When news broke of an oil pipeline protest at a reservation in northwestern North Dakota in the summer of 2016, hardly anyone batted an eye. The American public was caught up in a tumultuous presidential campaign that promised up-to-the-minute shock and awe.
Yet as the days and weeks went on, the crowd of protestors grew both in number and voice, encompassing tribal members from across the country. By September, the protest – and its home tribe, the Standing Rock Sioux, and nemesis, the Dakota Access Pipeline – had become front page news.
The Duty to Consult
So how did we get here? How did a project such as DAPL, which was announced in June 2014, find itself stalled and the subject of national debate two and a half years later?
For Travis Clark ’14, it all comes down to the duty to consult – as laid out in Executive Order 13175. A complicated and somewhat vague rule, it charges executive departments and agencies with “engaging in regular and meaningful consultation and collaboration with tribal officials in the development of federal policies that have tribal implications.” The order also notes that those agencies are “responsible for strengthening the government-to-government relationship between the United States and Indian tribes.”
“The magic language in that executive order is, whenever the rights of the tribes are ‘implicated,’ it requires the government agency to provide substantive consultation early in the decision-making process,” said Clark, an enrolled tribal member of the Osage Nation in Oklahoma. “But there’s not a ton of guidance on how, when and where the consultation duty kicks in and what procedurally and substantively is required for adequate consultation.”
In the case of the DAPL, Clark said, those efforts came too little, too late, and the tribes “have been written out of the equation.” He said the U.S. Army Corps of Engineers sent a “Dear Tribal Leader” letter notifying the affected tribe that a permit was being considered, and later held a listening session with tribal members.
“There wasn’t very much in the way of ‘consultation,’” Clark said. “This was in January; construction was going to begin in March. The tribes were extremely upset because the executive order calls for ‘substantive consultation.’ You can’t just come out here and amuse us; it has to be early in the decision-making process. Their feeling is that tribal consultation meant just checking a box.”
Some have argued that the land doesn’t belong to the tribes, but the tribes contend that the land is still protected by treaty, so they still have rights to it.
“Building a pipeline injures our existing treaty rights to this land, even though it’s not trust land,” Clark said. “The building of this project injures and has the potential to injure our rights to that land. We absolutely should be at the table.”
In his mind, the “aggressive” actions of Energy Transfer Partners to initiate permits and construction on the DAPL “forced the hand of the tribes to take protest action.” He believes the protest, which gained the attention of the mass media in late 2016, is responsible for persuading the Army Corps to take another look at the project.
As of press time (March 2017), a federal judge denied a last-ditch effort by the Cheyenne River Sioux and Standing Rock Sioux Tribes to halt the flow of oil through the Dakota Access pipeline.
Trust Lands and Treaty-Protected Lands
Until recently, Clark served as lead attorney with the Rapid City, South Dakota-based firm that represented the Cheyenne River Sioux Tribe for the Keystone XL Pipeline and Dakota Access Pipeline matters. The bulk of his work there was connected to the Keystone XL Pipeline project and its impact on the Cheyenne River Sioux Tribe. He said the situation with DAPL and the Standing Rock Sioux is nearly identical, with both projects impacted by the highly regulated issue of Indian trust land.
“It’s a headache for companies like Energy Transfer Partners or TransCanada to build on unless the tribes are on board, and in western South Dakota, that sort of cooperation is just not going to happen,” Clark said. “Some other tribes make other decisions – at Osage [in Oklahoma], natural gas is all over the reservation. But these infrastructure projects are in the northern plains around tribes that put their foot down.”
The solution? Reroute to avoid Indian trust land altogether. Still, in the case of both projects, the routes cross land for which the tribes have treaty-protected use rights, largely for gathering cultural resources through hunting, fishing and foraging. And even when the paths are rerouted, they still end up immediately adjacent to trust lands.
“The company has plausible deniability – you’ll hear Energy Transfer Partners say the pipeline is not on any part of the reservation,” Clark said. “It’s kind of a half-truth. It’s 100 yards away.”
For the Cheyenne River Sioux, Clark said the Keystone XL proposed crossing was a drill underneath the tribe’s primary clean drinking water source. When a pipeline crossing the Yellowstone River in Montana burst in early 2015, more than 50,000 gallons of oil spilled into the river, prompting the governor to declare a state of emergency, and leaving residents without clean water. Critics of the DAPL project have expressed concern that a break could happen in the Missouri River too.
So, why are some tribes, like those in the Dakotas, less likely to allow development on their land than tribes in other parts of the country? Clark believes the answer is, in part, historical.
“Back home (in Oklahoma), oil and gas development started around the turn of the century,” Clark said. “For instance, Keystone would have gone through my home reservation, and the tribe was fairly OK with it. It’s been such a part of existence in Oklahoma for Oklahoma tribes that no one really bats an eye when a pipeline is built. This is fairly new in the Dakotas.”
There also are incentives to consider. Tribes have mineral rights to their land, so when a pipeline is built, the tribe has an incentive to get oil to market. This isn’t the case just with oil – other infrastructure projects have incentives too. Wind energy development is a potential source of financial benefit for tribes in the Dakotas.
