In Approving Major Crude Oil Pipelines, Consulting with Native Nations is Not Enough; the Goal is Consent

When it comes to crude oil pipeline projects, Indigenous concerns and opposition all too often get marginalized by decision makers.

Such conduct violates the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples, a commitment both the United States and Canada support. The Declaration says that governments should get Indigenous nation’s free, prior and informed consent before “adopting and implementing legislative or administrative measures that may affect them.”

What happens in practice is that the powers-that-be have a “conversation” with Native nations, check the “consultation” box, and think they’re done. That’s not good enough.

The latest example comes from the Standing Rock Sioux Nation in North Dakota. It has found government documents that show how little Indigenous concerns mattered when it came to the Dakota Access Pipeline (DAPL).

Indigenous Women Make Electoral Strides, Face Ongoing Challenges and Abuse

Recent news stories about indigenous women have run the gamut from significant election wins to the ongoing indifference to the horrors of missing and murdered indigenous women.

As you have time during the holiday break, hold these stories in your hearts.

• Native women make electoral strides
• Standing Rock pushed back against voter suppression; Native woman beats State Rep who pushed voter ID law.
• U.S. cities show weak reporting on missing and murdered indigenous women
• Class action lawsuit started over forced sterilization of First Nations women in Saskatchewan

News summaries and story links below.

Hiawatha Homeless Camp Update; Mindful Direct Action Training; Community Reparations Gala, and More

In this blog:

• MPR: Families at homeless encampment weigh staying together, seeking shelter
• Mindful direct action training Nov. 11 at First Universalist in Minneapolis
• Inaugural Community Reparations Gala
• Indian Country Today: Planned Scorsese film version of “Killers of the Flower Moon” raises concerns in Osage County
• Censored News: Standing Rock Water Protectors file Class Action Lawsuit against Morton County, North Dakota and TigerSwan

Standing Rock Update: Iron Eyes Lawyers Allowed to Subpeona Tiger Swan; Some Key Evidence Likely Destroyed

Attorneys for water protectors at the Standing Rock say they had a significant victory in court Wednesday, including the right to key information that the state so far has withheld. They also won the right to depose members of the private security firm Tiger Swan as well as other law enforcement officials.

The legal team also learned that key evidence most likely was destroyed.

Quick check in: Standing Rock hasn’t been in the news recently, as attention has shifted to efforts to stop the Enbridge Line 3 tar sands crude oil pipeline through Minnesota. But water protector cases are still being prosecuted in North Dakota, long after the Dakota Access Pipeline forced its way under the Missouri River near Standing Rock.

The Lakota Peoples Law Project sends out periodic updates on the cases against Chase Iron Eyes and HolyElk Rafferty. Here is the most recent update:

For months, the State of North Dakota has failed to pursue or provide required evidence to the defense team representing Lakota People’s Law Project Lead Counsel Chase Iron Eyes. At a crucial hearing on Tuesday, Apr. 4, Judge Lee Christofferson made several rulings in favor of the defense.

Christofferson ruled that Morton County Sheriff Kyle Kirchmeier and the State of North Dakota must hand over all missing evidence by May 1, and he scolded the deputy state’s attorney for his lack of action. Christofferson also granted defense lawyer Alex Reichert and Lakota People’s Law Project attorneys Daniel Sheehan and Lanny Sinkin the authority to subpoena employees of TigerSwan, the mercenary security firm hired by Dakota Access pipeline parent company Energy Transfer Partners. Our defense team alleges that TigerSwan ran a targeted, racist, no-holds-barred surveillance and smear campaign against Chase and other water protectors.

The defense team wants to show what it says was illegal collusion between industry, law enforcement, and TigerSwan. Click on the link above and you can watch a 36-minute video of defense attorneys talking about recent developments. The highlights follow.

Congress Needs to Investigate Corporate Influence on Law Enforcement’s DAPL Response

An Open Letter to Sen. Amy Klobuchar, Sen. Al Franken, and Rep. Keith Ellison:

Regardless of your view on the Dakota Access Pipeline (DAPL), I hope we all can agree that the standoff and violence that occurred near Standing Rock should never have happened. We must learn from this tragic event.

In that regard, I ask you to investigate the actions of the National Sheriffs’ Association and  its role in doing opposition research against water protectors and its ties and coordination with TigerSwan, the private security firm hired by Energy Transfer Partners to protect DAPL. This should include a review of the rationale and appropriateness of the law enforcement tactics used.

Screen capture of 2016 video showing the heavily militarized response to water protectors.

This is a national issue. Law enforcement  from several states — including Minnesota — were deployed to Morton County, North Dakota through mutual assistance agreements. What are the lessons these law enforcement agents will take back to their home communities?

This should be of particular to concern to those of us in Minnesota. Canadian company Enbridge Line 3 has proposed expanding a tar sands crude pipeline through the state, called Line 3. It would run from Alberta to Superior, Wisconsin, and includes 337 miles of pipeline through Minnesota. It would cross the Mississippi River, twice, and cross many wild rice lakes. This project most likely will provoke a similar resistance movement as happened in North Dakota. (See MPR story: Minn. oil pipeline fight stokes threats, fears of Standing Rock.)

How will we respond if and when that happens?

We need a thorough review of law enforcement’s response at Standing Rock so that we don’t repeat the mistakes that were made.

DAPL Court Ruling a Mixed Bag: Reveals Deeply Flawed Environmental Justice Review, but Weak on Treaty Rights

A recent court ruling on the Dakota Access Pipeline (DAPL) is stunning for what is reveals about how the U.S. Army Corps of Engineers conducted its so called “environmental analysis” of the project.

The June 14 decision by U.S. District Court Judge James Boasberg will require the Corps to go back and do the analysis correctly. He left open the possibility that the court could shut down the pipeline until these issues are resolved. That decision will come at a later hearing.

The court ruling says the Corps analysis “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice.” Read more deeply into the decision, and it raises questions about whether the Corps is simply oblivious to the concept of environment justice or whether its staff willfully slanted the review to get the outcome it wanted.

(In a related matter, the Trump administration has proposed eliminating the Environmental Justice Program altogether and making deep cuts to other civil rights services. See this CNN story.)

According to the court decision on DAPL: “The purpose of an environmental justice analysis is to determine whether a project will have a disproportionately adverse effect on minority and low income populations.”

The problem with the Corps’ environmental justice analysis boils down to this: It drew such a tiny circle defining the project’s impact area that it excluded the Standing Rock Nation from consideration.

That’s right. The Corps’ environmental justice analysis only looked at the impact on a predominantly white community mostly upstream from where DAPL crossed under Lake Oahe. It did not consider the impact on the Lakota people of the Standing Rock Nation just downstream from the crossing — the community that would be impacted by any spill.

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.