by David Treuer
Changes could be felt legislatively as well. In the 1990s and 2000s, a slew of laws affirmed (legally and in terms of policy) the kind of shift in Indian life that had occurred in the lives of Sean, Sarah, Chelsey, and many thousands like them. In 1990, Congress passed the Native American Languages Act, the Indian Arts and Crafts Act, and the Native American Graves and Repatriation Act. The Native American Languages Act (NALA) put money behind efforts to undo the damages done by residential boarding schools, where, as we have seen, the government tried to eradicate our languages over the course of educating three generations. The Indian Arts and Crafts Act served to protect Indian artists by making the sale and distribution of “Indian” art made by non-Indians and advertised as “authentic” a crime. In 2013, the Violence Against Women Act (VAWA) that had been passed in 1994 was reauthorized and significantly revised. Among the new provisions was the empowerment of tribal courts to charge and prosecute non-Natives who raped or assaulted Native women on Native land. This was important legislation for Indian communities. More than two-thirds of Indian women are assaulted in their lifetime, and more than a third are raped. The majority of Native women are married or partnered to non-Natives, and the majority of rapes and assaults take place in or near their homes. Yet for decades, those who attacked Indian women were able to escape prosecution through jurisdictional loopholes or simply because local authorities were reluctant to prosecute. The revised VAWA is a potent weapon for the defense of Indian women.
In 2007, Senator Sam Brownback of Kansas introduced “a joint resolution to acknowledge a long history of official depredations and ill-conceived policies by the federal government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States.” The resolution was eventually passed and signed by President Obama as a rider on a defense appropriations spending bill, appropriately enough, albeit in a form like iced tea left too long in the glass. Rather than a full-throated apology from the United States, Obama apologized “on behalf of the people of the United States to all Native peoples for the many instances of violence, maltreatment, and neglect inflicted on Native peoples by citizens of the United States.” So it was an apology made on behalf of a constituency in semi-private, accompanied by no public ceremony, and without any teeth whatsoever: the resolution included a disclaimer making it clear that the “apology” did not authorize or support “any legal claims against the United States, and the resolution does not settle any claims.”
Still, a half-felt apology to Indians is better than fully formed policy inimical to our existence. All in all, the period 1990–2015 had a pointillist feel to it: one can see points of light—disparate, separate—beginning to come together into a picture of Indian survival, resilience, adaptability, pride, and place in modern life. Many of these points came together in North Dakota on and near the Standing Rock Reservation during the pipeline protest that erupted there in 2016.
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THE TEN-MONTH PROTEST on the edge of the Standing Rock Reservation against the continued construction of the Dakota Access Pipeline (DAPL) began in early 2016 and was shut down in February 2017, soon after Donald Trump took office. The pipeline, which became operational on May 14, 2017, now carries more than 400,000 barrels of oil a day from the Bakken oil fields in northern North Dakota to Patoka, Illinois, over 1,172 miles, across four states, and under the Missouri and Mississippi Rivers. The original route took the pipeline past Bismarck, North Dakota, but that route was rejected because it was too close to the municipal water supply. The alternative route put the pipeline across the Missouri just upstream of the Standing Rock Sioux Reservation. And this is where the pipeline became an Indian problem. The project was fast-tracked, meaning that the permitting process was streamlined; meaning that DAPL (along with its parent company, Energy Transfer Partners) was not subject to the usual permitting process for large interstate projects except where the pipeline was to cross major bodies of water and where it might affect ceded, historically important, religiously significant tribal lands; meaning that DAPL had to conduct cultural and environmental impact surveys in liaison with the state (North Dakota) and with tribes whose homelands the pipeline crosses (even if the pipeline doesn’t actually cross through the reservation). DAPL was legally obligated to consult the Standing Rock Sioux, among other tribes. Which it did. Kind of. While the pipeline route was being planned, Energy Transfer Partners engaged in extensive surveying. According to documents filed in federal court: “Where this surveying