Fletcher Law360 Commentary: “The Right Side Of History: Obama’s Administration And DAPL”

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The Standing Rock Sioux Tribe, hundreds of Indian tribes that support its position, and the thousands of Indians that stand by its side in Cannonball lost an important ruling by a federal court on the Dakota Access Pipeline fight (DAPL), only to learn minutes later that the Obama administration, the defendant in Standing Rock Sioux Tribe v. United States Army Corps of Engineers, would dramatically reverse its position and grant most of the relief requested by the tribe.

Indian tribes and their people often speak about taking history into consideration in making important decisions. Tribal advocates are well known for delving into the history of their tribal communities in briefings and in testimony before trial judges, sometimes to the other parties’ consternation or confusion. It makes sense though, because many tribal claims are rooted in treaty language negotiated 150 years ago or more. Federal and tribal laws on membership or trust land acquisitions, for example, sometimes make little sense unless one knows, say, the history of removal or allotment or termination.

Tribes look to the future, too. We know this because those same treaties of the 18th and 19th centuries are evidence that those tribal leaders were thinking about the future, and even the ultimate fate of Indian people. Those treaties are the source of the federal government’s obligation to protect Indian lands and resources, and to provide government services such as education and health care.

The tribal leaders of today are also looking to the future in a series of federal court cases that derive from tribal treaty rights, the DAPL case just one of many. In the culverts subproceeding ofUnited States v. Washington, Pacific Northwest tribes who are signatories to the so-called Stevens treaties of 1855-1856 are litigating a massive treaty rights suit to protect the habitat of the anadromous fish from the culverts that cut off streams in which the fish migrate and spawn. The Penobscot Nation is litigating for the right to enforce and regulate its hunting and fishing rights on the Penobscot River in Penobscot Nation v. Mills. The Oklahoma Chickasaw and Choctaw Nations just reached a water rights deal with the state of Oklahoma. The next big treaty rights fight may be ever the Enbridge Line 5 pipeline, a practically ancient pipeline that runs under water at the Straits of Mackinac and is an environmental catastrophe in the making.

These are forward-looking suits that tend to complicate the notion of the adversary system. In these suits — and frankly nearly all Indian treaty rights suits — Indian tribes are acting both as self-interested plaintiffs and as legal actors seeking to preserve the public trust in our environment. All of the treaty claims noted above are about water — the Oglalla Acquifer under the DAPL, for example. These claims benefit everyone.

The Standing Rock suit is just the opening salvo in what will become a much larger suit, especially as other tribes join in asserting treaty rights. So far, the suit is only about the U.S. Army Corps of Engineers’ alleged failure to engage in tribal consultations tribes affected by the pipeline as its crosses federal lands (and possibly tribal lands) under the National Historic Preservation Act (54 U.S.C. § 300101 et seq.). Now, the legal fight is focused on the impact the pipeline construction is having on historic and cultural sites, and the fight on the ground has turned ugly as pipeline construction workers began tearing into these sites, allegedly, to destroy them before they could be entered into evidence. Pipeline employees have also attacked protesters with dogs and pepper spray. It is perhaps these actions by a ham-fisted energy company that has spurred on the federal government’s decision to slow down the DAPL construction, the same week President Obama called climate change trends “terrifying.”

Pepper spray and even Indian gravesites, relatively speaking, are small potatoes, given that the ultimate goal of the tribe and its supporters is to protect its water supply for the indefinite future, and possibly push back against climate change, too. The precedent here is the Obama administration’s rejection of the Keystone XL pipeline in 2015.

We may see these issues play out as tribal interests, perhaps with federal backing, make the case to federal courts for injunctive relief against DAPL and other pipelines, attempting to prove that the tribal interests and the public interests are the same. All too often, adversaries to tribal interests attempt to paint tribal interests as foreign to American public interests. Ironic as it may sound, federal courts tend to side with tribal adversaries. It would appear that the lame-duck Obama administration is joining Indian tribes on the right side of history. We shall see if the courts follow.

—By Matthew L.M. Fletcher, Michigan State University College of Law