A set of thousands of Native Americans from all across the United States of America are gathered in South Dakota to help prevent the Dakota access pipeline from going through the Standing Rock Sioux tribe’s land. The pipeline could potentially harm the tribe’s sacred land, ruin their fresh water supply, and other natural resources that are available for the tribe and their people. Why should the pipeline be allowed to be built on the tribal reservation when the United States has made treaties with Native American tribes to protect their land and resources?
In the article written by Ward Churchill “American Indian lands: The Native Ethic amid Resource Development” he talks about the landownership that many of the Native American tribes own as established by the United States government. According to Churchill, “It is recognized in law that such rights exist, and that the U.S. government has an obligation to ensure the basis for survival (including land and water) of the indigenous peoples that the government has subsumed.” (14) In other words, many of the rights that exist are in every treaty and executive order that was agreed upon by the Native American people and the US government, which include tribal land, water, and other natural resources that the tribes have on their tribal reservation. By having the Dakota access pipeline go through the reservation it would be a violation of the treaty between the tribe and U.S. government and many of the executive orders established by the presidents of the United States. Many of the treaties from the United States government and executive orders clearly states that the US government would protect the reservations of the native people, so that “native people reserved sizable and clearly defined territories for their own exclusive use and occupancy, free from internal inference by the United States.” (14) I agree with not wanting the Dakota access pipeline to go through the Great Sioux reservation because the United States has made a treaty with the tribe to protect the tribe’s natural resources, and that the tribe like all other tribes throughout the United States is a sovereign nation meaning that the tribe has its own government. The tribe should be able to not allow anything to go through their reservation without the tribe knowing and having approved whatever anyone wants to build on the reservation for example: the pipeline.
Over time, Indian Nations have learned to assert their rights and identity over the past few decades by implementing self rule and exercising the self government that the federal government recognized from the 1960s (Kalt & Singer 1). Native American tribal governments make up the political fabric of the United States, even though they are neither “states” nor “foreign states” in the political sense (Robertson 4). Rather, they are “domestic dependent nations,” which retained sovereignty from the pre-contact era. States, municipalities, and individual citizens still debate the scope of their powers even as the US government recognizes these tribal governments. However, the sovereignty of the tribal nations seems to be the only policy that debilitates with the power to stop the Dakota access pipeline from going through the reservation. The economic, social and political success of the native community has faced continuous attacks with the Supreme Court working to limit tribal powers over non-members repeatedly, as in the case of building the pipeline. Lower courts have also passed decisions that govern commerce and social affairs in the nations (Kalt & Singer 2). Congress has also increased bills that abolish tribal sovereignty, limit taxation powers and regulate commerce.
The acts of the federal government have diminished the ability of tribal governments to exercise their power (Robertson 4). Congress, which has plenary power over the affairs of Indians, has acted to limit the scope of this power. Where the US decides on allowing the pipeline to go through the Great Sioux reservation, the Indian Civil Rights Act offers statutory rather than constitutional reprieve. Those who feel the pipeline passing through the reservation violates their rights can bring a federal civil rights suit that challenges the violating act (Robertson 4). Bringing on the civil suit is the best way of challenging the acts, especially where they are unlawful and not communicated to the tribes.
Congress has limited power in getting tribal governments to concede to general application laws such as environmental application laws. If the laws do not mention the tribes and their application affect treaty rights, courts have to individually determine whether the laws apply to the tribe. Congress has power to abrogate Indian treaty rights, but is liable to compensate the tribe under the Fifth Amendment of the United States Constitution (Robertson 4). The courts first have to determine the intent of Congress before finding out that the Fifth Amendment taking has occurred. Moreover, the Supreme Court has actively worked to place limitations on the scope of tribal sovereign power. Similarly, the Bureau of Indian affairs and other related agencies have severely restricted the ability of Indians to control their land and benefit from its resources. These agencies of the government dictate what Indians do with their property. The notion that underlies the federal trusteeship is that tribes cannot manage their own lands. Therefore, the Tribal Trust Land gives the government the legal title to the tribal trust lands, with the beneficiary interest depending on the tribe (Regan 4). Therefore, the government has to prove beyond reasonable doubt that their building the pipeline is in the interest of the Indian tribes.
The federal government, which acts as a trustee is liable for any breach of trust, even though its liability is limited. Whereas the government exercises a fiduciary relationship with the tribes over its relationship, the liability only occurs where the government is dormant in its role such as United States v. Mitchell where the government was found liable for mismanaging the tribes’ timber (859). It is without doubt true that the federal government has exercised de facto rules over tribes and individual Indians without restraint in all their human affairs, but has often incurred liabilities. Upon demand, the United States has included the citizens of the tribes into armies, terminated the legal status of the tribes and their property, protected tribes from imposed sovereignty by states or municipalities, and conquered the tribes within its borders (Kalt & Singer 8). In exercising its fiduciary duties, the government is obligated to act in the best interests of the tribes, particularly where the tribe may draw particular benefits.
Following the treaty between Indian Nations and the United States, the government acquired the tribe’s land while promising protection and assistance in return. The process was fulfilled in the trust the federal government owed the tribes. The trust still plays a role and is critical to deciding whether the Dakota access pipeline should pass through the Great Sioux reservation. It is true that the United States made a treaty with the tribes to protect their natural resources and that the details of the treaty have to be respected. Yet, the same trust gives the government power to act in the interests of the tribe and holds them liable where they feel that the government has absconded its duty. The fact shows that the government should weight the benefits of the pipeline to the community before approaching the tribes with the question of building the pipeline. Second, the official federal policy of the treaty supports self-determination. The recent reservation regulations that give tribes a role in environmental protection is fitting because majority of the tribe are leasing out their lands to natural resource development. The amendments give the tribes ways of controlling their development, but also give the government the opportunity to lease the land with the promise of royalties for the period of lease. The pipeline has significant benefit to the United States from which, the Great Sioux reservation can benefit. It is true that the tribe has to approve of the government efforts before building begins on the reservation.
- Churchill, Ward. American Indian Lands: The Native Ethic Amid Resource Development.
- Kalt, Joseph P. and Singer, Joseph William. Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule. Faculty Research Working Papers Series, 4.16(2004): 1-48. Print.
- Regan, Shawn. Unlocking the Wealth of Indian Nations: Overcoming Obstacles to Tribal Energy Development. Property and Environment Research Center, February 18, 2014. Web.
- Robertson, Lindsay G. Native Americans and the Law: Native Americans under Current United States Law. Norman, OK: The University of Olkahoma Law Center. 2001. Web. (Cover Story). Environment 28.6 (1986): 12-34. Academic Search Complete. Web. 9 Oct. 2016.