Protesters stand on heavy machinery after halting work on the Energy Transfer Partners Dakota Access oil pipeline near the Standing Rock Sioux reservation near Cannon Ball, North Dakota, September 6, 2016.
Andrew Cullen / Reuters

In North Dakota, the Cannonball River joins the Missouri River near the grassy plains of the Standing Rock Sioux Reservation. Since April, this juncture has become an epicenter of indigenous resistance to the United States’ powerful energy sector. The focus of the protest is the Dakota Access Pipeline, a planned 1,134-mile channel that would bring roughly half a million gallons a day of crude oil from North Dakota’s Bakken oil field to Illinois. But the Standing Rock Sioux tribe is deeply worried that the $3.7 billion project of Dakota Access, a subsidiary of Texas-based Energy Transfer Partners, which would pass under the Missouri River a half mile from the reservation, would not only contaminate its lone source of drinking water but also destroy sacred cultural and tribal burial sites located along the pipeline’s path.

In April, a handful of the tribe’s water protectors, as the activists prefer to be called, gathered for the first time to pray at the Sacred Stone Camp along the water’s edge. The encampment’s numbers have since swelled to the thousands, spilling over to a larger camp across the river, uniting tribes that were once bitter rivals, and galvanizing environmental and climate activists. (The road leading into the main camp is now lined with the flags of hundreds of Native American tribes.) In short, this is no ordinary uprising. It is the largest Native American gathering in decades, and it has drawn support from as far away as Ecuador.

The legal dispute centers on the permits that the government gave Dakota Access for certain stretches of the pipeline that the tribe believes would affect its water source and sacred cultural sites. But the political fight involves issues such as tribal sovereignty and self-determination, freedom of expression and assembly, tensions between corporate, human, and environmental rights, and preserving indigenous ways of life. History looms large—resistance to the pipeline is deeply influenced by the centuries of displacement, forced assimilation, marginalization, and decimation that have exacted a devastating intergenerational toll on Native Americans, and by the struggle they still face in securing the future for their children.

The tribe traces its grievances back to violations of the Treaties of Fort Laramie of 1851 and 1868, which held that the Great Sioux Reservation would be “set apart for the absolute and undisturbed use and occupation of the Indians.” But the Great Sioux War of 1868-69 and the threat of starvation forced the Sioux to renegotiate the terms and relinquish large swaths of territory, including land coveted by non-natives who believed that the Black Hills of South Dakota contained gold. Congress stripped the Great Sioux Reservation of additional territory in 1889. And the Standing Rock Sioux’s land base was eroded again in 1958 when the U.S. Army Corps of Engineers took 56,000 acres for the creation of the Oahe Dam and lake, submerging homes and resources that the tribe relied on to survive. As a result, the tribe believes that much of the ancestral land in the pipeline’s path is rightfully theirs.

To acknowledge and remedy past abuses, the federal government adopted a number of consultation requirements that were intended to involve the tribes in decisions about projects that affect their cultural and sacred sites, including those on land from which they were historically dislocated. Some skeptics argued the consultation requirements were simply a way to legitimize ongoing incursions on tribal sovereignty.

If the goal is meaningful consultation, that system is failing. After the Army Corps gave the contested segments of the pipeline the go-ahead under a fast track option, the tribe, represented by the nonprofit environmental law firm Earthjustice, filed suit against the agency in the District Court for the District of Colombia in July. Among the tribe’s complaints was that the Army Corps approved construction permits without properly consulting them, in violation of the Clean Water Act, the National Historic Protection Act, and the National Environmental Policy Act.

The Army Corps had concluded that even though the pipeline would pass under the Missouri River within a half mile of the Standing Rock reservation and traverse ancestral land, there would be “no direct or indirect impacts” on the tribe. The Army Corps also claimed that it gave the tribe ample opportunity to provide input. But the Standing Rock Sioux pointed out that its feedback was requested so late in the game that the route had all but been determined, and that the scope of review was so narrow as to render it meaningless—merely a box for the government to check instead of the required nation-to-nation consultation that had been promised.

The tribe was not alone in its criticisms. The Army Corps issued the permit against the objections of other federal agencies that questioned the consultation process. “We note that crossings of the Missouri River have the potential to affect the primary source of drinking water for much of North Dakota, South Dakota, and Tribal nations,” wrote Philip Strobel, the National Environmental Policy Act regional compliance director, in a March 11 letter to the Army Corps. Yet the Army Corps did not conduct a formal Environmental Impact Assessment or issue an Environmental Impact Statement. The U.S. Department of the Interior and the Advisory Council on Historic Preservation also expressed concerns about the process. 

