The struggle over the Dakota Access Pipeline (DAPL) has many levels. The people most immediately affected, the people being told they are in the way, are the Standing Rock Sioux in particular, and the Great Sioux Nation in general. They are backed by tribal nations coast to coast that see their interests rising or falling with Standing Rock’s.
If the Black Snake pipeline prevails over the indigenous people of the Dakotas, there are circles of concern that take in Bismarck, North Dakota, the U.S. and Canada. It’s no exaggeration to say the fight to kill the Black Snake lends a whole new meaning to a chant from the days of the mainstream Civil Rights Movement: “The whole world is watching!”
Treaties and tribal sovereignty for the Great Sioux Nation are at the core of this movement, but Standing Rock has attracted allies who know nothing of that history and are protecting their own interests.
The history is as complicated as any attempt to describe the Great Sioux Nation to persons who come to it cold. As simply as can be stated, that great nation normally refers in the U.S. to the constituents of the Seven Fires Council, principally the Lakota and Dakota. The Nakota or Assiniboine people are linguistic relatives but live mostly in Canada in political confederacy with the Cree.
Another way to understand the Great Sioux Nation is through geography rather than linguistics, encompassing the totality of the Indian reservations in the Northern Great Plains region of the U.S. and consisting of lands called by the colonists the Dakotas, Wyoming, Nebraska and Montana.
The shooting part of the Indian wars ended with two iconic engagements between the U.S. Army and the Great Sioux Nation. The Sioux, with Cheyenne and Arapaho allies, were attacked by the Seventh Cavalry under the colorful Indian fighter and Civil War hero George Armstrong Custer. The resulting engagement destroyed five of the Seventh Cavalry’s 12 companies and is remembered by Indians as the Greasy Grass Fight. The colonists call it the Battle of the Little Bighorn or Custer’s Last Stand. Regardless of the name, both sides have reason to remember the bloodshed of June 25-26, 1876.
Greasy Grass was the high point of post-Civil War Indian resistance on the Northern Plains. The low point was the massacre of non-combatants set in motion at the Standing Rock Agency when Hunkpapa holy man Sitting Bull was “killed while resisting arrest” on December 15, 1890. Sitting Bull’s vision had guided the Indian resistance at Greasy Grass and foretold the outcome.
Upon Sitting Bull’s death, about 200 Hunkpapa fled Standing Rock to join Miniconjou Chief Spotted Elk. The reconstituted Seventh Cavalry forced Spotted Elk’s band to camp at Wounded Knee Creek, where they were outnumbered and facing four Hotchkiss guns. On December 29, 1890, the shooting part of the Indian wars ended with the massacre of some 300 Sioux, mostly non-combatants. Photographs of frozen bodies of women and children and the elderly Spotted Elk turned public opinion against the killing that had become so one-sided.
The Indian wars—understood as the process of separating indigenous people from their property—continued by less violent means and are being fought to this day.
A part of the history that is more obscure to the colonists than Greasy Grass or Wounded Knee but is in the face of the Standing Rock Sioux every day is the Black Snake’s encroachment on a spiritual battleground. The first camp of the water protectors was called Sacred Stones, after the perfectly round formations that used to be produced by the currents at the confluence of the Missouri and Cannonball Rivers.
The river quit disgorging sacred stones after 1958, when the U.S. Army Corps of Engineers rearranged the currents of the Cannonball by dredging for the construction of the Oahe Dam to create the lake of the same name. The Standing Rock people, having had their spiritual values and practices trampled by the creation of Oahe Lake, now object to that same lake becoming the lair of the Black Snake.
Even colonists who find those spiritual values to be the stuff of superstition should be able to understand that the Oahe Dam destroyed more Indian land than any other single public works project in North America. The Corps of Engineers inundated almost 56,000 acres of Standing Rock land and 104,000 acres of the Cheyenne River Reservation.
Like the Eastern Band Cherokee after the Tennessee Valley Authority built the Tellico Dam, the Sioux were left with sacred sites only reachable with scuba gear. Like the Cherokee, they adopted the practices suitable for the surface water and the rest became another blood memory of the colonial onslaught.