“In the instance of the DAPL, the tribes have no benefit whatsoever. They basically carry all of the risk of a spill and get zero benefit,” Clark said.
For Charles Dolson ’14, the DAPL conflict took a different turn. As executive director of the Red Lake Band of Chippewa in northern Minnesota, Dolson had worked with Enbridge Energy, which has an ownership stake in the DAPL, to finance a 10-mega-watt solar project for the tribe.
“Our goal is to be energy independent,” said Dolson, who grew up on the Red Lake Indian Reservation. “Enbridge helped us put together the financing package so we could do that. We were on the verge of having an agreement when we hit September, a time when the protest was becoming very loud.”
The clash between law enforcement and protestors resulted in Red Lake tribal leaders pulling the deal with Enbridge. Dolson said they viewed the partnership as political “poison,” though he still sees Enbridge as an organization that wants to pursue renewable energy.
Take one look at history, and it’s easy to see why Dolson’s tribal council was hesitant to put its tribe’s interests above those of another. The relationship between tribal nations and the U.S. government has been, at times, heartbreaking. Most notably when it comes to assimilation.
Efforts to assimilate tribes and their members into American society are a complicated part of our history, with initiatives waffling over the years. In the decades that followed the dismantling of more than 100 tribal nations through 1930s legislation, Indian children affected by child welfare situations were moved from their homes and placed into the foster care system outside of their tribal communities.
“It was well-intentioned, but had terrible traumatic effects on tribes and their culture,” said Ron Walters ’10, a staff attorney at the Indian Child Welfare Act (ICWA) Law Center in Minneapolis.
The ICWA, passed in 1978, makes tribes a party to the proceedings, allows families to transfer cases to tribal court and provides tribes with exclusive jurisdiction to hear cases for tribal members living on the reservation.
Through ICWA, Walters said, more services are provided and more active steps are taken with the goal of getting kids back to their own families.
Walters worked for five years after law school for the Mille Lacs Band of Ojibwe in a Legal Aid office. There, he handled evictions, disability benefits and child protection cases – “their problems were basically the same as anybody else in the county” – but with the added complications of ICWA and Public Law 280. But Walters stumbled into Indian Law almost literally, as his introduction to the subject came from meeting an ICWA Law Center volunteer coordinator at the public interest fair during his first year of law school.
“I started volunteering there and was able to work on research projects for actual cases, like big, contested adoption cases that were really interesting legally, touching on unsettled areas of the ICWA, and also factually very interesting,” he said. “I got pretty intrigued with what I was doing right away. I just found a groove there and never really left.”
He started working with the Mille Lacs Band as a law clerk and was hired on as a staff attorney after passing the bar. He returned to the ICWA Law Center full time in 2016 and runs an estate planning practice on the side.
As a non-native person working exclusively with native populations, Walters has experienced the complicated relationship between the U.S. and tribal nations in a more personal way. He has witnessed racism toward his clients, as well as distrust from them – some questioning whether a white lawyer truly could be an advocate for a native family.
“You still have grandparents on the reservation whose memory from childhood was being told to go run and hide in the woods because social workers were coming with school buses to take kids away to foster homes,” he said. “Hiding from social workers was a very real part of childhood. ... The shorter answer is, there has always been a conflict between white culture and native culture, either in terms of control of land or control of resources or approaches to living.”
The Dawes Act is a major result of those early assimilation efforts and still complicates lives today. This 1887 initiative authorized the U.S. government to divide tribally held trust land into parcels for individual tribal members, effectively separating native people from their communities. The lasting impact: complicated divisions of assets for heirs and jagged, disconnected parcels of protected tribal land that are playing out in the pipeline route disputes we’re seeing today.
A Call for Awareness and Tribal Unity
Clark sees tribal sovereignty as a “black hole” in most Americans’ understanding of how their nation works. The attention given to the DAPL protest has the potential to change the narrow understanding of Indian culture shared by many Americans today, including the level of influence tribes have on the U.S. government.
“Everyone is familiar with federalism and the general idea where the central national government shares power and sovereignty and governance with 50 states, but that’s where 99 percent of people’s understanding stops,” Clark said. “In reality, it’s not just federal government and state governments, but also tribal government.”
Walters, too, added that it’s important for people to “view Indian culture as being dynamic – it hasn’t been frozen in time,” he said. “A lot of the practices you see in native culture are historically based, but a lot of them are in response to day-to-day issues that are going on right now.”
Yet in some ways history and present day culture for native communities are all too similar. The number of native children in foster care in the United States is disproportionately high compared to the number of non-native children, and it’s stayed at roughly the same rate for decades. Most of Walters’ cases involve a parent struggling with chemical dependency.
“When you look at how raw the history has been and how recent and traumatizing it has been, it’s not hard to guess why the community is still struggling,” Walters said. “These aren’t simple problems, and there has obviously been a long-standing history of poor treatment of native tribes by the federal government, so it’s easy to look at the Dakota Access Pipeline situation as being another chapter in that history.”
