This very topical dispute demonstrates and epitomises the fraught and contentious circumstances which manifest when competing ecological, cultural and business interests collide; all expostulating valid intentions and purposes, and all able to cite and rely upon some degree of national or international law in support of their argument.
The purpose of the Dakota Access Pipeline is to transport domestically produced crude oil from the production site in North Dakota, through 1172 miles of pipeline, to Patoka Illinois, where it will be refined and available to the United States consumer.
The competing interests represented in this dispute can be characterised as the importance of ensuring national access to domestically produced oil, the right of the Standing Rock Sioux Indians to exercise autonomy and control over their tribal lands and reservations for the benefit of their inhabitants, and the ecological and environmental concerns expressed by the Sioux in relation to potential impacts upon water quality and sacred sites, all in the context of the broader national interest that America become less dependent upon other countries for the oil on which its industries and consumers are so reliant.
The government position, promulgated in the 1988 ruling by Justice Sandra Day O’Conner, in the Supreme Court case Lyng V. Northwest Indian Cemetery Protective Association, is that divestiture of control, does not vitiate, undermine or preclude the right of the American government to exercise sovereignty and dominion in areas of land previously ceded to it by the French consequential to the Louisiana Purchase Treaty of 1803.
France declared in the Louisiana treaty of cession that she did “cede to the United States, in the name of the French Republic, forever and in full sovereignty, the said territory with all its rights and appurtenances.”
The following quote by Chief Justice Marshall is excerpted from the definitive court case in relation to the treatment of native Indian lands, Johnson V. McIntosh 1823; “this principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession”.
This mechanism for apportioning rights to land was intended to prevent military conflicts, but this undertaking failed to consider, recognize, mitigate or defray the losses conferred upon the Native Indians which the acquisition of the said lands would necessarily visit upon them, these peoples having hitherto occupied the land in tribal groups, and having ceded none of it to any colonizing interests.
The Standing Rock Sioux Nation advance edicts codified in the Declaration of the United Nations on Indigenous Peoples which requires free prior and informed consent for development impacting Indian land territories and waters.
But the antithesis of this argument is that the national interest will be served with the building of the Dakota Access Pipeline; that the United States will benefit from increased domestic oil production which provides greater energy independence, and conversely and beneficially, reduces dependence on other countries for the provision of oil. Moreover, the Dakota Access pipeline reduces demand on truck and rail transportation, so that transport for agricultural goods becomes more readily available.
However, the Standing Rock Sioux representatives, state that the Dakota Access Pipeline will threaten the water quality of the Missouri river, from where they draw their drinking and irrigation water, and will compromise the preservation of their burial grounds and sacred sites.
Thus, this highly publicized and very contentious issue exemplifies the complex relationship between the progression and expansion of business interests, the advancement of the economic and social interests of the United States, and the importance of ensuring that water quality and tribal Indian sacred sites are afforded the protection that they deserve, and which they are entitled to rely upon, under the United Nations Declaration of Indigenous Peoples, to which the United States is a signatory.
Determining and achieving an appropriate balance to ascribe sufficient weighting to each competing interest, then to propose and reach a compromise that serves the majority of interests, without vitiating or rendering deleterious effects upon another less prominent though no less important interest, is paramount as we traverse a trajectory prioritizing the needs of all, without disregarding the necessity for the maintenance of fairness and justice.
- Newcomb, S. (2016, August, 23), “Standing Rock Sioux Nation VS. The Pipeline”.
- V,Taliman. (2016, August, 15), Dakota Access Pipeline Standoff: Mni Wiconi, Water is Life West Coast Editor