By Amber Penn-Roco

The protests at the Standing Rock Sioux Reservation are, in a word, inspiring. The protests have included members of more than 100 tribes and are considered by many to be one of the largest Native American protests in modern times.

The protesters oppose the construction of the Dakota Access Pipeline. The pipeline will be nearly 1,200 miles long and will connect oil fields from North Dakota to Illinois. The pipeline crosses the burial grounds and other sacred and historically significant sites of the Standing Rock Sioux Tribe and threatens its only source of drinking water. In August the Tribe filed a lawsuit in federal district court seeking an injunction to halt construction of the pipeline. In September the injunction was denied.

However, the district court’s denial was counterbalanced by a joint state­ment issued by the Department of Justice, the Department of the Army, and the Department of the Interior that acknowledged the district court’s opinion but stated that the Army will not yet authorize construction of the pipeline. The joint statement asked the pipeline company, to “voluntarily pause” all construction activity within 20 miles of Lake Oahe, until the agencies reach a determination as to whether the project violates the National Environmental Policy Act.

The denial was appealed to the U.S. Court of Appeals for the District of Columbia. However, the U.S. Court of Appeals again refused to grant the Tribe’s request for an injunction. The Department of Justice, the Depart­ment of the Army, and the Department of the Interior issued a second joint statement, again refusing to authorize construction of the pipeline and re­questing that the pipeline company voluntarily pause construction activity. In October the pipeline company defied the agencies’ requests and proceeded with construction.

The tension between the protesters, also referred to as “water protec­tors,” and the police escalated throughout the protests. The police used pepper spray, rubber bullets, tear gas, and fire hoses on protesters. Over the course of the protests, hundreds were arrested. In November the U.S. Army Corps of Engineers and the Governor of North Dakota ordered the protesters to vacate their campsite. In December thousands of U.S. military veterans traveled to Standing Rock to serve as human shields between the police and protesters. In response to a request from the Tribe, the U.S. Commission on Civil Rights sent a delegation to Standing Rock to observe the situation.

In December the Army Corps issued a statement indicating that it would not approve an easement that would allow the proposed pipeline to cross under Lake Oahe. The Army based its decision “on a need to explore alter­nate routes” which it believes would be best accomplished through further environmental review. The decision essentially halts construction of the pipeline, granting a major victory to protestors. While many are celebrating the decision, many remain wary, pointing out that the conclusion of further environmental review is not certain and that the Trump administration may have a different approach to the pipeline. The pipeline company stated that it “fully expect[s] to complete construction of the pipeline without any ad­ditional rerouting in and around Lake Oahe.”1

The Standing Rock protests have thrust into the limelight the plight of tribes and the continual erosion of their rights. The protests are the culmina­tion of the Standing Rock Sioux Tribe’s frustration with the development and approval process for the Dakota Access Pipeline. The Tribe’s rights, culture, and natural resources have been repeatedly disrespected.

Prior to the protests the Tribe’s Historic Preservation Officer (“THPO”) sent multiple communications to the Army Corps expressing the Tribe’s con­cerns about the project, including the potential destruction of burial grounds and sacred sites and the proximity of the project to the Tribe’s water sources. The federal government failed to meaningfully respond to these letters or consult with the Tribe. The Army Corps then published an environmental assessment that stated, “the Standing Rock THPO had indicated to DAPL that the Lake Oahu site avoided impacts to tribally significant sites.”2 The assessment drew criticism from the U.S. Environmental Protection Agency, the U.S. Department of the Interior, and the American Council on Historical Preservation, among other tribal and environmental groups.

In forming an opinion about the struggle in Standing Rock, it is important to recognize the background and context surrounding the situation. For many legal practitioners in Indian Country the issues faced in Standing Rock are symptomatic of a larger problem—the erosion of tribal rights through the lack of meaningful consultation with tribes.

Tribes are sovereign nations. They are recognized as independent political communities, as distinct types of government, separate and apart from federal and state governments. The unique status of tribes, existing within but also outside of the federal and state government structure has led to difficulties ensuring that tribal governments are allowed to adequately participate in matters and decision-making that affects their own well-being.

