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Standing Together: How the Federal Government Can Protect the Tribal Cultural Resources for the Standing Rock Sioux Tribe

Standing Together: How the Federal Government Can Protect the Tribal Cultural Resources for the Standing Rock Sioux Tribe

Elizabeth Bower

 —

Before the Europeans arrived in North America, Native nations covered virtually all of the contiguous United States.[1] Since the point of first contact, Native Americans have been forced to deal with Euro-American colonial powers.[2] The tribal-federal relationship during the latter half of the 19th Century was particularly gruesome in that the federal government forcibly removed tribes from their land and placed them on reservations.[3] Once the government removed the Native Americans to the reservations, the policy was to transfer the remaining lands to non-Native American ownership.[4] The effect of the removal was huge, leaving many historic, prehistoric, and sacred sites unprotected from looters and environmental threats.[5] Many Native Americans worship particular sacred sites, believing these specific sites hold important connections to the spirit world, significant events, or their ancestors.[6] Presently, one such threat to these cultural resources is the Dakota Access Pipeline (“DAPL”).[7]

On July 27, 2016, the Standing Rock Sioux Tribe (“Tribe”) filed a complaint against the U.S. Army Corps of Engineers for declaratory and injunctive relief, invoking challenges under the National Historic Preservation Act (“NHPA”), the National Environmental Preservation Act (“NEPA”), and the Clean Water Act (“CWA”).[8] The Tribe argued that the DAPL “threatens the Tribe’s environmental and economic well-being, and would damage and destroy sites of great historic, religious, and cultural significance to the Tribe . . . . [The DAPL] also crosses waters of utmost cultural, spiritual, ecological, and economic significance to the Tribe and its members.”[9] The DAPL is a proposed pipeline set to transport crude oil from North Dakota through South Dakota, Iowa, and Illinois.[10] Though the DAPL does not pass through the Tribe’s reservation, it comes within a half-mile of it, on what the Tribe considers treaty land.[11]

On September 9, 2016, the Federal District Court for the District of Columbia denied the Tribe’s request for an injunction, holding, “[T]he Corps has likely complied with the NHPA and . . . the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.”[12] That same day, however, the Department of Justice, together with the Department of the Army and the Department of the Interior, issued a joint statement halting construction of the DAPL and calling for “government-to-government consultations” to discuss tribal input on the DAPL and other infrastructure projects.[13] Upon further review, the Army Corps ultimately denied the request for an easement on December 4, 2016.[14] However, on January 18, 2017, the Army Corps announced that it would be taking another look and preparing an Environmental Impact Statement (“EIS”) regarding the DAPL’s request for an easement.[15] In its notice, the Army Corps stated it would allow for a two-week public comment period.[16] But then, on January 24, 2017, President Trump issued a memorandum pressing the Army Corps to expedite its review of the DAPL’s route.[17] Following President Trump’s memorandum, the Army Corps told Congress that it would be waiving the public comment period and granting the easement. Thus, in devastating news, President Trump and his administration made the decision to allow the DAPL to proceed. However, the Tribe and its supporters are still protesting and pursuing legal action.[18]

Unfortunately, the Standing Rock Sioux Tribe’s case is an all too familiar story. For centuries, the federal government has exploited tribal lands.[19] But, this case brought global attention to a national issue; politicians, celebrities, and tribes have been standing with the Tribe, speaking out, and protesting against the DAPL.[20] When the Obama Administration released its statement, it proposed to include Native American tribes in future infrastructure decisions.[21] But the future of the Tribe’s land has found itself in the hands of a new administration—one that clearly supports the DAPL. This Note discusses the history of tribal land rights and the current state of statutory protection of tribal cultural resources. Further, this Note proposes that in order to ensure protection of cultural resources on tribal lands, the federal government must increase its consultation requirements. Part I discusses the history of tribal land rights, focusing on how the current statutory scheme and management of tribal affairs came about. This Part analyzes and discusses the key cases from the past two centuries and the prevalent doctrines that have arose. Part II discusses the current position of tribal land rights. This Part looks to current statutes and how the federal government now handles tribal affairs. This Part analyzes the ways in which the federal government currently succeeds—or more often fails—in protecting cultural resources on tribal lands. Additionally, this Part discusses the Tribe’s case against the Army Corps of Engineers and the government’s response to it, emphasizing the Tribe’s statutory arguments. Part III concludes the Note by discussing what the federal government can do in the future to ensure protection of cultural resources on tribal lands. Primarily, the argument is that increased consultation rights within the existing statutory framework are necessary to achieve meaningful and adequate protection of cultural resources on tribal lands.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] Alan Taylor, American Colonies: The Settling of North America 10 (Eric Foner ed., 2001).