Flags from the dozens of tribes that have offered support to the Standing Rock Sioux in Cannon Ball, North Dakota, September 6, 2016.
Andrew Cullen / Reuters

Throughout the summer, the tribe continued to pursue legal remedies. On August 4, it moved the court to issue an injunction to halt construction, but the district court judge denied the request on September 9, saying that the tribe had not met its burden of proof—either showing that the Army Corps had violated the law or that the tribe would face injury without injunctive relief. But in an unexpected and swift move, on that same day, the Department of Army, the Department of the Interior, and the Department of Justice issued a joint statement announcing that the Army Corps would not be authorizing construction at the contested site. They asked Dakota Access to voluntarily pause any work within 20 miles of the area until the Army Corps reconsidered its prior determination on whether the project complied with the law. It is unclear how long the review process will take.

Even more surprising, the departments indicated that they would examine not only how agencies consult with tribal nations about infrastructure projects affecting their territories but also reevaluate the entire legal framework governing this process—a notable victory for vulnerable and historically marginalized populations. But prospective reform will not resolve this conflict or dampen the movement it has inspired.

On September 12, the tribe requested an injunction pending appeal. Four days later, the District of Colombia Appeals Court issued a temporary injunction and scheduled a hearing for October 5. Meanwhile, the litigation continues to languish in district court.

In addition to domestic laws, international human rights principles require the United States to respect, protect, and fulfill the human rights of indigenous people. In 2010, U.S. President Barack Obama endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which obligates the government to obtain the free, prior, and informed consent for projects that affect indigenous communities, as well as enshrining a panoply of other rights related to the conflict.

Recalling those rights, David Archambault II, the chair of Standing Rock, appealed to the UN Human Rights Council on September 20, saying that “courts have failed to protect our sovereign rights, our sacred places and our water,” and asked the international body to “call upon the parties to halt the pipeline, and to protect the environment, our nation’s future, our culture and our way of life.” Two days later, the United Nations special rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, called on Washington to do just that, stating that the project “poses a significant risk to the drinking water of the Standing Rock Sioux tribe and threatens to destroy their burial grounds and sacred sites.” Her statement was endorsed by seven other UN experts.

The ongoing conflict between the Sioux tribes and Dakota Access was largely off the media’s radar until images surfaced on September 4 of private security guards unleashing dogs and using pepper spray against water protectors who were upset that the company was bulldozing an area identified by its tribal expert, only a day earlier in a court filing, as containing graves and sacred sites. Since then, a number of experts have defended the tribe. For example, in a letter spearheaded by the Natural History Museum, more than 1,200 archaeologists, historians, and museum directors “call[ed] on the federal government to abide by its laws and to conduct a thorough environmental impact statement and cultural resources survey on the pipeline’s route, with proper consultation with the Standing Rock Sioux tribe.”

Beyond sovereignty issues, environmental impact is a concern. Once completed, the pipeline would be transferred to Sunoco, a company with a less than exemplary safety record. According to Reuters, it “spills crude more often than any of its competitors with more than 200 leaks since 2010,” and it has “leaked crude from onshore pipelines at least 203 times over the last six years.” Sunoco claimed that it has taken remedial measures, but the tribe believes a spill is all but inevitable. Current safeguards to detect pipeline leaks are unreliable, according to a separate Reuters investigation.

Scientists have also expressed concern for the broader environmental impacts of the pipeline. Nearly 100 scientists recently signed an open letter expressing their concern about “the potential local and regional impacts from the [Dakota Access pipeline] which is symptomatic of the United States’ continued dependence on fossil fuels in the face of predicted broad-scale social and ecological impacts from global climate change.”

The dispute also raises issues of environmental injustice—the disproportionate impact of potential environmental hazards in or near disempowered communities, which often lack the political capital to mount effective resistance. The Standing Rock tribe is among the nation’s poorest—41 percent of its members live below the poverty level. The pipeline plan was rerouted in 2014 from Bismarck, a wealthier and predominantly white area, in part because of concerns about the risk it would pose to the city’s municipal water supply. 

The saga for the Standing Rock Sioux continues to unfold. On September 22, Dakota Access purchased the 7,000-acre Cannonball Ranch, which includes the burial grounds the tribe says were desecrated by the company’s bulldozers in the action that precipitated the clash on September 3. The ranch owners claimed that they sold the property to Dakota Access out of concern over liability. Sarah Vogel, a North Dakota attorney who previously headed the State Agriculture Department, said that the sale violates the state’s anti-corporate farming law, which, with narrow exceptions, restricts corporations from owning farmland. On September 28, North Dakota Attorney General Wayne Stenehjem gave Dakota Access 30 days to explain how it intends to use the land.

Critics believe that the company purchased the property to hinder the tribe’s ability to document the cultural significance of the land since the cultural surveys commissioned by Dakota Access were conducted by non-tribal consultants and without tribal input. A tribal expert had previously conducted a limited survey of the site but was denied permission to reenter by the ranch owners.

To date, more than 80 people have been arrested in North Dakota for peacefully opposing the pipeline, whose construction is continuing at various points along the route. Many more have vowed to continue the resistance: The water protectors encamped at Standing Rock are now preparing to hunker down through North Dakota’s brutal winter. As they see it, there is little choice. As the Lakota saying goes, “Water is life.”

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