revealed previously unidentified historic or cultural resources that might be affected, the company mostly chose to reroute. In North Dakota, for example, the cultural surveys found 149 potentially eligible sites, 91 of which had stone features. The pipeline workspace and route [were] modified to avoid all 91 of these stone features and all but 9 of the other potentially eligible sites. By the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources. Plans had also been put in place to mitigate any effects on the other 9 sites through coordination with the North Dakota SHPO [State Historic Preservation Officer]. All told, the company surveyed nearly twice as many miles in North Dakota as the 357 miles that would eventually be used for the pipeline.” Three other tribes in North Dakota met and conferred with DAPL planners, and the pipeline was moved accordingly. And then the company tried to meet with a representative of the tribal version of the SHPO, the tribal historic preservation officer, Waste’Win Young. The DAPL liaison spoke to Young on the phone a few times after the pipeline plan went public, but then, according to court documents, it seems the company had trouble reaching her. The Army Corps of Engineers was also duty-bound to make sure the pipeline worked with the state and with tribes. Accordingly, Joel Ames (retired Navy chief, Osage Indian, and tribal liaison with the Army Corps of Engineers) also tried to reach out to Young, but to no avail. He recorded five attempts to meet and confer with her but was unsuccessful.
On October 2, other Corps personnel also sought to hold an arranged meeting with the Tribal Council and Dakota Access on the Standing Rock Reservation. But when the Corps timely arrived for the meeting, Tribal Chairman David Archambault told them that the conclave had started earlier than planned and had already ended. Ames nevertheless continued to reach out to Young to try to schedule another meeting throughout the month of October. When the new meeting was finally held at the reservation on November 6, though, DAPL was taken off the agenda because Young did not attend.
As a first cut, the Corps reviewed extensive existing cultural surveys both within and outside the Lake Oahe project area to determine whether the work might affect cultural resources. Then, on October 24, the Corps sent out a letter to tribes, including the Standing Rock Sioux, with information about the proposed work and maps documenting the known cultural sites that the Corps had already identified. These included sites that the Corps considered to be outside the projected area of effect. In addition, the letter requested that any party interested in consulting on the matter reply within thirty days. No response was received from the Tribe. The Corps did receive responses from other tribes and the North Dakota SHPO, which it considered. After granting an extra three weeks for additional responses, on December 18 the Corps made an initial determination of “No Historic Properties Affected” for the soil-bore testing. The Corps mailed out this decision in a Determination of Effect letter to the North Dakota SHPO and all affected tribes on the same day. The letter explained that the Corps had concluded that no historic properties would be affected by the tests and clarified that a previous “not eligible” determination had already been made for a nearby site that would also not be affected by the work. The Corps also emailed Young again the next day to seek possible dates for a January 2015 meeting with the Tribe to discuss DAPL. No response is in the record.
I don’t know why Young and tribal chairman David Archambault II didn’t meet or consult with DAPL
when the window to consult was open. On the day the Army Corps of Engineers green-lit the project publicly Young registered a complaint. This was in December 2014. Deadlines were once again extended. Meetings were once again scheduled. Meetings were once again canceled. Again more deadlines passed, and passed again. A year passed like this. But finally, in the spring of 2016, the tribe and the Corps and DAPL representatives met no less than seven times. As a result the tribe had a chance to bring its own experts to bear on the question of cultural impacts. Meetings were held on and off the reservation, trips to the actual sites in question were taken by officials from all three groups, together. As a direct result DAPL reopened consultations with tribes in the spring of 2016. Three tribes—including the Osage and Upper Sioux—identified previously overlooked sites and the pipeline was adjusted accordingly. Standing Rock, however, declined to participate in these surveys because of “their limited scope” and instead “urged the Corps to refine the area of potential effect to include the entire pipeline.” This wasn’t going to happen. And without input from the tribe (because the tribe refused), construction began.
