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Jan Lee headshot

Dakota Access Pipeline: Should Business Investment Define Tribal Sovereignty and Safety?

By Jan Lee

For months now, the world has been riveted by the increasing and sometimes bloody conflicts surrounding the Standing Rock Sioux protests in North Dakota. It began as a small, isolated effort by a local tribe to express concerns about the impact the $4 billion Dakota Access pipeline could have on its members rights and safety. But it is now arguably something much greater.

In addition to assaults on protesters, journalists reporting on the protests have been shot with rubber bullets. Others were arrested -- sometimes multiple times -- as they attempted to report on the water protectors' protests (which attendees stress were intended to be peaceful demonstrations or prayer gatherings).

Last weekend, the Morton County Sheriff's Office tried to deter protesters from crossing a bridge near the prayer camps. The resulting conflict sent more than 300 people to hospitals and medics after they were reportedly maced, shot with rubber bullets and sprayed with water in 25-degree temperatures.

These events came amid the Obama administration's assurances that the Standing Rock Sioux will have a voice in whether the pipeline is allowed to cross under its primary water source (Lake Oahe), leaving troubling questions about the future of civil rights when protestors face off against large business investments. Where do the rights of residents who wish to protest civilly end, and where do the expectations of business investors tentatively promised a windfall begin?

But it also paints a worrying picture about the right of Native tribes to expect that federal protections will not be eroded by lucrative business deals that seek to use federal lands for private investment.

The protection of suspected Sioux grave sites should have been guaranteed last summer. Instead Dakota Access contractors bulldozed ancestral sites in front of Standing Rock protesters. The enactment of the Native American Graves Protection and Repatriation Act of 1990 followed a long history of struggles by Native Americans to ensure their access to sacred sites are protected -- many of which are on federal lands. It also sets guidelines to protect suspected artifacts and sacred sites from being bulldozed by ensuring federal and local authorities include tribal concerns when considering a construction permit.

"We have tried treaties. We have tried court cases. We have tried state and federal legislation," wrote Duane Champagne in an article for Indian Country Today. Champagne is a professor of Sociology and American Indian Studies at the University of California. He is also a professor of law at the same institution. Efforts to protect Native American sovereignty and to encourage the respect of cultural customs by the government and business entities, he says continue to be "mixed." 

The issue he maintains, isn't that there aren't treaties or laws in place to protect cultural rights and traditions. There are. "But [the federal officials] don’t generally understand or appreciate the spiritual geography of the land and its relation to the peoples." That's largely because the concept that these landmarks are "to be revered, remembered and continually honored" is out of sync with today's business priorities.

As North Americans, we will ascribe a day of remembrance to a cultural event or tragedy. We protect the right of workers to take a religious holiday. But we don't generally think of large acreages housing thousands of years of ancestral grave sites as holding sacred importance over the rights of a business contractor.

But it isn't just what the federal government does or doesn't do to protect Native cultural values that has put Native communities increasingly at risk in recent years. The growing schism between federal, state and local governments as to their responsibilities to protect Native rights have been underscored by the continual mixed messages the water protectors received during protests. The silence of the Obama administration amid charges of excessive force by a county sheriff's office and U.N. concerns of possible human rights abuses sends a chilling (albeit probably unintended) message about the rights of states and local governments to enforce their own priorities in favor of business development -- even in the face of federal law.

The next  few months will likely be trying for all sides. The U.S. Army Corps of Engineers announced that it intends to close the water protectors' encampment by Dec. 5. The protesters have, in turn, said they aren't moving. Their encampment is on federal lands, but they are lands the Sioux point out were once inhabited by their peoples and, as such, have ancestral significance.

"The best way to protect people during the winter, and reduce the risk of conflict between water protectors and militarized police is to deny the easement for the [Lake] Oahe crossing, and deny it now," Standing Rock Sioux Chariman David Archambault II said in a public statement.

Ironically, the water protectors may have one recent piece of history on their side when it comes to their right to camp indefinitely on federal land: Ammon Bundy's occupation of the Malheur National Wildlife Refuge, which resulted in the mishandling and destruction of Native American artifacts onsite. Under the concept of jury nullification, the heavily-armed ranchers were acquitted of all charges because the jury felt the alleged crime was the result of unjust laws.

The question that remains is whether Native American water protectors and thousands of supporters, facing off against the interests of one of the country's most lucrative industries, will be eligible for the same consideration if they end up in court.

Stay tuned.

Image: Flickr/Fibonacci Blue

Jan Lee headshot

Jan Lee is a former news editor and award-winning editorial writer whose non-fiction and fiction have been published in the U.S., Canada, Mexico, the U.K. and Australia. Her articles and posts can be found on TriplePundit, JustMeans, and her blog, The Multicultural Jew, as well as other publications. She currently splits her residence between the city of Vancouver, British Columbia and the rural farmlands of Idaho.

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