Oil

A judge’s ruling on Standing Rock reinforces treaty rights

The first in a series of lawsuits sides with tribal sovereignty.

 

Remember the “rule of law” invoked at Standing Rock?

That was the phrase used over and over by law enforcement from North Dakota and Morton County. It was supposed to serve as a box to limit First Amendment and civil disobedience actions by water protectors opposing the Dakota Access oil pipeline crossing under the Missouri River.

But rule of law didn’t apply to treaty rights. Morton County Sheriff Kyle Kirchmeier told The Bismarck Tribune that was beyond his job parameters. “That cannot be worked out in Morton County,” the sheriff told the newspaper. “That has to be worked out with the federal government.”

This statement was and still is nonsense. The Constitution of the United States declares treaties to be the supreme law of the land. That’s higher than state law. And weightier than the claim of a property right on federal property. And significantly more potent than the urgency to construct an oil pipeline before the price of oil drops.

To enforce the so-called rule of law, virtual armies were sent in to arrest hundreds of people for speaking out. And today the county continues to cloud people’s lives, even manipulating the prosecution to ensure a guilty outcome without trial.

But here’s the thing: The Petrostate of North Dakota lost the rule of law argument a long time ago.

Protesters march at Standing Rock in opposition to the Dakota Access Pipeline.
Lucas Zhao/Flickr

It lost the debate when investigative reports showed that the state colluded with the company’s hired thugs to turn a powerful, beautiful and nonviolent protest into a “jihadist” moment. “As policing continues to be militarized, and state legislatures around the country pass laws criminalizing protest, the fact that a private security firm retained by a Fortune 500 oil and gas company coordinated its efforts with local, state, and federal law enforcement to undermine the protest movement has profoundly anti-democratic implications,” as reported by The Intercept last month.

All the company, the county, and the state, had to do was to be patient. Accommodate the camps. Learn from the community. Take heart from any lessons that might surface. Perhaps, even then, there would be disagreements, but at least there would also be respect. And there would have been an honorable place for the rule of law. Instead the company, state, and county, opted for might makes right.

This week a federal court had its own interpretation of the rule of law. U.S. District Judge James E. Boasberg wrote: “Lake Oahe holds special significance for the Standing Rock and Cheyenne River Sioux Tribes. Its creation necessitated the taking of approximately 56,000 acres of some of ‘the best land’ from Standing Rock’s Reservation, as well as 104,420 acres of Cheyenne River’s trust lands. Today, Standing Rock members rely on Lake Oahe’s waters to service ‘homes, a hospital, clinics, schools, businesses, and government buildings throughout the Reservation’ and to support agriculture and industrial activities. The lake is also the primary source of water for the Cheyenne River Reservation. Both tribes consider the waters to be ‘sacred’ and ‘central to (their) practice of religion.’”

In other words: Water is life. And that notion is backed up by a treaty relationship between the Standing Rock and Cheyenne River nations. My favorite part of the ruling is that the obligation requires “early involvement.” Or as the regulations say, that “means that a tribal government is given an opportunity to comment on a proposed action in time for the tribal government to provide meaningful comments that may affect the decision.”

Clearly that’s part of the rule of law, too.

So what now? There will be a continued legal back and forth. Some rulings will favor the tribes, others the pipeline company. And perhaps there will be a new Environmental Impact Statement. That’s expected and fits in with the rule of law.

This is a moment for the Dakota Access pipeline partners, the state of North Dakota and Morton County, to change tactics, too. This is the moment where the rule of law — and respect — can earn their way back into the conversation. I’d start by ending the criminal prosecution of water protectors. It’s excessive and clearly an affront because it so disrespected the rule of law. The company and state can start over, too, building on this court decision to start a new chapter.

So many lessons came from what happened at Standing Rock. Let respect for the rule of law be one lesson learned.

Mark Trahant wrote this article for YES! Magazine. Mark is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota and a member of The Shoshone-Bannock Tribes. He writes a regular column at YES!, where he is a contributing editor. On Twitter @TrahantReports.