The trail of the Black Snake requires no federal permit because most of the route is across private land. So it is state governments rather than the federal government that can cede eminent domain authority to a company formed to make a profit.
The federal government has only a few choke points where the Black Snake requires a permit, principally to cross federally regulated waters. The immediate permitting issue is allowing the pipeline to cross Lake Oahe. The Corps of Engineers is charged with protecting the values expressed in the Clean Water Act and the Rivers and Harbors Act.
The issue hidden within the process is how specific the permitting process needs to be to comply with the law. The Corps of Engineers has created a class of permit called “Nationwide 12” (NWP 12) that amounts to a fast-track approval to appease the political forces in the U.S. that are in perpetual grievance mode about the time and money environmental regulations consume.
The first use of NWP 12 for a major project was in 2012, for the Gulf Coast Pipeline, the new moniker for the southern part of the Keystone XL Pipeline, proposed to move bitumen produced in the Canadian tar sands to refining facilities in Texas and Louisiana. Using NWP 12 meant that the Gulf Coast Pipeline got permission to cross 1,950 federally regulated waterways in four states without having to make investigations specific to each crossing to assure enforcement of the Clean Water Act and the National Environmental Policy Act (NEPA).
NWP 12 was created to finesse a serious political problem in which the Standing Rock Sioux are being tossed by the crosscurrents. When Republican candidates line up for public inspection, they have a wish list of federal agencies they wish to abolish. The Environmental Protection Agency usually vies with the Education Department for number one on the hit list.
Every NEPA review is a cost center, requiring studies on the ground and repeated defense of the project at public hearings as well as responses to written comments.
Environmentalists, somewhat hypocritically, now are more interested in the climate emergency the U.S. is polluting itself into than in this or that watercourse or endangered species. The objective becomes, if you gave them truth serum, to make every project involving fossil fuels more expensive and slower, without regard to the specifics on the ground.
Tribal governments, holding federal promises of consultation, are caught in the middle between no regulation and regulation so stiff as to make many projects prohibitively expensive.
The tribal issue often involves cultural preservation. Petroglyphs, sacred sites, and burials that are important tribal values become ammunition in the larger political clash. The purpose of tribal consultation goes far beyond clean water and sets up the National Historic Preservation Act as a means to protect artifacts associated with tribal values.
The bureaucratic method to fast-track pipeline projects is to break them into segments and claim that each segment is too insignificant to require a full NEPA review. Dallas Goldtooth, representing the Indigenous Environmental Network in a press statement, came out strongly against abusing NWP 12 to silence tribal consultations:
Oil companies have been using this antiquated fast-track permit process that was not designed to properly address the issues of mega-projects such as the Dakota Access pipeline…
Goldtooth is correct, but getting the NEPA toothpaste back in the tube after the Obama administration squeezed it out may present a political challenge. As Obama gets closer to the end of his second term, it becomes more feasible for the pipeline companies to run out the clock. The Washington Post reported this week that Obama’s wish to re-route the Black Snake away from Standing Rock is running into the same problem.
NWP 12 tends to shut off tribal input, and lack of tribal input is asserted as the legal basis for stopping DAPL. The problem with that objection to DAPL is that a faulty procedure can always be cured by a do-over. The Corps of Engineers has more time for a do-over than Obama has left in office.
As the NWP 12 regulations are used right now, the project is considered small enough to fast-track if it is “single and complete” and would result in loss of no more than one half acre of waters under federal jurisdiction. While that sounds reasonable, allowing pipeline companies to stack up hundreds of “small project” permits results in a separate category for pipelines and renders what should be transparent to affected communities opaque until the pipeline company has already spent so much money that stopping the project looks unfair.
Samantha L. Varaslona, writing in Georgetown Environmental Law Review, claims that the Gulf Coast Pipeline runs for 485 miles and crosses federal waters 2,227 times. This shows that the Corps of Engineers has succeeded in containing costs and shortening the process for its own convenience and that of the pipeline companies.
What the Corps overlooks is that the public policy dilemma has more than one horn. On the other side is clean water and cultural preservation—avoiding harm—and the Standing Rock Sioux are searching in vain for a fair hearing.
That’s only the first level of the circles of concern here that span the entire planet.