Federal and state agencies have routinely recognized the importance of developing government-to-government relationships with tribes. As part of this relationship, many laws, regulations, and federal and state agency poli­cies require consultation with tribes on matters germane to tribal interests. Consultation, in theory, is an excellent concept. Tribes should be able to participate in decision-making that will impact them. However, in execution, consultation has left much to be desired. Many government agencies view the consultation requirement as merely a procedural step. Tribes, if they are provided with a consultation opportunity at all, are merely given a token opportunity to make their position known. Their views are often wholly ignored or dismissed with so-called mitigation measures that amount to nothing much. In many instances, a consultation requirement is disposed of by merely providing notice of a project and soliciting comments from a tribe. The difficulty in challenging this treatment is that the laws also seem to view consultation merely as a procedural requirement. Many laws, as written, require an agency to listen to a tribe’s concerns but do not necessarily require the agency to do anything to address those concerns.

Tribes are sovereign nations. Consultation between one sovereign nation and another, regarding how the actions of one will affect the other, should culminate in informed consent. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) contains multiple articles that recog­nize the importance of informed consent. Article 32 of UNDRIP provides “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affect­ing their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”3 Article 19 provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own repre­sentative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”4 Accordingly, consultation between the United States and tribes must require informed consent. That is, they should require obtaining permission from tribes and that permission must come after tribes are fully informed about any potential consequences of the United States’ actions.

The Standing Rock protests highlight the difference between consultation and meaningful consultation. Consultation that is done merely for the sake of fulfilling a statutory requirement does not fulfill the goals of the laws and policies requiring consultation. Meaningful consultation requires true col­laboration, in which a tribe’s input has an actual impact on the end result. And, most importantly, meaningful consultation between sovereigns should require informed consent.

Tribes are suffering from an onslaught of projects imposed on them by others that imperil their rights and their sacred duty to protect their surrounding natural resources and culture. A tribe’s rights are often attacked on multiple fronts. Projects that threaten them are often wide-scale and multi-dimensional. Tribes are often forced into a battle of attrition, in which they must defend their rights before a wide variety of decision-makers. For just one project, a tribe can be forced to spend years in litigation, first in an administrative proceeding and then in an exhausting sequence of court hearings. At each step in the process the rights of tribes are placed in the hands of state and/or federal agencies.

Tribes are facing a slow erosion of their rights, of their ability to fish, hunt, and gather according to ancient customs and traditions. The health and quality of natural resources long considered sacred are in jeopardy. Tribes are suffering a death by a thousand cuts.

The Standing Rock protests and their impact on the Dakota Access Pipeline will influence the consultation process for years to come. The protests are already bringing national attention to tribal rights issues. The tribes, and those of us who fight on behalf of them, must capitalize on this attention and ensure that tribal consultation is seen as more than merely a box for a bureaucrat to check.

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NOTES

1 BRIEF-Energy Transfer Partners and Sunoco Committed to Ensure Dakota Access Pipeline Completion, Reuters (Dec. 4, 2016, 11:21 PM), http://www.reuters.com/article/idUSFWN1DZ04I.

2 Alexander Sammon, A History of Native Americans Protesting the Dakota Access Pipeline, Mother Jones (Sept. 9, 2016, 1:16 PM), http://www.motherjones.com/environ­ment/2016/09/dakota-access-pipeline-protest-timeline-sioux-standing-rock-jill-stein.

3 United Nations Declaration on the Rights Indigenous Peoples, G.A. Res. 61/295, Annex, U.N. GAOR, 61st Sess. Supp. No. 53, U.N. Doc. A/61/53, at Art. 32 (Sept. 13, 2007), avail­able at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

4 Id. at Art. 19.

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A id=”AmberPennRoco”>Amber Penn-Roco is an attorney specializing in tribal sovereignty issues with Galanda Broadman, a native-owned Indian Country Law Firm in Seattle, Washington.