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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Anonymous

For all who complained about "Anonymous" post, none of you have overcome Constitutional tenants there are no "sovereign Indian nations!" The notion of "sovereign Indian nations" is Constitution absurdity! There are no "Indians" post The Indian Citizenship Act of 1924 contrary to the political and Indian advocate hoax and those complaining in their posts! The U.S. Constitution makes for no 'creditor or debtor' ancestry/race! Your complaining about events are more than 130-years old...that is plain victimhood scenarios of "Oh. Poor Me. White man did us wrong and White man stole our land" is yet more victimhood scenarios of wallowing in events more than 130-years ago. Time to move on. Time to get off of federal welfare rolls.

With rare exception in federal documents readily available on-line none of the complainers would think to research as that would disprove their position, the land commonly known as an "Indian reservation" is land owned by the People of the United States with U.S./State citizens with "Indian ancestry/ace" being merely renters...again, this information is readily available on-line none of those complaining would search-for as that would require effort. Lastly, as of the Indian Citizen Act of 1924, there are no more "Indians" within the original meaning of the United States Constitution ie. no Commerce or Treaty Clause applicability whatsoever...only U.S./State citizens with "Indian ancestry/race" entitled to no more and no less than every other non-Indian U.S./State citizen.

It never ceases to amaze me how politicians and Indian advocates continue to 'dumb-down' 'gullible' citizens of the United States into actually believing that politicians can regulate the capacities, metes and boundaries of a select group of U.S./State citizens with "Indian ancestry/race" by faux common law Title 25-INDIANS; and, yet see no difference in Title 25-INDIANS faux federal common law and "Jim Crow Laws" of recent historical vintage.

None of those complaining noted the Constitution's 14th Amendment's Section 1 provides for 'equal protection' and does not include race/based common laws like Title 25-INDIANS (or Jim Crow Laws) nor do any of those complaining know about the SCOTUS decision in United States Supreme Court BROWN v. BOARD OF EDUCATION, (1954) No. 10 Argued: December 9, 1952 Decided: May 17, 1954, and the 14th Amendment's 'equal protection' of Constitution-guaranteed protections of one's citizenship at the same time those complaining about "Anonymous" post are championing Title 25-INDIANS common law that is plain ancestry/race-based common law! What hypocrisy!

For all those complaining about "Anonymous" post, prove your position, get off Ad Hominem arguments or withdraw for the discussion as having nothing to contribute.

Anonymous

Kmjensen: The Indian Citizenship Act of 1924's reference to 'Tribal property' refers to business enterprise and buildings...not land! With rare exception according to the federal documents that debunks the myth foisted off on non-Indian U.S./State citizens by politicians and Indian advocates-the header of which is posted for your edification-clearly states U.S/State citizens with "Indian ancestry/race" residing on said land are merely renters with rights of 'use and occupancy' only...ownership is by the People of the United States including natural resources on said land. Whatever revenue flows to the tenants from extraction/harvest of natural resources is by grace of the owner: The People of the United States.
INDIAN AFFAIRS: LAWS AND TREATIES
Vol. IV, Laws (Compiled to March 4, 1927)
Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.
________________________________________
Home | Disclaimer & Usage | Table of Contents | Index
________________________________________
PART III.— EXECUTIVE ORDERS RELATING TO INDIAN RESERVATIONS FROM JULY 1, 1912, TO NOVEMBER 23, 1927.

ARIZONA | CALIFORNIA | COLORADO | IDAHO | KANSAS | MINNESOTA | MONTANA | NEBRASKA | NEVADA | NEW MEXICO | NORTH DAKOTA | OKLAHOMA | OREGON | SOUTH DAKOTA | UTAH | WASHINGTON | WISCONSIN | EXECUTIVE ORDERS RELATING TO INDIANS ON PUBLIC DOMAIN | EXECUTIVE ORDER RESERVATIONS

Anonymous

What a bunch of diatribe!: Prove the post wrong! Your post is merely your unsubstantiated opinion absent proofs which you did not offer.