[2] See generally Carole E. Goldberg, Rebecca Tsosie, Kevin K. Washburn & Elizabeth Rodke Washburn, American Indian Law: Native Nations and the Federal System (6th ed. 2010) (discussing the federal government’s relationship with Native nations over time).

[3] Id. at 21–22.

[4] Id. at 24.

[5] See Stephanie Ann Ades, The Archaeological Resources Protection Act: A New Application in the Private Property Context, 44 Cath. U. L. Rev. 599, 599 (1995) (stating that the looting and trafficking of Native American artifacts is a thriving and growing business in the United States).

[6] Jeri Beth K. Ezra, The Trust Doctrine: A Source of Protection for Native American Sacred Sites, 38 Cath. U. L. Rev. 705, 732 (1989).

[7] Complaint, Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, No. 16-1534 (JEB), 2016 WL 4734356, at *1 (D.D.C. Sept. 9, 2016).

[8] Id. at *12–37.

[9] Id. at *1–9.

[10] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, No. 16-1534 (JEB), 2016 WL 4734356, at *1 (D.D.C. Sept. 9, 2016). See also Energy Transfer Partners, L.P., The Route, http://www.daplpipelinefacts.com/about/route.html (last visited Feb. 13, 2017) (“The pipeline starts at the Bakken and Three Forks shale formations in North Dakota and runs southeast through South Dakota, Iowa, and Illinois, ending near Patoka, Illinois.”).

[11] Complaint, Standing Rock Sioux Tribe, 2016 WL 4734356, at *7 (“The Tribe is a successor to the Great Sioux Nation, a party to the two Treaties of Fort Laramie in 1851 and 1868. In those Treaties, the Sioux ceded a large portion of their aboriginal territory in the northern Great Plains, but reserved land rights ‘set apart for the absolute and undisturbed use and occupation’ of the Indians.”)

[12] Id.

[13] Press Release, Dep’t of Justice Office of Pub. Affairs, Joint Statement from the Dep’t of Justice, the Dep’t of the Army and the Dep’t of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Sept. 9, 2016), https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.

[14] Memorandum from Dep’t of the Army, Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota, (Dec. 4, 2016), http://earthjustice.org/sites/default/files/files/stmt.pdf.

[15] Department of the Army, Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC’s Request for an Easement To Cross Lake Oahe, North Dakota, 82 Fed. Reg. 5543 (Jan. 18, 2017).

[16] Id.

[17] President Donald Trump, Memorandum Regarding Construction of the Dakota Access Pipeline (Jan. 24, 2017), https://www.whitehouse.gov/the-press-office/2017/01/24/presidential-memorandum-regarding-construction-dakota-access-pipeline.

[18] Bill Chappell, Tribe Reportedly Files Legal Challenge to Dakota Access Pipeline, National Public Radio (Feb. 9, 2017), http://www.npr.org/sections/thetwo-way/2017/02/09/514317352/tribe-reportedly-files-legal-challenge-to-dakota-access-pipeline.

[19] See Ezra Rosser, Ahistorical Indians and Reservations Resources, 40 Envtl. L. 437, 478 (2010) (“[T]he United States ‘encouraged industry to exploit Indian country’s wealth of natural resources,’ even where not supported by tribes or tribal members.”).

[20] See Lorraine Chow, These Celebrities Take a Stand Against Dakota Access Pipeline, EcoWatch (Sept. 9, 2016), http://www.ecowatch.com/justice-league-dakota-access-pipeline-2000093607.html (writing about the many celebrities who have gone to Standing Rock or who have spoken publicly against DAPL).

[21] See Press Release, supra note 13 (calling for government-to-government communication).

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