High Country News Classifieds
  • GRAND CANYON DIRECTOR
    The Grand Canyon director, with the Grand Canyon manager, conservation director, and other staff, envisions, prioritizes, and implements strategies for the Grand Canyon Trust's work...
  • ADMINISTRATIVE ASSISTANT
    Great Old Broads for Wilderness seeks a part-time Administrative Assistant to support the organization's general operations. This includes phone and email communications, office correspondence and...
  • HISTORIC LODGE AND RESTAURANT - FULLY EQUIPPED
    Built in 1901, The Crazy Mountain Inn has 11 guest rooms in a town-center building on 7 city lots (.58 acres). The inn and restaurant...
  • ONE WILL: THREE WIVES
    by Edith Tarbescu. "One Will: Three Wives" is packed with a large array of interesting suspects, all of whom could be a murderer ... a...
  • PROGRAM DIRECTOR, SALAZAR CENTER FOR NORTH AMERICAN CONSERVATION
    The Program Director will oversee the programmatic initiatives of The Salazar Center, working closely with the Center's Director and staff to engage the world's leading...
  • WILDEARTH GUARDIANS - WILD PLACES PROGRAM DIRECTOR
    Salary Range: $70,000-$80,000. Location: Denver, CO, Portland, OR, Seattle, WA, Missoula, MT or potentially elsewhere for the right person. Application Review: on a rolling basis....
  • RIVER EDUCATOR/GUIDE + TRIP LEADER
    Position Description: Full-time seasonal positions (mid-March through October) Organizational Background: Colorado Canyons Association (CCA) is a 10 year old nonprofit organization fostering community stewardship of...
  • BOOKKEEPER/ADMINISTRATIVE ASSISTANT
    Position Description: Part-time, year-round bookkeeping and administration position (12 - 16 hours/week) $16 - $18/hour DOE Organizational Background: Colorado Canyons Association (CCA) is a 10...
  • LAND STEWARD
    San Isabel Land Protection Trust seeks a full-time Land Steward to manage and oversee its conservation easement monitoring and stewardship program for 42,437 acres in...
  • EXECUTIVE DIRECTOR
    Ventana Wilderness Alliance is seeking an experienced forward-facing public land conservation leader to serve as its Executive Director. The mission of the Ventana Wilderness Alliance...
  • COMMUNICATIONS AND DEVELOPMENT DIRECTOR
    The Quivira Coalition (www.quiviracoaltion.org) is a Santa Fe-based nonprofit that builds resilience on arid working lands. We foster ecological, economic, and social health through education,...
  • GRANT WRITER
    "We all love this place we call Montana. We believe that land and water and air are not ours to despoil, but ours to steward...
  • DEVELOPMENT DIRECTOR
    The Development Director is responsible for organizing and launching a coherent set of development activities to build support for the Natural History Institute's programs and...
  • WILDLIFE PROJECT COORDINATOR
    Founded in 1936, the National Wildlife Federation (NWF or Federation) is America's largest and most trusted grassroots conservation organization with 53 state/territorial affiliates and more...
  • EXECUTIVE DIRECTOR
    The Cinnabar Foundation helps protect and conserve water, wildlife and wild lands in Montana and the Greater Yellowstone Ecosystem by supporting organizations and people who...
  • TRUSTEE AND PHILANTHROPY RELATIONS MANGER,
    Come experience Work You Can Believe In! The Nature Conservancy in Alaska is seeking a Trustee and Philanthropy Relations Manager. This position is critical to...
  • EXECUTIVE DIRECTOR AT FRIENDS OF CEDAR MESA
    -The Land, History, and People of the Bears Ears Region- The Bears Ears and Cedar Mesa region is one of the most beautiful, complex, diverse,...
  • CONSERVATION SPECIALIST
    Position will remain open until January 31, 2021 Join Our Team! The New Mexico Land Conservancy (NMLC) is a non-profit land trust organization dedicated to...
  • OLIVERBRANCH CONSULTING
    Non-Profit Management Professional specializing in Transitional Leadership, Strategic Collaborations, Communications and Grant Management/Writing.
  • GREAT VIEWS, SMALL FOOTPRINT
    Close to town but with a secluded feel, this eco-friendly home includes solar panels, a graywater reuse system, tankless hot water, solar tubes, and rainwater...