On horseback at Standing Rock protest site. Photo by Daniella Zalcman.
The Department of Justice promised to consider nationwide reform in how the U.S. treats tribal land. Legal experts consider what, exactly, that might look like.
By Tristan Ahtone / 09.16.2016
A week after the Obama administration’s intervention on behalf of the Standing Rock Sioux, the question on everyone’s mind is this: Can this tribe’s fight to stop the Dakota Access pipeline change the relationship between the United States and Indian Country?
In response to mounting protests at the Standing Rock reservation in North Dakota, the federal government temporarily suspended construction near Lake Oahe along the Missouri River and also requested that Energy Transfer Partners voluntarily halt activities within 20 miles of the area. According to a joint statement from the departments of Justice, Army, and Interior, the pipeline would not be authorized until the federal government could determine if previous decisions regarding potentially impacted sites would need to be reconsidered—sites the Standing Rock Sioux Tribe says are culturally and historically relevant.
“This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations,” the statement says.
The move by the federal government to pause construction and invite tribal officials to the table could represent a new era between the United States and tribal nations. The stated aim of the departments’ consultation session is to discuss potential changes to how the federal government interfaces with tribes as well as to examine possible legislation to support that goal.
But there are still two questions: What, exactly, would reform look like? And can the United States actually change how it interacts with tribal governments?
“This case embodies the future trajectory of what is going to happen in this nation as we deal with our resources in an increasingly globalized world,” says Rebecca Tsosie, a federal Indian law and human rights expert at the University of Arizona.
One of the key problems with constructing the Dakota Access pipeline (DAPL), according to the Standing Rock Sioux Tribe, has been the issue of consultation.
Under federal law, executive departments and agencies must engage in “meaningful consultations” with tribal nations when proposed policies or projects could impact those communities. The Standing Rock Sioux allege that the U.S. Army Corps of Engineers—the agency responsible for permitting the DAPL— attempted to circumvent the law by failing to hold meaningful consultations with the tribe. The Army Corps of Engineers claims that it did consult with the tribe, primarily by mail, in order to comply with the law.
“The issue is: Do we actually implement these laws in a way that protects, for native people, the core interests and needs and aspirations that native people have going forward, or are those laws just in place to serve as a sort of procedural mechanism?” says Tsosie. “If we find that our laws really aren’t sufficient to meet the needs of native peoples, are we viewing that as a legal problem or is that a continuing political problem?”
Generally, in the eyes of tribes, “meaningful” consultation with state or federal agencies and officials means more than just a phone conversation or a letter in the mail: Meaningful consultation is an actual meeting where tribal leaders and affected parties actually talk things through in order to find common ground for the good of all parties.
This fall, according to the joint statement from the departments of Justice, Army, and Interior, tribes will consult with officials on two questions:
“(1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.”
However, when asked to expand on its proposed meeting plan, the Department of Justice declined to comment.
This is how the proposed consultation session could spell big changes for tribes:
If the federal government committed to rethinking how it consults with tribal nations on projects that impact indigenous communities and created legislation to back those changes, future infrastructure projects in Indian Country—like pipelines—could face major hurdles before they even get started.
“When the government makes decisions that affect our communities or our land or our resources, tribes should be included,” says Jacqueline Pata, executive director of the National Congress of American Indians. “Tribes have the same responsibilities to their citizenry as other sovereigns have to theirs and should be equitable partners at the table.”
Of course, the session also could be just a formality designed to assuage tribal tensions. And looking ahead to elections, cynicism over how a new administration will interact with Indian Country may cloud any positive outcomes that emerge from a meeting.
“The conversation about commitments to tribal interests should be present in every case, and I don’t see that going forward,” says Matthew Fletcher, director of the Indigenous Law and Policy Program at Michigan State University. “The next administration, whoever it is—even if it’s a President Clinton—I don’t see this happening in the same way that it did with the Obama administration.”
On a practical level, Fletcher says the big win at Standing Rock has been that the Army Corps of Engineers and other relevant agencies may have to revisit their previous decisions and carry out meaningful consultation sessions in order to complete their work. But in the long run, especially after President Obama leaves office next year, Fletcher says he’s unsure if there will be real change—although he hopes he’s proven wrong.
Regardless, until the federal government changes how it interacts with tribal governments, protests over development projects in Indian Country—like the one at Standing Rock in North Dakota—are likely to continue and grow.
“While we have very good laws on the books, they’re a procedural form of justice and not a substantive form of justice,” says Tsosie.
“If that’s what we have been doing as a nation, then what’s the corrective?”