A succinct statement of the issues facing Standing Rock, written by Jeffrey Ostler and Nick Estes—in a January 16, 2017 ICT column, demonstrated, “There is no question about the accuracy of Standing Rock’s contention that the pipeline is being constructed across lands recognized as Sioux territory under the 1851 Treaty.” This point about the applicability of the Treaty must be made loud and clear—and repeatedly. The Treaty of 1851 sets a baseline against which surveys of lands and pipeline routes or any other project must be measured. The map provided alongside their column makes it easy to see the DAPL project crosses Treaty lands.
A second point in the column must also be emphasized at every opportunity: Treaties are—under the U.S. Constitution—”the supreme law of the land.” Every court, every agency, every government official in the United States must defer to the federal Constitution. This means they must defer to the Treaty of 1851.
No government office or agency—including the presidency—has authority to act contrary to the “supreme law of the land.” No matter how much Donald Trump or any of his advisers wish he were a dictator, their actions are bound by the law…unless they stage a coup, in which case there will be lots more than Standing Rock to deal with.
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Ironically—given the history of U.S. violations of Indian rights, if the president wants to use DAPL as a vehicle to mount a coup against the Constitution, Standing Rock will be in the forefront of saving American democracy—as a byproduct of defending the water!
So-called “Indian issues” have historically pitted Native Peoples against the forces of capitalist colonial development. The pattern repeats itself with DAPL. But this time, the conflict has broadened outside Indian Country, because so many non-Indians are awake to the underlying issues—water for life.
I want to add a few thoughts to the points made by Ostler and Estes beyond the Treaty of 1851, to clarify critical issues about the authority of the U.S. government in regard to Native Peoples.
Their otherwise useful analysis runs into trouble when they discuss the Black Hills. First, when they refer to the 1980 U.S. Supreme Court decision on the Black Hills—the one where the court said, “A more ripe and rank case of dishonorable dealing will never, in all probability, be found in our history”—they say, “Under U.S. law, the federal government does not have authority to return lands illegally taken, and so the courts remedied the taking of the Black Hills and the Article 16 lands by awarding monetary compensation.”
Second, when they point out that the Sioux Nation “has consistently rejected monetary compensation for the stolen lands and has instead argued for the return of the majority of Black Hills lands,” they refer to those lands as “under federal ownership.”
We need to understand that both the claim that U.S. law prohibits return of lands and the claim that the Black Hills are “under federal ownership” are manifestations of the overall U.S. claim of domination over Native Peoples. That claim goes back to the 1823 U.S. Supreme Court decision in Johnson v. McIntosh, based on the “Right of Christian Discovery.”
The “right” of Christian Discovery—as the Supreme Court itself acknowledged—traces to 15th century papal decrees that said Christian colonizers could claim any lands they “discovered” and take control of the Native peoples.
Standing Rock should never agree with the idea that the Black Hills are “under federal ownership,” nor should they accept the U.S. assertion that it cannot return lands it has invaded and claimed for its own. The time has come to stand up against the centuries-long violation of Indigenous Peoples’ lands by any government claiming the “right” of “discovery.”
I am not talking about an event in the past. The Johnson case has never been overruled. A search on Westlaw (accessed 25 January 2016) showed 330 cases citing Johnson, up to and including July 1, 2015.
Further, many cases rely on “right of 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 discovering European nation and later the original States and the United States.” The court cited intermediate decisions rather than Johnson.
Ostler and Estes state, “Congress authorized Oahe Dam under the 1944 Flood Control Act … [setting] into motion what the late Standing Rock Sioux scholar, Vine Deloria Jr., characterized as ‘the single most destructive act ever perpetrated on any tribe by the United States.'”
But the 1944 Act was not the legal basis for Oahe Dam! In fact, a March 10, 1958, decision by the U.S. District Court for the District of South Dakota (U.S. v. 2,005.32 Acres Of Land and Sioux Indians of Standing Rock Reservation, 160 F. Supp. 193) held that Treaties with the Sioux Nation blocked the 1944 Act!
The court stated, “The Flood Control Act of 1944 cannot [emphasis added] be the legislation necessary to authorize the taking of Indian tribal lands unless it could be held that a general law approving a series of particular projects can be applied to specific Indian lands which are bound by treaty [i.e., Treaty of 1851 ]. We believe such a holding to be untenable. General legislation is not sufficient to include Indian tribal lands.”
The judge went on, however, to cite cases on the “right of discovery,” and added, “Congress can abrogate the treaty in order to exercise its sovereign right… there [must] be clear Congressional action which indicates an intention to abrogate….”
The judge then concluded, “In order to emphasize the issue in this decision, we wish to restate that the authority of Congress to exercise the right of eminent domain over Indian tribal lands is not questioned. We are granting the motion of the Tribe because of a lack of exercise of this authority. The matter can be speedily remedied by bringing it to the attention of the Congress.”
Congress was quick to assert its “sovereign right” based on “Christian Discovery”: On September 2, 1958, it passed Public Law 85-915, “To provide for the acquisition of lands by the United States required for the reservoir created by the construction of Oahe Dam on the Missouri River and for rehabilitation of the Indians of the Standing Rock Sioux Reservation in South Dakota and North Dakota.”
The supposed “authority of Congress” to violate the Treaty of 1851 stems from the U.S. assertion of “right of discovery,” a claim by the federal government that it owns Native lands and can control Native Peoples as it sees fit.
We see that Standing Rock once again faces the unilateral assertion by the U.S. of a claim of “sovereign right” to dominate Indians.
In 1958, Standing Rock lawyers did not challenge the U.S. claim. As the judge said, “the authority of Congress…is not questioned.” Standing Rock should not make that mistake again!
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.