DAPL Suit Raises Critical Issue: Does U.S. Have Unlimited Power Over Native Nations?

The legal challenges to the Dakota Access Pipeline (DAPL) to date make their arguments within the framework of U.S. regulatory law. They refer to laws regarding historic preservation or environmental protection, but they do not challenge the very framework of the federal Indian system: That the United States has full and complete power over Native lands and peoples.

The legal term for this unfettered control of Native Nations is “plenary power,” and the Yankton Sioux are taking “plenary power” head on in their legal efforts to stop the pipeline.

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Secret DAPL Analysis Withheld from Tribes: Government Memo Spotlights Flawed Process

In the waning days of the Obama administration, the top lawyer for the U.S. Department of Interior wrote about significant flaws in the permitting process for the Dakota Access Pipeline (DAPL) easement under the Missouri River at Lake Oahe. The government had not honored federal trust responsibilities to consult with Native nations. Worse, the government had kept key environmental analysis secret, unavailable for review by Native nations and the general public. Worse yet, some of the analysis was simply inaccurate — and since it was secret it couldn’t be challenged.

The 38-page memo is from Hilary Tompkins, the Department of Interior’s solicitor, to the Secretary. The conclusion is this:

[T]here is ample legal justification for the Corps to exercise its discretion to suspend or revoke the existing Section 408 permit and/or postpone a decision on the proposed easement conditional on additional analysis
and government-to-government consultation concerning the tribal-specific issues discussed in this Memorandum … If the Corps ultimately does decide to authorize the easement, additional tribal consultation is necessary to develop conditions for the authorization that will protect the Tribes’ rights and interests in and around Lake Oahe. (page 35)

Disturbingly, the Dec. 4 memo details problems with the government’s process that until recently have been hidden.

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Did the Federal Government Exercise its “Federal Trust Responsibility” to the Standing Rock Nation? It Seems the Answer is No

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. Continue reading