For Clark, he sees the protest as an impetus for change in the way tribes support one another. He uses the Three Affiliated Tribe in North Dakota as an example of this – the tribe sells oil from its reservation, much of which would be transported by the DAPL. However, when Standing Rock opposed the pipeline’s development, Three Affiliated stood behind them, elevating Standing Rock’s concerns above their own financial interests.
“We haven’t seen tribal unity at this level for a long time,” Clark said. “It’s the mindset that, ‘If they can treat Standing Rock this way, then next they’ll treat us this way.’ I have a lot of hope that what’s going on in North Dakota will bring tribes closer together and there will be a lot more unity going forward.”
Tied Up in Federal Funds and Contracts
There’s no path out of this conflict without unity between tribal nations and the U.S. government, as well. When Congress passed the Indian Self-Determination Act in 1975, sovereignty was expanded, and authority was given to U.S. government agencies to contract and make grants with Indian tribes for the purpose of providing federal services. These contracts have affected tribal nations in unforeseen ways, demanding constant partnership between communities.
The government provides funding for tribal programs, and the tribes administer them, just as any private company does. Congress also is obligated to pay for cost overruns with these contracts, including travel expenses, workers’ compensation, insurance and legal fees. Cost overruns make for a major issue in the debate on how to manage federal dollars, but in Indian country, they’ve had a deeper impact.
Because tribes don’t generally collect taxes on their people or benefit from the local property tax base, they rely on these federal dollars to maintain the same community services afforded to American cities, counties and states. When the government doesn’t make good on its promise to pay the over-runs, tribes are left with the bill, resulting in deep cuts to education, health care and public housing in tribal nations.
In a nation such as White Earth, where Dan Hickey ’13 worked, drugs have been a problem, and cuts to health care only made things worse.
Hickey, a tribal member of Lac du Flambeau in northern Wisconsin, has spent the bulk of his young career working in Indian child welfare – as a student attorney with the Regional Native Public Defense Corporation, as an intern with the Indian Child Welfare Law Center, as an intern with the U.S. Senate Committee on Indian Affairs and as a child welfare attorney for the White Earth Nation.
“When you think of sovereignty, you think you’re entirely independent from the federal government, but it’s not really the case,” Hickey said. “Even if the tribes get paid what they’re owed, a lot of damage was already done.”
Still, Dolson added, the state of Minnesota in particular has been very good at working with tribes, especially when it comes to increasing social services. Dolson regularly works with Emily Johnson Piper ’05, commissioner of the Minnesota Department of Human Services.
“We’ve worked with Emily really closely to help build up and greatly expand Red Lake’s existing services program,” he said. “It’s been helpful in allowing us to speed up the process of rehabilitating children under targeted case management and getting them back in place with their families.”
Walters, too, praised the work of his government partners.
“Although not perfect, Hennepin County has really embraced the spirit of ICWA and the historical difficulties tribes have had and the roles county governments have played in this area,” he said. “The judges, attorneys and social workers really do seem to have buy-in to the spirit of ICWA.”
Dolson acknowledged that the healthy relationship he enjoys with the state doesn’t exist between all tribes and communities.
“Anywhere you govern is very expensive to operate, and tribes do it with so much less that it can become a burden on their community counterparts,” he said.
He said the tribes’ inability to tax and enforce certain laws, as well as the lack of bottom-line funding that would come to a municipality or county through the state or federal government, all contribute to the problem. And while casinos can be a source of financial relief for tribes, in northern Minnesota, where the casino market is saturated and the population is sparse, the revenue can’t solve the tribal communities’ woes.
Infrastructure and development are the two leading issues that contribute to tension between tribes and the U.S. government today, Clark said. In other capacities, the relationship is good, albeit “complex.”
“It’s hard to say it’s better now or it’s worse now,” he said. “It’s sort of a marbling between the two. It’s such a close and complex relationship; I think it’s impossible to answer.”
As senior adviser with the Bureau of Indian Education, Clark works with tribes around the country to ensure the 183 schools within the bureau’s system are equipped with the resources necessary to provide a quality education to tribal children. The bureau’s work with tribal schools, he said, is “a partnership.”
“Every agency with the government, at some point – as the Army Corps of Engineers is learning right now – needs to have a relationship with tribes,” Clark said. “The agency needs to foster that relationship to make sure it’s strong and cooperative.”
With a new administration in the White House, some who work with tribal populations are left holding their breath. Dolson said he expects to see some deregulation (potentially positive for tribes), but anticipates backlash from President Donald Trump tied to the businessman’s history in casinos. The president’s commitment to increasing infrastructure also would benefit some tribes, Dolson said. Following a listening session with the president’s transition team in December, Dolson said he was left with the impression that “they really want to work closely and help accomplish some goals for Indian country that are very positive.”
Looking forward, Walters, too, is optimistic.
“While the Dakota Access Pipeline situation seems sad and frustrating and upsetting in terms of corporate interest being allowed to threaten the livelihoods of disenfranchised people, I’ve also seen governments and tribes work well together and pursue common goals and values in a way that’s really respectful and positive,” Walters said. “I don’t think I could do the work that I do if I saw the system as faulty from the ground up. We’re struggling to make sense of what the history of all this treatment has been and how the legacy is affecting modern-day issues, but there does seem to be opportunity for things to be done differently.”