Oct. 23, 2016
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Hundreds of people protest the Dakota Access Pipeline.
Vanessa Bowen

A Kink in the Pipeline

Federal agencies intervene in Dakota Access, call for broader review of Native involvement in infrastructure projects

September 14, 2016, 12:00 am

On the Saturday morning of Labor Day weekend, when bulldozers started moving toward rock cairns and other culturally significant sites recently identified by the Standing Rock Sioux tribe, Native Americans gathered first to watch, and then to stop them. The situation escalated as security teams arrived with dogs, and tribal protesters left bloodied and maced. The tribe had just filed papers documenting those sites to the court, and was still awaiting the decision on a requested injunction.

“How would the government or anybody feel if we went and started digging up Gettysburg?” asks Tyler Wade, from the Laguna Pueblo, who had gone to join the protest of the Dakota Access Pipeline, which has drawn thousands of Native Americans to North Dakota to stand in solidarity.

The Dakota Access Pipeline is a proposed 1,200-mile pipeline that would move crude oil across four upper-Midwestern states. Its path cuts within half a mile of the Standing Rock reservation and proposes to bore under Lake Oahe and the Missouri River, the source for drinking water for the reservation’s 8,000 residents, as well as millions of people downstream all the way to the Gulf of Mexico. Since April, a growing number of tribes have been represented in an ongoing occupation of the riverbanks and campaign to stop the construction, arguing that local tribes didn’t have the chance to adequately review the area for and defend their cultural sites before construction began.

Their latest efforts through the court systems to obtain an injunction, which challenged the US Army Corps of Engineers permitting process, was denied, but federal agencies’ intervention could affect tribes around the country.

Nearly all of the Dakota Access Pipeline’s path lies on private land, so it needed almost no federal permitting of any kind.

“No federal agency had the ability to prevent DAPL’s construction from proceeding on these private lands,” wrote James Boasberg, US District Court Judge, in the decision issued on Sept. 9. “At most, the [US Army Corps of Engineers] could only have stopped these activities at the banks of a navigable US waterway. An injunction of an unlawful permitting now can, at most, do the same.”

With 48 percent of construction complete and no sign that Dakota Access will stop construction even if the court stopped the permits for the 3 percent subject to federal jurisdiction, Boasberg wrote, the court was, in fact, “powerless” to prevent the harm for which the tribes sought the injunction.

Minutes later, the Department of Justice, US Army Corps of Engineers and Department of the Interior intervened, pausing construction on land bordering and under Lake Oahe until it could review previous decisions.

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be a nationwide reform with respect to considering tribes’ views on these types of infrastructure projects,” the agencies’ statement reads.

Those conversations should cover how to engage tribes on infrastructure-related reviews and decisions related to tribal lands, resources and treaty rights; and whether new legislation should be proposed to Congress.

“Our voices have been heard,” Tribal Chairman Dave Archambault II said in a press release following that announcement. “Native peoples have suffered generations of broken promises and today the federal government said that national reform is needed to better ensure that tribes have a voice on infrastructure projects like this pipeline.”

In New Mexico, representatives from 19 pueblos have signaled their support for Standing Rock, as have chapters of the Navajo Nation and the Mescalero Apache Tribal Council. The Mescalero Apache tribe president wrote, “This is a fight that all tribes face.”

“This decision came out of response to thousands of people going to Standing Rock and speaking up about this, and had people not gone there to defend land and water, I don’t know that the Department of Justice, in collaboration with other federal agencies, would have released anything,” says Rachael Lorenzo, of the Laguna Pueblo and Mescalero Apache tribe. “I do think it’s a step in the right direction. It gives a way for tribes to really help legislators, and I would hope legislators are open to hearing what works for tribes and what doesn’t.”

Having watched the Gold King Mine spill last summer contaminate the land and water for hundreds of Diné people, Lorenzo says, sometimes the conversation seems to stems from a more philosophical core: “The water and the land are so sacred, and they can’t be replaced, so it’s hard for tribal communities and their government to work with federal or state agencies and even just ask the question, ‘Why did this happen in the first place? Why are we in the position of having to come back to the table to explain why this is wrong?’”

In a Sept. 13 memo to employees, Kelcy Warren, chairman of Energy Transfer Partners, which is building the pipeline, declared, first, pride in the project as a safer and more efficient alternative for moving crude oil than the trucks and rails used now.

Of the recent federal request to voluntarily halt construction, he added, “We are committed to completing construction and safely operating the Dakota Access Pipeline within the confines of the law. … We intend to meet with officials in Washington to understand their position and reiterate our commitment to bring the Dakota Access Pipeline into operation.”

The statement also pointed out that much of the pipeline’s route through North Dakota runs adjacent to an existing natural gas pipeline, and that the area has already been “studied, surveyed, and constructed upon—at least twice before—over the past several decades,” and that still, archaeologists, environmental inspectors or trained staff are on-site during construction. He also called concerns about water contamination “unfounded.”

Wade is back in New Mexico for now, but he plans to return to North Dakota as soon as he can.

“The construction company is still working, just on the border of those 20-mile lines, so it’s up to us to stop it,” he says. “There was an action where two people locked themselves down to construction to stop construction today. These are every day battles that we’re fighting in order to stop this pipeline.”


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