Oil

In the decision on Standing Rock, ghosts from the past

The federal government’s decision on Dakota Access pipeline could signal a shift in U.S.-tribal relations.

 

“People who remember history are destined to repeat it,” goes a bitter little joke in Michael Herr’s Vietnam War masterpiece, Dispatches. As events unfolded this fall at the confluence of the Cannonball and Missouri rivers, near the Standing Rock Reservation in North Dakota, a nation that has tried to forget the atrocities it committed at Sand Creek, Wounded Knee, My Lai and the Washita seemed determined to repeat its own tragic history.

But on Sunday, as thousands of military veterans formed a human barrier, shielding the protesters, who call themselves “water protectors,” from the National Guard, the Army Corps of Engineers announced that the Dakota Access Pipeline would be denied an easement across treaty-protected Indian lands, pending further analysis and an Environmental Impact Statement. This decision not only gives the Standing Rock Sioux an enormous legal victory, it is a seismic shift in the sovereign-to-sovereign relations between the federal government and the Indian Nations of the United States. Without question, when the declaration was signed, the ghost of a Baptist lay minister named Samuel Worcester was looking over Obama’s shoulder.

For historical echoes of the Standing Rock legal crisis, 1831 provides the perfect tuning fork. In the spring of that year, Worcester and eight of his missionary colleagues were arrested for violating a new Georgia state law prohibiting white Christians from holding Bible study sessions with Cherokee Indians. Giddy Georgia legislators had passed a law forbidding such activities in order to challenge the central authority of the federal government. All nine Baptist missionaries were thrown into prison as punishment for their alleged crimes against the state of Georgia, setting the stage for a major legal battle that would pit states’ rights against federal law and tribal sovereignty. In fact, as Georgia would learn, and now North Dakota, a state lacks real authority in such matters.

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The battle between the state of Georgia and Samuel Worcester, a Baptist law minister, helped solidify the notion of tribes' sovereign rights.
New Echota Historical Site

Georgia lawmakers in 1830 were making a stand against the treaty rights of all Indian nations, particularly the Cherokee — just like North Dakota Gov. Jack Dalrymple did last week, when he issued an eviction notice to the encampment of the pipeline protesters. But Georgia Gov. William Gilpin soon realized that, in the case of the missionaries, zeal had trumped reason. This was not the test of “state's rights” he had been hoping for. To save face, he offered the missionaries clemency if they promised to stop the Bible study lessons. Similarly, Dalrymple realized zeal had once again trumped reason and began back-pedaling on his eviction notice. Dalrymple’s pronouncements proved immaterial; the protesters had no intention of moving.

In 1831, seven of the missionaries took Gilpin’s offer for clemency, but two, Worcester and Elizur Butler, declined. Like the protesters at Standing Rock, neither Worcester nor Butler had anything to gain by remaining in prison, but they stayed for another year and a half, on the principle that monumental constitutional issues, with far reaching implications for the Indian tribes, were at stake in this disagreement. In a letter that soars to the moral heights of Martin Luther King’s “Letter from a Birmingham Jail,” Worcester posed questions to Gilpin that eventually would be heard by the U.S. Supreme Court. The words of this exchange now echo across the Great Plains of North Dakota and help us understand the decision made by the Army Corps of Engineers.

“What are we to gain by the further prosecution of this case?” Worcester asked. “Our personal liberty? There is much more prospect of gaining it by yielding than by perseverance. And if not, it is not worthy of account in comparison with the interests of our country?

Freedom from the stigma of being pardoned criminals? That also is a consideration of personal feeling not to be balanced against the public good.

The arresting of the hand of oppression? It is already decided that such a course cannot arrest it.

The prevention of the violation of the public faith? That faith is already violated, and perseverance has no tendency to restore it.

The reputation of being firm and consistent men? Firmness degenerates into obstinacy if it continues when the prospect of good ceases; and the reputation of doing right is dearly purchased by doing wrong.”

Worcester demanded that these questions be heard by a high court. Similarly, the Standing Rock Sioux demanded that the federal government honor the solemn commitments it made to the tribe in the Fort Laramie Treaty of 1851, which established homelands for the seven Sioux nations and guarantees by Congress to protect those homelands and the resources from depredations by white settlers.    

When it reached the Supreme Court, Worcester v. Georgia pitted the sovereignty of Indian nations against the jurisdictional presumptions of states (and any future entities, including, say, pipeline companies). In summary, Chief Justice John Marshall agreed with Worcester that the state of Georgia’s actions “were extensions of authority it never possessed in the first place,” and that “the acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States.”

At Standing Rock, the acts of the state of North Dakota, the permitting process undertaken by the pipeline company, and the failure of government agencies to safeguard the rights of the Sioux people were similarly repugnant. As president of the United States, Obama could not allow, in the haunting words of Samuel Worcester, firmness to degenerate into obstinacy, or misguided efforts to do right be dearly purchased by doing wrong. 

Police shoot water cannons at Dakota Access Pipeline protesters in sub-zero temperatures.
Avery White

Paul VanDevelder, author of Savages and Scoundrels: The Untold Story of America’s Road to Empire through Indian Territory (Yale University Press) is a regular contributor to High Country News and Writers on the Range.