Not pleased, the tribe set up a protest camp even as it filed an injunction against the proposed crossing. The camp quickly grew to include Indians from more than three hundred different tribes, professional activists, and foreign rights organizations. While it lasted, it was the largest gathering of Indians in the United States since the same tribes (Lakota, Cheyenne, and Arapaho) formed the tribal armies that defeated the U.S. Cavalry at the Little Bighorn, not far from the #NODAPL protest camp. Whatever crooked path led from planning to execution, and whatever the possible missteps of the tribe, the protest was organized and peaceful and humane. While the tribe argued in court that the pipeline would destroy sacred sites, the Mni Wiconi protest (mni wiconi means “water is sacred” in the Lakota language) was primarily about fighting the danger to drinking water posed by the pipeline. The latter argument is bigger, because it hinges on tribal sovereignty and the protection of natural resources. However, the tribe and the protesters were working together, and this in itself was novel. Other tribes joined the protest, some from far away. Tribal authorities from all over the country sent food, firewood, and supplies. Tribes from Mexico sent dancers. The Maori sent hakas via Facebook. By October more than a million people had checked in via Facebook.
Things got violent fast. The protesters were determinedly anti-violence and pro–peaceful direct action; the private security teams, not so much. They loosed attack dogs on protesters. The activists were pepper-sprayed, arrested, hosed down with water cannons, and shot with rubber bullets. All along government officials and security forces and company representatives decried how the Indians were trespassing on private property, as though this was the greatest crime one can engage in in a society so shaped by ownership. Maybe it is.
As the tribe was setting up the protest camp and activists from around the country were arriving, in court the tribe officially objected to the pipeline on the grounds that it violated the National Historic Preservation Act. This is important. As much as the tribe (as a sovereign Indian nation) talked about water and tribal lands, their objections were rather narrow. They did not file motions under the Clean Water Act or the Rivers and Harbors Act. I don’t know why the tribe limited their claims to cultural/historical ones. The protest, however, was more wide-ranging. The protesters made a broad call about the need to protect sacred sites and clean water and to push the country to think harder about clean (or at least cleaner) energy. The “story” of the protest, however, is largely a story we’ve heard before: that the government has always undervalued the rights of indigenous people and continues to do so, that indigenous people are the stewards of the land, that Indians continue to get shafted by the government. But to rest on that story would be to miss the bigger and more fundamental one.
The story of the pipeline is not another iteration of the “Indian problem”: that Indians, sadly, lost, and with them having lost, it’s hard to know what to do with them, especially when they are in the way. The chairman of the Standing Rock Sioux Tribe, David Archambault II, wrote in The New York Times that justice looks different in Indian country. He pointed out the irony that on the day the white militants who had occupied the Malheur National Wildlife Refuge in Oregon were acquitted in federal court, federal and state forces descended on unarmed “water protectors” at Standing Rock with pepper spray, armored vehicles, and rubber bullets. This is seen as evidence that Indians are treated differently under the law than non-Indians; that Indian concerns are somehow less vital than those of other American citizens; that the white militants have a government problem but Indians have an Indian problem.
To be sure: Indian reservations and Indian communities have been chronically underserved by the justice system and, given the remote location of many reservations, have over the past 150 years been disproportionately affected by large “public” works and extractive industries, largely out of sight and mind of the rest of the country. The construction of the dam at the confluence of the Cannonball and Missouri Rivers that created Lake Oahe in 1962 completely submerged historical Mandan and Hidatsa sites, for example. Uranium and coal mining on Navajo lands has had crushing environmental impacts in the Southwest. Northern Minnesota reservations were completely deforested in the early 1900s to feed the needs of growing urban centers like Minneapolis and Chicago. But it would be a mistake to think of all of this as an “Indian problem.” Rather, the Indian problem has always been a government problem. And how the government does business affects us all. The Malheur militants were acquitted largely because their takeover occurred on federal land. The water protectors were arrested because they trespassed on private land (made private by historical theft of the Great Sioux Reservation). DAPL to a large degree escaped federal oversight in the first place because almost all of it passes through private, not public, lands. Where the pipeline does cross public land and waters, the Army Corps of Engineers relied on “Permit 12” processing, which allowed the company to avoid the cumbersome process of pulling upward of thirty discrete permits for different aspects of the project and running those through nearly as many different government branches and commissions; instead, DAPL and Energy Transfer Partners pulled one permit and, once the Army Corps of Engineers approved it, they themselves became responsible for making sure they are in compliance with most of the permitting requirements, with the Army Corps checking in once every five years. In other words, the company basically polices itself.
