By Beth Brown
Recently the issues surrounding the status of Native Americans and natural resources has been in the news regarding the Dakota Access Pipeline.[i] The Dakota Access Pipeline is supposed to bring crude oil from the less populated area of North Dakota down to Midwestern refineries.[ii] Native Americans have protested the project from its inception[iii], much like the Keystone XL Pipeline.[iv] The focus of the protest by the Native American tribes is centered on the possible pollution of their water supply, as the Dakota Pipeline would run under the Missouri River, and also on the grounds that the pipeline would cause the disruption of some burial grounds.[v] There has been a large contingent of Native Americans, as well as others, that have descended on the Dakota Pipeline construction in an attempt to stop the construction and the resulting clash between the two sides has been intense.[vi]
The push for more and more natural resources has created another situation where the interests of Native Americans are eclipsed by the constant pressure for more. The current situation is just another example of the United States government reneging on their obligations to the Native Americans under past treaties and statutes.[vii] The idea that Native American tribes are dependent-independent nations has created a dichotomy that creates questions about the legal status that Native Americans have to fight against constantly.[viii] The tribes are supposed to have protection for their religious and burial sites but that protection has been in question in regards to the pipelines.[ix]
The Native Americans have a reasonable argument in regards to possible pollution of their water, as there is a Sioux Reservation very close to the area in which the pipeline will travel under the Missouri river.[x] The oil company gave projections about the possibility of leaks from the pipeline and outlined the safety measures that will be taken to lessen the likelihood of leaks, but many experts outside of the oil industry find those numbers incredibly low and the likelihood of leaks much higher than the projections lay out.[xi] The idea that gas pipelines can leak small amounts continuously, which can ultimately surpass totals from large spills occurring only at one time, is that crux of disagreement among the camps involved in the dispute.[xii]
The Sioux reservation filed for an injunction in federal court to stop the pipeline construction and received a temporary stay until arguments could be heard, but ultimately the judge lifted the injunction.[xiii] The protests continued after construction was to start back, violent clashes ensued, resulting in many protesters being arrested.[xiv] The situation has been frozen by President Obama, as he has taken this opportunity to intercede on behalf of the Native American tribes and the environmentalist by indefinitely suspending construction of the pipeline until more information can be gathered and the Native Americans are given the proper voice in the decisions.
The actions by the Obama Administration might be a bright light at the end of the tunnel for the tribes that have been fighting these pipelines for so long, much like the victory that was reached when President Obama vetoed the Keystone XL pipeline.[xv] It would appear that the voices of the Native American tribes in relation to the possible harms caused to the environment and their religious burial grounds will finally be listened to.[xvi] The pipeline is a needed economical investment for the country’s untapped oil reserves but the Native American objections should not be overlooked. The possibility of leaks across a vast pipeline are high and the ability to catch them would almost outweigh the benefits in building the pipeline. The true environmental impact needs to be analyzed with a wide array of opinions coming to the table to allow for proper representation of all sides. Pipelines represent the future of the oil and natural gas industries across our country but their environmental impact must be weighed against their ultimate long-term usefulness.[xvii] It would hard to determine if the Native Americans would drop their protests if the pipeline was moved farther away from their reservation but a compromise in those terms might be the best way for the pipeline to continue with less resistance.
The future of this critical link in the natural resource industry is currently in flux with the advent of the Obama Administration stepping in and the next President will have a huge impact on what happens next for this critical sector of the economy. It is hoped that whoever that President may be they will continue to put the interests of every side (oil, Native Americans, and environmentalists) in play.
[i] Nives Dolšak, Aseem Prakash and Maggie Allen, The big fight over the Dakota Access Pipeline, explained, Wash. Post (Sept. 20, 2016), https://www.washingtonpost.com/news/monkey-cage/wp/2016/09/20/this-is-why-environmentalists-are-targeting-energy-pipelines-like-the-north-dakota-project/.
[iii] Anjana Nair, Opinion: North Dakota pipeline continues exploitation of Native Americans, The Daily Reveille (Sept, 18, 2016), http://www.lsunow.com/daily/opinion-north-dakota-pipeline-continues-exploitation-of-native-americans/article_e5b5be06-7dd5-11e6-8798-cfe6cb628a04.html.
[iv] Jacob Devaney, Sovereign Nations Walk Out of Meeting with U.S. State Department Unanimously Rejecting Keystone XL Pipeline, Huffington Post (May 17, 2013), http://www.huffingtonpost.com/jacob-devaney/sovereign-nations-walk-ou_b_3289501.html.
[v] The big fight.
[vii] See Worcester v. Georgia, 31 U.S. 515, 556 (1832).
[ix] Native American Grave Protection and Repatriation Act, 32 U.S.C.A. §§ 3001-3013 (West 2016).
[x] Andrew Westney, Tribal Challenges To Energy Projects: A Cheat Sheet, Law 360 (Sept. 16, 2016), https://www.law360.com/articles/840421/tribal-challenges-to-energy-projects-a-cheat-sheet.
[xiii] Standing Rock Sioux Tribe v. United States Army Corps of Eng'rs, No. 16-1534 (JEB), 2016 U.S. Dist. LEXIS 121997 (D.D.C. Sept. 9, 2016).
[xiv] Andrew Westney, ND Judge Unblocks Pipeline Protest, But Slams Mayhem, Law 360 (Sept. 16, 2016), https://www.law360.com/articles/840975/nd-judge-unblocks-pipeline-protest-but-slams-mayhem-.
[xv] Dolšak et al., supra note i.
[xvi] Westney, supra note x.
[xvii] Dolšak et al., supra note i.