Oil and Water Don’t Mix: Why the ACLU Is Standing Up for the Standing Rock Sioux Tribe

On December 4, the Army Corps of Engineers did the right thing by refusing to give Energy Transfer Partners permission to build a portion of the nearly 1,200-mile-long Dakota Access Pipeline under Lake Oahe in North Dakota. The corps’ decision to perform an environmental impact assessment and explore alternative routes for the pipeline fulfilled the U.S.'s treaty obligations with the Standing Rock Sioux Tribe, which vigorously protested the pipeline out of a credible fear that it could rupture and destroy its water supply, as well as acted in accordance with this nation's environmental protection laws. It was a big win for the tribe and its supporters.

But it didn’t last long.

Days after President Trump took office, he issued a memorandum and an executive order asking the corps to expedite its consideration of the company’s application for an easement to start construction. Soon after, the corps withdrew its call for the environmental study, and Energy Transfer Partners began drilling the next day. The reversal was a slap in the face of the tribe and its treaty rights with the United States. Quickly, the Standing Rock Sioux asked the courts to intervene and stop the pipeline so its impact on the environment could be assessed.

The courts are now the Standing Rock Sioux’s last hope to get the pipeline routed around its land.

That’s why this week the ACLU signed onto a friend-of-the-court brief with 34 Indian tribes and other organizations in support of a case filed by the Standing Rock Sioux Tribe in federal court against the Army Corps of Engineers. The tribe’s lawsuit seeks to halt further drilling and construction of the pipeline until the corps conducts a proper environmental impact statement consistent with federal statutes, such as the National Environmental Policy Act, as well as the federal government’s responsibility to protect the tribe’s rights and sovereignty under the 1868 Treaty of Fort Laramie. 

The federal government has once again betrayed the Standing Rock Sioux.

As outlined in our brief, the pipeline should be halted immediately consistent with the Standing Rock Sioux’s treaty rights as well as to prevent, for good, any chance a pipeline leak or rupture could despoil the tribe’s land and water. Energy Transfer Partners, however, claims that the chance of a rupture in the river is low, but there are three responses to that claim.

First, the chance of a rupture isn’t that low. In July 2015, the Michigan Petroleum Pipeline Task Force issued a comprehensive report of pipeline failures. The study found “hundreds” of pipeline ruptures “that have occurred throughout the U.S. pipeline system.”

The report cites many examples of ruptures over the last few years. In May 2015, a pipeline failed off the coast of Santa Barbara, California, releasing 105,000 gallons of oil into the Pacific Ocean. A few months earlier, another pipeline spill released 42,000 gallons of oil underneath the Yellowstone River. Two years earlier, a pipeline ruptured in Mayflower, Arkansas, releasing 134,000 gallons. In July 2010, a pipeline break released 840,000 gallons of oil, fouling 38 miles of the Kalamazoo River in Michigan.

Second, the possibility of a rupture — whether low or not — must be considered together with the consequences of a rupture.  Even a “moderate” release of oil into the Missouri River would have profound and devastating consequences, a subject that the company’s press releases ignore.

Lastly, it is fair to ask: Who would suffer the most by a rupture? The immediate victims of a rupture of the pipeline would be the members of the Standing Rock Sioux Tribe, now that the pipeline has been moved into their watershed. But the degradation of the water would also impact some 18 million people downstream who depend on water from the Missouri River.

Since 1974, it’s been the ACLU’s national policy to support Native Americans’ right to a tribal land base and its natural resources as well as support tribes who press their treaty rights with the U.S. government. Under treaties the Standing Rock Sioux made with the U.S. government as well as under federal statutes, the tribe has the right to protect its land, its heritage, and its water from contamination by a possible pipeline rupture. The treatment of the Standing Rock Sioux by Energy Transfer Partners and all levels of government compel us to help the tribe as they fight to stop the pipeline construction from proceeding so that a simple environmental impact assessment can be conducted.

The federal government has once again betrayed the Standing Rock Sioux and made a mockery of its obligations to the tribe while jeopardizing the drinking water of over 18 million Americans. We hope our brief helps convince the courts that a great injustice is taking place on federal land just north of the Standing Rock Sioux’s territory and that it should be stopped immediately.

Stephen L. Pevar’s book, “The Rights of Indians and Tribes” (Oxford 2012), is available here.

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This article is an astonishing piece of a deplorable lack of journalist curiosity regarding U.S./State citizens with “Indian ancestry/race” since The Indian Citizenship Act of 1924! That single Indian Citizenship Act of 1924, made moot all previous common law-state and federal-including Presidential Executive Orders, Commerce Clause and Treaty Clause alleged Indian Treaties (if any U.S. Senate confirmed Indian treaties actually existed pre-1924 Citizenship) regarding U.S./State citizens with “Indian ancestry/race” so often touted by politicians and Indian advocates as being legitimate law. Since 1924, some 560+ faux federally recognized “Indian tribes” have been on the federal welfare rolls…that is 93-years with billions and billions of U.S. taxpayer money year after year after for free education, health, housing, no state taxes to what purpose? Perpetual federal welfare at U.S. taxpayer expense? Time for U.S./State citizens with “Indian ancestry/race” to get off federal welfare and man-up!
And yet, MSM continue to perpetuate willful blindness to the Constitutional absurdity that Congress, Presidents/Governors, Initiatives and Referendums can make distinguishable the capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race” post citizenship.
The Constitution makes for no provisions for:
1. Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports
2. Treaties with its own constituency
3. Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to federal documents readily available on-line that notes rights of ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
4. Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international recognition of “Indian citizenship” as there is no ‘nation’ from which citizenship is derived.
A simple question for politicians and MSM to answer…a question so simple, it is hard:
“Where is the proclamation ratified by 1/3rd of the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”


have you ever been to an american indian reservation? whatever welfare the gov gives to members of the tribes is nothing compared to the cultural loss and genocide first nations people suffered at the hands of greedy white men. it's still happening, and it's not right. at the end of the day this is a humanitarian issue. when this pipeline leaks, the standing rock sioux will be the first to suffer the consequences. all for an unsustainable resource that 99% of americans will not benefit from. as if our first peoples haven't suffered enough. shame on you.


