Hitting Pause on the Fourth of July: Indigenous Rights and Environmental Sovereignty

Image result for signing of declaration of independence

The Fourth of July holiday is hailed as Independence Day for America, the commemoration of breaking free of the tyranny of the British Crown. The enshrined ideals of life, liberty, and the pursuit of happiness in the Declaration of Independence resonate in the American psyche 241 years later. In rejoicing over our nation’s birth, there is an inherent messiness of democracy that precipitates and succeeds a revolution.

When Thomas Paine wrote the pamphlet, “Common Sense,” most colonists thought of themselves as aggrieved Britons. Paine’s writings in early 1776 helped sway the national consciousness toward independence:

Europe, and not England, is the parent country of America. This new world hath been the asylum for the persecuted lovers of civil and religious liberty from every part of Europe. Hither they have fled, not from the tender embraces of the mother, but from the cruelty of the monster; and it is so far true of England, that the same tyranny which drove the first emigrants from home, pursues their descendants still.

The irony of this Fourth of July is that as some of us are able to enjoy the festivities on these shores, we are also excluding individuals at our borders based on criteria that the U.S. Supreme Court will be weighing on in the fall with Travel Ban 3.0.

The process of coming to America was always arduous, but never before has it been as prohibitive. What a Catch-22 that we celebrate independence from religious persecution and still practice exclusion on the basis of religion.

Our freedom-loving government is also persecuting its native inhabitants by encroaching on their property rights and environmental protections.

The natives of the New World faced persecution on account of recent European arrivals seeking independence from the British Crown. This type of struggle is manifested in the recent battle over the Dakota Access Pipeline and the sacred nature of native land rights.

Last November, law enforcement in North Dakota used tear gas, sub-freezing cold water, and rubber bullets to diffuse a crowd of 400 protesters at the Dakota Access Pipeline. In June, a federal judge ruled that the Trump administration’s permits authorized to fast-track this pipeline violated the law. U.S. District Judge James Boasberg’s 91-page court opinion orders a more comprehensive environmental review of the pipeline. The legal question looms as to whether the Dakota Access Pipeline will have to cease operations pending this environmental review.

“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing,” said Standing Rock Sioux Chairman Dave Archambault II.

Under the National Environmental Policy Act of 1969 (NEPA), the requirement of Environmental Impact Statements mandates that all agencies of the federal government should include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment a detailed statement by the responsible official. NEPA and participation rights have a precarious history on tribal lands. Combined with existing constitutional duties to tribal nations and tribal treaty obligations, environmental reviews of projects on Indian lands have greater burdens for tribal consultations. Recent legal challenges arise from concerns for environmental justice in the face of lax regulation and environmental degradation.

The Standing Rock Sioux Tribe has been represented by Earthjustice, which filed a lawsuit challenging the U.S. Army Corps of Engineers’ issuance of a permit for the pipeline construction.

The case involving the Dakota Access Pipeline raised business uncertainty and legal issues as well as political concerns for environmental and indigenous rights. The standoff involved the Dakota Access, LLC, which is a subsidiary of Energy Transfer Crude Oil Company, LLC, and the Standing Rock Sioux Tribe of North and South Dakota, a federally recognized Indian tribe. The Standing Rock Indian Reservation is located half a mile upstream from where DAPL’s crude oil pipeline would cross the Missouri River underneath Lake Oahe in North Dakota. The 1,172-mile-long proposed pipeline is expected to transport 470,000 barrels of oil per day across four states.

In 2016, the U.S. Army Corps said it would not approve an easement that would have allowed the proposed Dakota Access Pipeline to cross under Lake Oahe in North Dakota. The Trump administration reversed course.

Interestingly, greater legal protections exist for tribal mineral rights than tribal water and environmental protection rights. When the welfare of the tribes parallels the broader corporate interests of the oil and gas industry, the tribes experience greater property rights protection. Meanwhile, when tribal interests oppose the oil and gas industry the same is not true. I write about these competing interests of natural resources in the current issue of the Vermont Law Review, Trust or Bust: Complications with Tribal Trust Obligations and Environmental Sovereignty.

Here is the abstract:

The Native American framework for environmental protection places a sanctity on nature, which cannot be fully realized under either existing environmental protection laws or through the tribal trust obligations. In the face of these legal deficiencies, tribes and their members can consider resorting to other legal protections to assert tribal environmental sovereignty, including tribal treaty provisions and international human rights law. This Article assesses tribal sovereignty through the lens of energy infrastructure projects on Indian lands, and concludes that updates to the federal right-of-way law chisel away at tribal rights to land, property, and self-determination. A rights-based approach to tribal trust obligations offers heightened protections for these whittled-away rights.

The tribal trust responsibility is a legally enforceable fiduciary obligation for the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to tribes.

University of Colorado law professor Sarah Krakoff observes:

The possibility of an extra-colonial existence was extinguished the moment Europeans washed up—lost but ambitious—on the shores of North America…. [C]ourts must find ways to interpret their sovereignty as consistent with their current status. [What the Supreme Court has done is] institutionalize[] tribal sovereignty within the matrix of American democratic structure through language that alternately affirms tribal political existence into perpetuity and consigns such political existence to the whims of a superior power.

The tribal trust responsibility is a legally enforceable fiduciary obligation for the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to tribes.

Let’s remember that the Declaration of Independence is meant to be an inclusionary pronouncement and not an exclusionary one.

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