Perspectives on the Dakota Access Pipeline

BYU Law Professors Michalyn Steele and Brigham Daniels discussed tribal and environmental perspectives on the Dakota Access Pipeline now being built across North Dakota, contingent to lands owned by the seven tribes of the Lakota Nation. The discussion was sponsored by the Native American Law Student Association (NALSA) and was held November 11, 2016.

Professor Steele described a Native American doomsday prophecy of a black snake, coming from the North that would poison waters and bring death. Many in the Lakota Nation Sioux tribes have taken the role of “Water Protectors” in speaking for children, unborn children, plants, and animals—those who have no voices to protest the pipeline’s building. An oil spill in their lands would poison the Missouri River and bring death and homelessness to the tribe.

The construction of the pipeline began without an environmental impact statement, stated Professor Daniels, because the Army Corps of Engineers said it wasn’t warranted because of being categorized a “small handle” project rather than a “major” project. The tribes have sued and lost in the D.C. Circuit, pleading that federal law required consultation with them on major federal projects and that Native American graves and cultural resources are being destroyed. Although the pipeline doesn’t go directly over tribal lands, its route is over historic treaty lands which should still give the tribes a consulting voice. The tribes lost.

Water Protectors have spoken to the Obama Administration, have asked that construction stop on the pipeline, have chained themselves to equipment, and met in large groups, unarmed, to pray. Construction has not halted.

North Dakota has responded with police armed with pepper spray, water hoses, and rubber bullets. Journalists trying to tell the protest story are targeted by police, being arrested or equipment confiscated. Protestors are charged with felonies, jailed, and housed in dog kennels waiting for hearings.

Professor Steele said this fight is an old one, “Tribes have historically paid the costs of economic development while the wealth has been reaped by others.” She pointed out a new trend in this fight, however. “Other tribes have been coming together in North Dakota from all over including international indigenous peoples banding with the Lakota tribes. This has never happened before. The United Nations declaration has been invoked protecting indigenous people, and the United States has been urged to comply with its obligations. Also, for the first time, tribes are wielding enough political clout to be contenders in the battle.”