oppose the pipeline. But it could and should also be said that the Tribe is really trying to save our nation’s water supply. If this is true, the way the legal and regulatory system is set up precludes the Tribe from effectively fighting the pipeline.

Indeed, in our legal system, you must have “standing”, or an actual legal interest in whatever you’re objecting to or protesting. Since the Tribe’s water supply may not be directly impacted by the pipeline, the Tribe lacks a legal interest in wherever the pipeline is being built. I find this argument to be true in some ways, but it misses the point of what it means to be a Native American. From an early age, Native Americans are taught that it is their duty to protect our land and our water. They are taught that the land has life as well as life-giving spirit.

The rest of us Americans are taught to “think globally, but act locally.” Most of the time, we don’t get involved in the political system unless our own property or our families are threatened by a proposed or ongoing public measure. It’s only when a pipeline or a well or a manufacturing plant or some other externality-creating monstrosity is about to be built in our backyard that we take to the courts or the local and state governmental bodies. We are the consummate self-interested actors. We don’t get involved unless we are interested in and have an interest in a problem.

The Tribe is thinking and acting both locally and globally. The Tribe sees that the pipeline is being built near its water supply, but also realizes that the pipeline will pass by or through or under major rivers like the Missouri. The Tribe sees that the pipeline thus could harm other communities or other bodies of water that exist outside the tribe’s land. And it also sees that the energy companies cannot be trusted to comply with safety measures that will keep the water supply alive and healthy. The Tribe doesn’t trust the government to enforce its own laws on the environment; after all, what has our government shown Native Americans as far as its willingness to obey its own laws and treaties?

The Tribe is protesting more than desecrations to its own land. It is seeking to protect all life, both within and outside its borders. The Tribe says that “Water is life,” and this would sound like a cliché were it not the simple truth. We cannot go more than three days without water and live. And as the citizens of Flint Michigan can tell you, our nation cannot destroy its citizens’ water supply without the citizens suffering deleterious health consequences.

Sometimes I think we as a nation have become actually addicted to oil. When I bring up the issue of saving the water, logical people ask me, “Well, if we stop producing and transporting oil and using it for our energy needs, then what? How will we power our cars, our houses, our other energy needs?” I always shake my head and answer honestly. I don’t know. But I know that the current processes we are using to produce energy are damaging the environment. And I know that we need to re-think energy. We need to figure out a better way to produce and use energy, because the way we’re doing it now is hurting Mother Earth. We need her. We need to protect her.

I know. We need our cars. We need our houses heated. Clean energy is too expensive, too hard to produce . . . oil and coal are cheap. I get it. The economics of the environment are complex. Simply saying we need clean energy doesn’t get us the clean or cleaner fuel we need. But do we need to get the fuel the way we’re getting it to live? Is this the best way? Or is there a better way?

The Tribe says we’re hurting the land. The Tribe says that building another massive oil pipeline is going to hurt our water. The real question is not whether we can live without oil, says the Tribe. It’s whether we can live without water. I think both questions need to be answered. But first, we need to listen to others when they ask the questions.

If you don’t think we can live without cheap oil, I challenge you to re-think your premises. Is there a better way? Can we spend less on other things, and spend more on the development of clean energy? Can we dedicate less of our GNP to other foreign entanglements and domestic items, and more to developing clean energy? And is what we’re doing to our land and water worth the long-term costs to its health—and by logical connection, since we depend on our water, to our health?