An Unfair Fight: The Dakota Access Pipeline v. The Standing Rock Sioux

A vital controversy involving a small group of brave Sioux Tribal members and a huge Energy corporation has been far too sparsely covered and Amy Goodman’s arrest for “participating in a riot” has been extensively reported in the mainstream media.

Ms. Goodman was originally charged with criminal trespass, a misdemeanor, after she broadcast scenes of a protest at a construction site of The Dakota Access Pipeline. On Friday, the State’s Attorney for North Dakota filed ‘riot’ charges against Ms. Goodman for the same incident, and today, October 17, District Judge John Grinsteiner will decide whether probable cause exists for the riot charge. Documentary filmmaker and producer Deia Schlosberg has also been charged with felony conspiracy for her reporting on the protests. EcoWatch reports that the charges levied against her carry a maximum sentence of up to 45 years.

The journalists are the exception, between August and the end of September, protests and clashes with police resulted in the arrests of 123 mostly Native Americans.

The 1,167 mile Dakota Access Pipeline running from North Dakota to Illinois is scheduled for completion in January, 2017. Unlike its more famous and controversial cohort, the Keystone Pipeline, Dakota Access was approved by the Army Corps of Engineers under the so-called ‘fast track’ option that treats the pipeline as a series of small construction sites and grants exemption from the ordinarily federally mandated environmental review. (This evasion of the regulations was likely allowed because the pipeline does not cross international borders.)

Dakota Access ran into controversy when they rerouted the pipeline, originally slated to run north of Bismark, in response to concerns about the possible effects of any leakage on the drinking water in that city. The Pipeline was routed along the Missouri River, about ½ mile north of the Standing Rock Sioux reservation, on land that the government had seized from the Sioux about sixty years ago. In the 1960s, the Army Corps of Engineers built five large dams on the Missouri River and implemented the Pick-Sloan Missouri Basin Program, forcing Native Americans to relocate from flooded areas. Over 200,000 acres on the Standing Rock Reservation and the Cheyenne River Reservation in South Dakota were flooded.

The Sioux shared the same fears about their drinking water as the city of Bismark, and they feared that the pipeline would destroy burial grounds and other land that belonged to or had previously belonged to the tribe and were important cultural, historic and religious sites. The Sioux filed suit for an injunction to halt construction. “This is one of the most significant archeological finds in North Dakota in many years,” said Tim Mentz, a Standing Rock Sioux member and a long time Native archeologist in the Great Plains. “[Dakota Access Pipeline] consultants would have had to literally walk directly over some of these features. However, reviewing Dakota Access’s survey work, it appears that they did not independently survey this area but relied on a 1985 survey.”

“These [federal provisions] are intended to slow this process down, so that they can make sure the right environmental decision is being made,” says Sarah Krakoff, a professor of environmental resource and Indian law at the University of Colorado Boulder. “The Clean Water Act has substantive provisions that prefer good environmental outcomes to bad. And the proximity of this pipeline to their main water source does make their legal case stronger than some I’ve seen.”

These newly discovered historic finds may no longer exist. The tribe and its legal team say that less than 24 hours after evidence of the new sacred sites were provided to the court, the Dakota Access company began construction on those same sites, perhaps destroying many of them forever. An injunction would halt construction while the issue was pending. Obviously Dakota Access wanted to continue production as proceedings dragged on, eventually making the lawsuit moot.

While perhaps not warriors in the traditional mode, the Sioux took on some of the toughest opponents out there. Dakota Access, LLC, is building the $3.8 billion pipeline. Dakota is a subsidiary of Energy Transfer Partnership, a publicly traded limited partnership whose holdings include Sunoco. Thirty-eight banks, including Goldman Sachs, Citibank, Royal Bank of Scotland and Morgan Stanley have granted $10.25 billion in loans and credit facilities in direct support of the pipeline.

To fight the pipeline, the Sioux formed the Sacred Stone Camp where protestors have settled in. Their numbers vary, but at least 1,000 people, primarily tribal members, have maintained their vigil. One of Dakota Access’ arguments for the pipeline is the ‘8,000 to 12,000’ jobs that construction will create. (Even the company’s own propaganda does not suggest that any off these jobs will be permanent) Presumably Dakota Access was not including the guards and dog guards they have employed against the protestors in scenes painfully reminiscent of the 1960s. The core of these protestors is not the privileged scions of the United States’ educated classes: the Standing Rock Sioux are poor people. An excellent synopsis of the Standing Rock Sioux can be found here.

The Chamber of Commerce decried the Standing Rock Tribe, but referred to them ubiquitously as “anti-energy protesters.” The organization never mentioned that most of the protesters are from Native communities or nations.

And this may be why the protests make news only when celebrities talk about them or Amy Goodman gets arrested.

On September 9, 2016, Judge James E. Boasberg of the federal District Court for the District of Columbia denied the Standing Rock Sioux Tribe its request for a preliminary injunction to stop the construction of the Pipeline. On September 12, 2016, the Tribe filed an emergency motion with the Court of Appeals asking for an injunction against further work on the pipeline pending appeal.

On Friday, just before the three day Columbus Day weekend, the appeals court ruled against the tribe and absent a miracle, the pipeline will likely be completed.

In a statement issued Sunday after the ruling, the chairman of the Tribe, Dave Archambault said that “We are guided by prayer, and we will continue to fight for our people. We will not rest until our lands, people, waters and sacred places are permanently protected from this destructive pipeline.”

President Obama has ordered a temporary halt to construction of a river crossing on federal lands and has asked that the Army Corps of Engineers assure that environmental regulation has been properly complied with. Mr. Obama asked Dakota Access to voluntarily stop the construction process in the area surrounding the federally owned land.

Dakota Access has declined President Obama’s request and will proceed. "Dakota Access looks forward to a prompt resumption of construction activities," the company said in an e-mail after the appeals court decision. Construction remains suspended only on the federal land subject to Mr. Obama’s order.

The Army Corps said in a statement that it hopes to conclude its review of issues raised by the tribe soon, but that it wouldn’t authorize a permit for the river crossing until then.

While I admire Ms. Goodman’s courage, I hope the fuss over her arrest does not obscure the real tragedy here. This is a story about major corporations and banks taking advantage of indigenous people in an outrageous manner and under cover of the law. This is not really a story about the journalist.