What writers like me don’t know about the world outweighs what we do know by a ratio of 100-1, at best. We get away with reporting the news as if we know something because, as Mark Twain noted, we do the legwork, we interview the colorful suspects, and we buy ink by the barrel.
Then comes a sudden, confounding event like the Dakota Access Pipeline controversy at the Hunkpapa Sioux’s Standing Rock Reservation in south-central North Dakota. Encampments made up of members of hundreds of Indian nations and environmental organizations are protesting a proposed pipeline that will transport dinosaur juice from the Bakken oil fields near the Canadian border to refineries and ports in Illinois. In North Dakota alone, the pipeline will cross the Missouri River and nine of its major tributaries, as well as treaty-protected land belonging to the Hunkpapa Sioux.
The “water protectors” have increased by the day since August, at the confluence of the Missouri and Cannonball rivers. As the weeks turned into months, the “prayer camp” residents have become more resolutely entrenched, reminding journalists, local law enforcement officials and regional politicians from governors on down that when it comes to all things Indian, our best efforts to understand are not good enough.
It is no secret that the oil pipeline was routed across former Indian land in order to avoid contaminating the water supply of white-dominated communities. But most Americans lack a clear understanding of tribal sovereignty, the federal trust doctrine, or reserved rights treaties with Native nations. In fact, most of us are astonishingly ignorant about our own government.
The Intercollegiate Studies Institute, a conservative group founded five decades ago to measure civic literacy in American society, has demonstrated this by giving regular citizens the same exam immigrants take when they apply for American citizenship. Last year, when 2,500 college graduates and elected politicians took that exam, 1,700 of them flunked! The average grade among those who failed was 49 percent. The ones that fared the worst, with a grade average of 44 percent, were elected politicians.
It’s high time for a crash course in federalism and representative democracy. Before we allow Standing Rock to erupt into Wounded Knee III, all of us would do well to pause and ponder 10 important lessons that we should have learned in basic civics classes. The first fact is especially pertinent to the current situation:
1. Usufructory rights, the right of tribes to hunt, gather and fish in their “usual and accustomed places,” is coupled in treaties with reserved rights, which are guaranteed in perpetuity to Indian nations by the United States government. These rights protect a tribe’s ability to sustain the lives of its citizens with food, clean water, air, and natural resources, and to practice traditional religious customs, cultural practices and ceremonies without interference from non-Natives.
2. The Louisiana Purchase recognized Indian Nations as the owners of all the French territory west of the Mississippi. In that “purchase,” the federal government acquired the right to use the rivers for commerce and to extend the nation's boundary to the Rocky Mountains — nothing more than that.
3. Treaties were made with Indian Nations in order to acquire public domain for white citizens as they pushed the American frontier west across the continent. These compacts and covenants are protected by Article VI, Clause 2 of the U.S. Constitution as “the supreme law of the land.”
4. As “domestically dependent nations,” in the words of Supreme Court Chief Justice John Marshall, Indian Nations enjoy the full rights and benefits of any sovereign government.
5. Federalism incorporates a trustee-guarantor relationship between the federal government and the Indian Nations in the U.S. Constitution (the trust doctrine) that obligates the federal government to safeguard treaties, reserved rights and usufructory rights.
6. Treaties with Indian nations constitute the granting of rights from the tribes to the federal government, not the other way around.
7. Every one of the 500-plus treaty councils in the 18th and 19th centuries was convened at the request of the federal government, not the tribes.
8. Because the federal government requested treaty councils with the Indians, the U.S. Supreme Court has also ruled that the resulting treaties must be interpreted in the manner in which the Indians would have understood their terms and conditions at the time they were negotiated.
9. In most jurisdictional challenges, tribal sovereignty trumps state sovereignty.
10. David Archambault II, the tribal chairman of the Hunkpapa Sioux Nation, has as much legal standing at the United Nations and in international courts of law as any American president.
Legally, Indian tribes are powerful entities. In the matter of the Standing Rock Sioux vs. the Dakota Access Pipeline, I have little doubt that the tribe will prevail. The law of the land is on their side. Pipeline permits issued to oil companies by the Army Corps of Engineers do not trump the federal government's fiduciary responsibility to the tribes. Claims to the contrary by politicians are so much nonsense. For far too long, this, our “nation of laws, not of men” (in the words of John Adams) has acted with lawlessness and reckless abandon with its solemn responsibilities to the Indian Nations.
As the culture-war rhetoric simmers with caustic venom on the Northern Plains, the results of the civics survey mentioned earlier are sobering. Is it not disquieting to learn that 70 percent of us lack a rudimentary understanding of the basic principles of federalism? At what point do we cease to be a government of the people, by the people, and for the people, and become a nation of the blind leading the blind?
Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at firstname.lastname@example.org.