In a bid to ease tensions over the construction of the Dakota Access Pipeline, U.S. President Barack Obama announced on November 1 that the Army Corp of Engineers is considering alternate routes for 1,172-mile pipeline, which was designed to bring half a million gallons of crude from North Dakota’s Bakken fields across four states to Illinois. The pipeline’s path is set to cross the Missouri river within a mile of the Standing Rock Sioux Reservation. In his statement, Obama attempted to defuse the standoff between the pipeline company and its opponents - the Standing Rock Sioux Tribe and its growing ranks of allies, saying “we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.”

Obama’s recognition that the pipeline should be reconsidered is laudable, if long overdue. But rerouting the pipeline is no easy fix. Centuries of dispossession, colonization and annihilation have heightened the Standing Rock Sioux Tribe’s determination to protect its sovereignty. They believe that much of the land the pipeline traverses, was guaranteed to the Tribe by the Treaties of Fort Laramie of 1851 and 1868, and was wrongfully wrested away thereafter, markedly diminishing their territory. In other words, moving the pipeline a few miles further from the reservation boundaries but still within unceded Sioux treaty land will not resolve the conflict. Moreover, under the colonial legal paradigm, federal law ensures that Tribe’s have the right to meaningful consultation over projects that affect their ancestral lands, not merely those contained within their Reservations. International law requires the Tribe’s free, prior and informed consent to projects that affect them.  And even if a revised path circumvented treaty land altogether, the pipeline would still likely cross the Missouri River and imperil the Reservation’s drinking (and that of millions of others downstream) while further entrenching instead of easing the nation’s reliance on fossil fuels.

The Standing Rock Sioux Tribe has long opposed the pipeline. Pipeline foes started a prayer camp in April, which has now spread across the Cannon Ball River and attracted thousands of supporters, including from hundreds of other tribes whose flags line the road to the main encampment. After Standing Rock’s objections went unheeded, it sued the federal government in July, claiming that the Army Corp did not properly consult it about the pipeline, but the tribe was rebuffed in two requests to enjoin the construction. As the court case unfolded, in September, the Obama administration made a surprise announcement that it was reviewing the permit to drill under the Missouri River and requested that Dakota Access pause construction near the Reservation in the interim.  The company roundly rejected that request and continued with the build. Now, virtually they only thing left to do in North Dakota is drill under the river.

Dakota Access’ insistence on continued construction has provoked conflict with the Tribe and its supporters, who are determined to protect sacred sites in the pipeline’s path and the water they believe it threatens. Peaceful “water protectors,” as they prefer to be called, have gathered in prayer, only to be met by increasingly militarized law enforcement bodies and criminalization. North Dakota governor Jack Dalrymple has declared a state of emergency, but he is largely responsible for escalating the crisis thanks to aggressive policing tactics that include the widespread violations of civil, human, and indigenous rights.

For example, on October 22, water protectors holding a prayer ceremony were encircled by law enforcement who deployed mace, and arrested more than 120 people. The next day, water protectors formed a new frontline camp directly in the path of the pipeline, near where Dakota Access security forces had previously unleashed dogs on water protectors. That conflict was instigated by what water protectors see as the company’s decision to jump forward ten miles of construction to bulldoze sacred sites identified by a tribal expert in a court filing a day earlier. In a brutal roundup of 141 people on October 27, heavily fortified law enforcement officials ripped Native American elders from prayer circles, and used mace, pepper spray, sound cannons, flash bang grenades, rubber bullets, and bean bag guns. Snipers stood at the ready in the surrounding hills, and a plane and helicopter buzzed overhead. The ferocious crackdown on unarmed protestors elicited widespread outrage, which increased pressure on the Obama administration to step in to calm the conflict. Meanwhile, the Tribe’s supporters have demanded a Department of Justice inquiry into police misconduct.

Arrestees were subjected to humiliating strip searches, labeled with numbers on their forearms and held in hastily constructed and overcrowded holding cells reminiscent of dog kennels. Authorities confiscated, desecrated, and lost sacred and ceremonial items, inflicting spiritual wounds that were less visible but no less damaging than the physical ones. Even so, the water protectors remain determined to stand their ground through peaceful prayer. 

Dakota Access still claims that the tribe’s water safety concerns are unfounded, but ample evidence justifies their concerns: there were 220 pipeline spills this year alone. And that isn’t the only worry: if the planet is to remain habitable, the Tribe and many others believe that humanity’s reliance on fossil fuels must be urgently curbed. 

Obama has touted his commitment to advancing the rights and interests of Native Americans, recognizing the shameful treatment of the nation’s first inhabitants, a destructive historical legacy that continues today. Although his administration has made measurable improvements, including settling lawsuits, formalizing lines of communication, and helping Tribes consolidate scattered territory, he has not gone far enough. Obama will soon be a lame duck, and should not leave it to his successor to protect the Tribe’s rights, especially since incoming president Donald Trump has financial interests in Energy Transfer Partners, the pipeline developer, and its CEO Kelcy Warren has contributed more than a hundred thousand dollars to his campaign, according to the Guardian newspaper. At a tribal conference at the White House this fall, Obama said “I’ve heard you, I have seen you, and I hope I’ve done right by you.” If the outgoing president really wants to do the right thing in this emblematic case, he is running out of time.

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  • LAUREN CARASIK is Clinical Professor of Law and Director of the International Human Rights Clinic at Western New England University School of Law. She has traveled to Standing Rock to provide legal support for the water protectors.
  • More By Lauren Carasik