The U.S. Army Corps of Engineers December 4, 2016, decision to undertake a full Environmental Impact Statement (EIS) for the proposed Dakota Access Pipeline (DAPL) crossing of Lake Oahe states something quite startling: Paragraph 5 in the full text states, “Because of security concerns and sensitivities, several documents supporting the [original] Environmental Assessment were marked confidential and were withheld from the public or representatives and experts of the Standing Rock Sioux Tribe. These documents include a North Dakota Lake Oahe Crossing Spill Model Discussion….”
How does that square with the February 7, 2017, statement by Acting Secretary of the Army Robert Speer when he announced the Army was aborting the EIS process and withdrawing the notice of intent? Speer said, “the decision was made based on a sufficient amount of information already available which supported approval to grant the easement request.”
What information? Available to whom? How sufficient? In whose judgement?
What happened to the conclusion reached by the Army’s Assistant Secretary for Civil Works, Jo-Ellen Darcy, in December, when she said, “it’s clear that there’s more work to do”?
In Custer Died for Your Sins (1969), Vine Deloria Jr., wrote: “Past events have shown that the Indian people have always been fooled by the intentions of the white man. Always we have discussed irrelevant issues while he has taken our land. Never have we taken the time to examine the premises upon which he operates so that we could manipulate him as he has us.”
With the Army’s secret documents and double-talk on Dakota Access Pipeline, Indian country now has yet another example of being fooled and manipulated by the white man.
The December promise of a Dakota Access Pipeline EIS review came after several rounds of talking between Standing Rock and the U.S. government during the months-long encampment of water protectors at Standing Rock. Close watchers were already wary of the promise and pledged to stay at the encampment; but many others celebrated the promised review—ignoring the long history of manipulation that Vine Deloria wrote about.
The federal back-and-forth on Dakota Access Pipeline offers an opportune moment to remember—and apply—the ancient adage: “Fool me once, shame on you. Fool me twice, shame on me.”
Or, as George W. Bush mangled it in a 2002 speech about “American History and Civic Education”—”fool me once, shame on – shame on you. Fool me – you can’t get fooled again.”
Either way you say it, the moral of the saying leaves no doubt: When the same person uses the same tactics to fool you more than once, you’ve got no one to blame but yourself.
For much too long now, Indian representatives have placed their trust in the so-called “U.S. federal trust responsibility” toward Indian nations. The many U.S. violations of promises, treaties, agreements, and laws shows that the “trust responsibility” rhetoric functions as what Deloria called a “premise” used to fool and manipulate people.
The “trust responsibility” stems from early 19th century U.S. Supreme Court decisions that gave birth to federal Indian law—creating doctrines of “domestic, dependent nation,” “ward/guardian,” and “plenary power”—all based on the 15th century concept of “Christian Discovery”—the claim by the Christian colonizers that they had a right of domination over the Native Peoples and owned lands they “discovered.”
Those original federal Indian law decisions have never been overruled. The U.S. government to this day still claims the right to dominate Indians and own their lands. The major precedent of Christian Discovery, Johnson v. M’Intosh (1823), has been cited in more than 300 cases to date.
The number goes higher when you add cases that use “discovery” without citing Johnson. For example, City of Sherrill, N.Y. v. Oneida Indian Nation of New York (2005) said, “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”
Be clear: the federal Indian law version of “trusteeship” rests on the claim by the U.S. that it “owns” Indian lands it “discovered,” and “holds them in trust” for Indian Peoples.
At this point, U.S. courts—and unfortunately many “briefcase warriors”—simply assume that “discovery” is the “law” in federal Indian law. When the courts do that, they are manipulating Indians; when briefcase warriors do that, they are being fooled. Law involves arguments and counterarguments; with no counterargument, no change can happen.
Federal Indian trust law differs so markedly from ordinary trust law that they are two different concepts. In ordinary trust law, a trustee holds property for the benefit of another. Ordinary trust law is rooted in centuries of decisions describing high standards of fiduciary responsibility. In ordinary trust law, courts have said, “the duties of a trustee are the highest known to the law.”
In federal Indian trust law, the duties are perhaps the lowest known to law. For example, in United States v. Navajo Nation (2009), the court reversed a lower court decision that tried to apply “common law trust duties of care, candor, and loyalty” to the U.S. The court rejected that principle.
In Cherokee Nation of Oklahoma v. United States (1990), the U.S. Court of Claims described the federal Indian law trusteeship as “bare,” and said “fiduciary obligations applicable to private trustees are not imposed on the United States” unless the U.S. specifically agrees to be bound by them.
In Lone Wolf v. Hitchcock (1903), the court said, “We must presume [emphasis added] that Congress acted in perfect good faith in the dealings with the Indians….” In fact, the Lone Wolf decision declared the federal Indian law trustee has “plenary power,” which means, “not subject to be controlled by the judicial department.”
Back to Dakota Access Pipeline: In December, when the Army Corps of Engineers said it would not approve an easement for the pipeline to cross under Lake Oahe, U.S. Secretary of the Interior Sally Jewell praised the decision, saying it “underscores that tribal rights reserved in treaties and federal law, as well as nation-to-nation consultation with tribal leaders, are essential components” of federal decision making.
The Corps’ February reversal of the Dakota Access Pipeline decision shows how inessential these factors really are. To the extent that Indian Nations depend on the federal Indian law trust responsibility to protect their lands, they are being fooled. The federal Indian law trustee decides for itself what factors are “essential”—and it can change its mind at any time, for whatever reasons it comes up with.
Put all this together, and you’ll see why Deloria urged us to “examine the premises.” You’ll see the wisdom in Frank Archambault’s assessment of the Army’s December move: “It’s a trick. It’s a lie. Until that drill is shut down it’s not over yet…We’ve been lied to and deceived this whole time. Why should this time be any different?”
“Fool me once, shame on you. Fool me twice, shame on me.”
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.