Welfare? Seriously? The very land you stand on is land stolen from the American Indian. Your ancestors invaded their country, and claimed it as theirs. Your ancestors taught children that Columbus discovered America. Your ancestors murdered 95% of their men, women, and children. American Indians have a reverence and respect for this land that you can never understand or appreciate. Which is why you kick them aside, then invade, pollute, and destroy their sacred land for profit. Do you know that Trump has financial investments in the Dakota Access Pipeline, or do you chose to ignore a so called billionaire who has cheated America out of hundreds of millions of dollars in tax? Again, I question your welfare comment. Anything that America gives to Native American Indians, is not enough.
In parts of West Virginia, Kentucky, and Virginia, mining companies get to coal seams by blowing up our beautiful mountains. Trump signed an EPO to allow the coal companies to then dump the toxic metal waste into the precious streams. Why, because the coal companies complained that the Obama regulations preventing such reckless poisoning of was costing them too much money.
In Oklahoma, there is a human-made earthquake epidemic caused by fracking, oil companies forcing massive amounts of salt-water deep unto the ground in order to extract oil. The then attorney general did nothing to protect the people or address the massive amount of property damage. Instead, he allowed himself to be used by the oil companies to fight the EPA. Profit over environment.Wonder why he is the head of the EPA?
Its sad that you whine about your tax dollars going to American Indians, when a so called billionaire has cost tax payers $10 million dollars in one month for his vacations.
Trump has made it easy for big business to rape and destroy America with impunity, and Americans paying the price for their recklessness, and having little recourse. You can continue to try to defend this deplorable behavior, but I hope you never find yourself or your neighborhood in the path of anything big business eyes as profit.


What a bunch of diatribe! You have no idea what you're talking about! You are so ignorant of history, its embarrassing! Keep your venom to yourself!!


To first anonymous: What a bunch of diatribe! You have no idea what you're talking about! You are so ignorant of history, its embarrassing! Keep your venom to yourself!!

Anna Villarreal

The fact that you make your deplorable comment without even using your name shows you are a coward and that you don't really stand behind the lies and half truths that you use to try to defend your position on indigenous people. You're trying to stir the pot and lack the backbone to do so by using your name.

Akecheta Shipshewano

I find your comment ignorant, selfish and heartless. Native American tribal sovereignty is partially limited as "domestic dependent nations," so too is the sovereignty of the federal government and the individual states – each of which is limited by the other. Technically, Congress has no more power over Indian nations than it does over individual states. In the 1970s Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans. Self-determination promoted the ability of tribes to self-govern and make decisions concerning their people.

Please explain this to me: "In its environmental assessment, the Army Corps of Engineers rejected the Bismarck route in order to protect wells that serve the municipal water supply, according to The Bismarck Tribune. The Bismarck route would also have been more than 10 miles longer and would have made it difficult to meet PSC requirements to keep the pipeline 500 feet or more away from homes, the Tribune reported. "

Why is it more important to protect wells that serve municipal water supply of Bismark, than to protect the water supply of American Indians? Not to mention that violating their sacred burial grounds is akin to allowing ETP to dig beneath a graveyard.

Mary Williams

Wow, Anonymous, that was a mouthful but just think that if the people just stand by quietly and let their future be stuffed out due to undrinkable water, water that waters land, living animals, plants and of course you and your descendants. Not withstanding all of the treaties set with the Real Americans from the start, I hope that they win this battle. This battle is like fighting for the right to breathe, eat and drink as God-given blessing on this earth. Now there is a place for oil but it is not at another human being's choice that others just be quiet and "man up, woman up or child-up" and let this pipeline happen. I do disagree and I stand for my children's children ever how long the earth last to be able to at least have water to drink.

Christopher Busby

This outpouring is a consequence of failure to concede the rights of indigenous people enshrined in all Human Rights legislation including the UN Declaration of Human Rights. It is an attempt to continue the process of domination and robbery that characterised the take-over of land in the USA and the massacres of the local "landowner" indigenous peoples. It is this way of seeing the world, creating bogus laws on the basis of majority domination, that the USA has been famous for and universally hated throught the civilized world since at least the time when the 1924 Act which Anonymous refers to. No doubt he or she would support the arrogant attempts by the USA to dominate and impose its system of thought and its toxic contamination on the whole of the world, for example the US antics in the Middle East which resulted in millions of dead and maimed and the poisoning of vast territories with associated increases in genetic diseases in whole populations. Indigenous people have rights to the land which they posessed before it was torn from them by invaders. The Indians were squeezed into small enclaves. Now they are to be further attacked to make money.


Standing Rock is anything but a welfare state in need of defense from the ACLU. They have $1,000,000,000 sitting in an account at the Bureau of Indian Affairs just waiting for them to collect it. That is over $100,000 PER PERSON, tax-free cash.


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