One of the issues that has received little attention in the Dakota Access Pipeline (DAPL) debate is whether the federal government exercised its trust responsibility to protect Native American peoples and lands.
According to the federal Bureau of Indian Affairs FAQ:
The federal Indian trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes…
The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources …
This is not a responsibility limited to the BIA, it extends to the entire federal government. So where did this federal trust obligation get exercised in the DAPL debate?
Let’s explore this a little deeper.
True, the pipeline itself does not cross reservation lands. (Surely, Energy Transfer Partners leaders knew they would not get permission to cross reservation lands. So the pipeline route barely skirts the reservation’s northern boundary.) Still, Standing Rock should have a say in the pipeline’s route, as explained in the Jan. 17 Indian Country Media Network article: ‘The Supreme Law of the Land’: Standing Rock and the Dakota Access Pipeline. DAPL crosses lands known as “unceded territory,” lands never ceded by treaty but illegally taken and still under dispute. (See article for details.) Further, it said:
Standing Rock retains water rights from the 1851 Treaty and subsequent treaties. These water rights give the tribe jurisdiction over the Missouri River at the point of DAPL’s proposed crossing.
This issue of federal trust responsibility came into focus for me reading a Feb. 17 opinion piece in Indian Country Media Network headlined: Dakota Access Pipeline Secret Documents: The U.S. ‘Trustee’ is not Trustworthy, by Peter d’Errico, a consulting attorney on indigenous issues.
He notes that the Standing Rock Nation and the public in general never got to see a risk analysis of a DAPL spill — because the federal government made the information a secret, citing security concerns. d’Errico points out the following statement from a memo from Jo-Ellen Darcy, Assistant Secretary of the Army under the Obama Administration. Paragraph 5 states:
Because of security concerns and sensitivities, several documents supporting the environmental assessment were marked confidential and were withheld from the public or representatives and experts from the Standing Rock Sioux Tribe. These documents include a North Dakota Lake Oahe Crossing Spill Model Discussion … the Lake Oahe Risk Analysis Report, and the DAPL Route Comparison and Environmental Justice Considerations Memorandum.
It needs to be remembered that the initial DAPL environmental assessment was done by Energy Transfer Partners, the pipeline builder, with the federal government independently verifying its analysis. So you start with a self-interested party doing the analysis. You have documents withheld from public review and unavailable to be contested. You finally have the Army Corps of Engineers asking for further study, only to have a federal flip-flop after the election — this against the expressed wishes of Standing Rock.
Where did the issue of federal trust responsibilities get raised and exercised? It is not sufficient for the Energy Transfer Partners to say: “We invited them to a meeting.” It was not Standing Rock’s obligation to negotiate on terms set by a private company. It was the federal government’s obligation to exercise its trust responsibilities — the moral obligation to protect treaty rights and lands.
As d’Errico writes:
With the Army’s secret documents and double-talk on Dakota Access Pipeline, Indian country now has yet another example of being fooled and manipulated by the white man.
Comments welcome. Read his full article here.
DAPL Trespass Charges Dropped
A North Dakota judge dropped trespass charges against three water protectors on Friday, half way through their trial, according to a story in the Bismarck Tribune.
According to lawyers in the courtroom, Judge Allan Schmalenberger found the prosecutor had not shown the land was posted or that the protesters had been asked by an authorized person to leave — at least one of which is required to prove criminal trespass.