Anonymous

Akecheta Shipshewano: Suggest you read the findings of the EPA and Army Corps of Engineers to answer a portion of your question. As for the balance of your question, the Constitution makes for no provisions for 'Indian nations' as it is a political and Indian advocate myth endlessly perpetuated to 'dumb-down,' 'gullible' non-Indian U.S./State citizens into believe that Congress/State legislatures, Presidents/Governors, Initiatives and Referendums can regulate the capacities, metes and boundaries of a select group of U.S/State citizens because of their "Indian ancestry/race" all done without Constitutional authority to do so. Posted for your edification is a SCOTUS decision that succinctly defines the Constitution-guaranteed protections of one's U.S./State citizenship. No one positing to this discussion including you have provided a Constitutional Amendment whereby a U.S./State citizen can have their 'citizenship' 'enlarge or abridge' (ie. U.S./State citizenship with "Indian ancestry/race" made 'distinguishable' by common law-state or federal:
United States Supreme Court

OSBORN v. BANK OF U.S., (1824) No. 80 Argued: Decided: March 19, 1824:
"A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none. "

Anonymous

NotNaive: You are whining about events more than 130-years ago...that is merely 'victimhood' scenarios that no one experienced that is alive today. Time to move on from constantly exhorting victimhood scenarios. A reminder, the Indian tribes lost the wars! Period! U.S/State citizens with Sioux Indian ancestry/race residing as renters on land owned by the People of the United State have their own independent water supply not remotely in jeopardy by the pipeline provided-for by U.S. taxpayers. The balance of your post is your opinion.

Anonymous

have you ever been to an american indian reservation?: You are arguing victimhood scenarios more than 130-years old. No one is alive today that experienced those events. Secondly, as of the Indian Citizenship Act of 1924, there are no more "Indians!" Thirdly, the Indian tribes lost the wars! Time to get off the federal welfare rolls since 1924...that is 93-years of welfare that resulted in what successes? The Constitution provides for no 'creditor or debtor' ancestry/race! Period! We, the People of the United States have no obligation flowing from the Constitution to provide perpetual welfare to a select group of U.S./State citizens with "Indian ancestry/race." The Constitution provides opportunity to every U.S./State citizen to be successful. After 93-years of being on the federal welfare rolls, the faux federally recognized Indian tribes squandered all of the billions of U.S. taxpayer dollars to achieve what? A recent article by THE ARIZON REPURLIC note the Navajo's received $1.616-billion U.S. taxpayer dollars from 1998 to the present to ostensible build homes for their member...the tribe built 400-that were uninhabitable. What happened to the U.S. taxpayer money? And, all the while, the Navajo's are complaining about how bad the 'white man' is treating them? Perpetual federal welfare programs for some 560+ faux federally recognized Indian tribes seems to have fostered nothing more than a perpetual welfare state from generation to generation. Why is that?

Anonymous

I agree with you to an extent that it does get dull to hear the same complaints by Native American or American Indian groups about how bad the White man was, while pushing the Noble Savage theory. That said, this nation's treatment of American Indians or Native Americans was arrogant and haughty. American Indians or Native Americans do deserve to be treated nicely and fairly as all other ethnic groups. Here's how to respond to posters or any1 who gives Noble Savage theory or lectures about how poorly American Indians are treated.

With stealing American Indian or Native American territory-is it because wars were used to take land from them or is the main meaning of this that the Whites were better @ being greedy ? When American Indians or Native Americans wanted territory, they used wars to get it from a neighboring tribe. In some cases, American Indian or Native American tribes would kill a neighboring tribes men in a war and then take the women and girls as their wives. Quanah Parker was the last Comanche chief-his mom was kidnapped when she was 9 years old and forced to become a Comanche chief's wife.

Before the Whites stole the territory, Native Americans got their lands by wars, which in some cases, involved killing the neighboring tribes men and kidnapping the women and girls as wives. I wouldn't want to live during the times an Indian tribe such as let's say Comanches killed their neighbors and then took the women and girls as wives.