The most important part of this whole sordid process to note and notice is not what the government is willing to do to Indians, or what the government is willing to allow to happen to the land and the water. It is that we created a government that is doing this to us. It is the government we empowered that created a Supreme Court that ruled in favor of Citizens United; that privileges private ownership over the common good; that fast-tracks enormous projects at great environmental cost in order to assure us of cheap energy to fuel our out-of-control consumption. We have, with our votes and our energy, opted for smaller government (and for government agencies like the EPA and the Army Corps of Engineers that seem to exist to safeguard business interests rather than the public interest) that is unable and unwilling to do the job of detailed overseeing, thus creating the opportunity for enormous environmental and social crimes by corporations.
Every protest contains a contradiction: people or groups of people set aside the way business is usually done, stand up to the state, and through protest urge the state to change. That is, they break the “rules” (violently sometimes, and at others with nonviolent direct action) in order to convince the rule makers that they need to change the rules, which is itself a kind of state-sanctioned process. However, at Standing Rock, Indians from all over North America protested, in (some) never-before-seen ways. And in this they, too, were living the changes Chelsey and Sarah talked about so passionately regarding their own growth.
The peopl
e of Standing Rock and the protesters who gathered there didn’t just object to where the pipeline crossed: they objected to the pipeline in its entirety. And here is where the court case and the protest diverged: the protesters protested the existence of the pipeline, while the Standing Rock Sioux Tribe sought an injunction only on the basis of federal laws protecting the tribe’s interest in preserving sacred sites.
What made this Indian protest different from others were its manner and its reach. The protesters referred to themselves not as protesters but as water protectors. Theirs was a nonviolent protest that spoke broadly to environmental and policy concerns in a way non-Indians could see affected them, too. There was no “leader,” no titular head. For the first time, activists, individuals, tribal government, and the tribal governments of other Indian nations all banded together in common cause. Away from camp at least, the protest didn’t have a face or a personality as much as it had faces and personalities. Many of the water protectors had day jobs—as lawyers, environmental activists, filmmakers, and even drone pilots. Many of them were close to nodes of power. And an overwhelming number of the leaders were women, a novelty in Indian protest. The protesters were making a stand on behalf of all Americans for better processes, better decisions, and better laws for our energy future, to protect all of us.
A friend asked me recently with some frustration, “Where is our Martin Luther King? What do we want exactly?” I thought about this and I remarked that we don’t have a Martin Luther King. Coming from a household where my father had made us listen to King’s speeches on records, I had always considered this a loss, a gap, a hole. But maybe it’s not. Maybe we don’t have one because we both don’t need and can’t have a King. We Indians are a plurality. We have always been a plurality. There are more than five hundred different tribes in the United States, and we all have different cultures, histories, landscapes, and ways of organizing politically. And we are not only “still here”—we are here and are working to undo the violence of the ages. We are united by the legacy (and current practices) of colonialism to be sure. But we are and have always been more than what the government has done to us or tried to do to us and failed: mainstream us. And while, like African Americans, we have fought for and won some (but not all) of our civil rights and equal protection, we have always fought for something quite different from that, too: that we are American and Indian, and as Indians we belong to sovereign nations and have treaty rights—pared down though they may be—that have always been our rights, rights we had long before the United States existed. Nor do we have, as does the African American civil rights movement, a single institution like slavery to define our struggle and a hard date for when that was to have ended.