I’ve found with Native Americans or American Indians is that many times when they talk of ‘stolen land’ what they imply is ‘you did what I wanted to do.’ There was greed & arrogance on both the Whites & Native American sides. Yes, this nations treatment of American Indians was arrogant & wars were used to take land from American Indians. Truth about greed is that Whites were just better in greed. Before the Whites, American Indians when they wanted land be it living grounds, hunting grounds, burial grounds & fishing waters got it from other tribes by wars. When the Whites came, they wanted the same things & more be they metals such as iron, gold, silver, copper & bronze.

Truth is that when people get advanced & complicated in their technologies, the more they want. People are just potentially greedy. If American Indian tribes (esp. tribes like the Sioux, Comanches, Apaches, Aztecs, etc.) had better weapons & capabilities, they would have been conquering other places in the world & imposing their laws on others. Whites ( I’m not White) had better military capability or capacity, but when it comes to thinking, they’re the same. People are the same everywhere-Whites, Blacks, American Indians, etc. That doesn’t excuse fact this nation’s treatment of American Indians was arrogant but when you have the view of ‘you did what I wanted to do’ then you’re no better than what you say to be against.

Kimberly McAllister

God bless u. Someone needs to stand up to the people in charge who would plunder and rob us all of our rightful heritage, clean water, unspoiled land and pure air.

Anonymous

All these smartasses who think being born to the purple is going to protect you from EVERYthing and you can just act whatever goddam way you please to "the peasant stock" can think the hell again. Think about what happened to the French Aristocracy after the lady said "let them eat cake." Think about the numerous peasant revolts throughout history and how the monarchies and Fascist governments fared through them. Think about what became of Stalin, Mussolini and Hitler. History has a long-ass record of what happens when the wealthy elite try to subjugate people by force & it DOESN'T look good for the elite.
So the next time you're running your fat mouths & seeming to enjoy the hell out of watching people suffer, think about THAT. None of the people who ever tried to cram their goddam will down the people's throat have ever lasted that long after they did so.

Anonymous

Nazi Germany, Fascist Italy and Axis Japan were greedy but they were not cowards & Axis Japanese soldiers fought and died for what they believed & Fascist Italian soldiers fought & died for what they wanted. Nazi German soldiers fought and died for what they wanted. Nazis were greedy but they fought & died for what they wanted and you Nazi soldiers did have courage fighting in battles such as Kursk, Nazi soldiers were not cowards, in that in Stalingrad & Leningrad battles, you must have courage. German Nazi soldiers talk of how they destroyed 3 Soviet tanks in battle.

Hitler exploited fact that Poles & Czechs mistreated German neighbors to justify his greed. Of course most Germans living in Czechoslovakia & Poland supported Nazis because among other reasons, they no longer wanted to be mistreated by their neighbors. In worst cases, ethnic violence was committed by Poles & Czechs (more so by Poles)against their German neighbors for years. Polish writings from 1848 talked about how Germans are lower than dogs, among other things. If Poles & Czechs better treated their German neighbors, then instead of 95% of Germans living in Poland & Czechoslovakia supporting Nazis, the # would have been less. Hitler would have still invaded, but @least there would’ve been more Germans opposing the Nazis than supporting their invasion.

Nazi Germany had no right to invade Poland, no right to take Czechoslovakia by war declaration threat (violating 1938 Munich Agreement with Sudeten) as their motive was lebensraum , Germans living in Poland & Czechoslovakia were poorly treated by their Polish & Czech neighbors (Germans sometimes took Polish & Czech names to try to avoid persecution) & in some cases there was violence committed by Poles & Czechs against their German neighbors in Poland & Czechoslovakia. Hitler would have invaded Poland regardless but if Polish treatment of their German neighbors had been good, then fewer Germans living in Poland would have supported Nazi invasion. Again, while Nazi Germany had no right to invade Poland, etc. as they were doing that mainly for Nazi Germany’s interest against others, Germans were poorly treated in Poland for many years, long before Hitler was born.

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