Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

The Dakota Access Pipeline is a 1,172 mile project to create a 30-inch diameter pipeline[1] across North Dakota, South Dakota, Iowa, and Illinois[2] and is projected to transport half a million barrels of crude oil per day.[3] The Dakota Access Pipeline faces the same environmental concerns as the Keystone Pipeline.[4] While proponents of pipelines boast that pipeline spills occur less regularly than transporting oil by rail or truck, the effects of pipeline spills are often more catastrophic.[5] The controversy surrounding the Dakota Access Pipeline has gained in attention since summer of 2016 when the Standing Rock Sioux tribe filed a complaint in federal district court in Washington D.C. on July 27.[6] The complaint was against the Army Corps of Engineers, the federal agency that approved the pipeline, and then contractors had an injunction preventing them from working as the court deliberated.[7]

Most of the national attention surrounding the Dakota Access Pipeline focuses on the controversy of the pipeline’s potential environmental consequences across the Midwest, thereby minimizing coverage of the pipeline’s encroachment upon Native American tribes’ sovereignty. On September 9, the Court rejected Standing Rock’s legal claims, but agreed with the tribe that the Army Corps of Engineers had improper process violating the Clean Water Act and National Historic Protection Act when it issued permits to construct the pipeline. The decision on September 9 temporarily ended the injunction preventing construction in this area until the Obama Administration ordered the Army Corps to pause construction until it could revisit the controversial area. [8] Given this extra time, it is necessary for the Army Corps and Dakota Access, a private energy company developing the pipeline, to better consider the cultural impact of this project.

Following the environmental controversy surrounding the Keystone Pipeline a couple years prior, the public’s immediate response was focusing on the Dakota Access Pipeline’s environmental impact rather than the encroachment on Native American tribes’ sovereignty. That is not to say the environmental impacts of the Dakota Access Pipeline are not significant. For instance, one of the Standing Rock Sioux tribe’s concerns came from the possibility of the pipeline leaking and contaminating the Missouri River. [9] The Missouri River is Standing Rock’s only source of water. [10] However, the tribe’s main claim issue is the pipeline being a threat to their tribe’s history and culture.

The Standing Rock Sioux tribe views land around the Missouri River, which is not included as part of the tribe’s reservation, as part of their ancestral lands where their ancestors hunted, fished, and were buried in the past.[11] The tribe does not claim a right over this land, understanding that American courts respect the “Discovery Doctrine,” which essentially recognizes a European Christian’s claim over land if they were the first to document ownership. Courts, however, also recognize that these colonial land claims are a painful part of our nation’s past and grant a right to be consulted. This right to be consulted requires a federal agency undertaking a construction project to consult with local Native nations and tribes about the presence of nearby scared sites.[12] This consultation is not meant to pressure tribes into granting approval with little dialogue between the tribe and federal agency but rather a “government-to-government” type of discussion. [13] The tribe claims that it was not part of the historical surveying process until the very end instead of the custom in government-to-government negotiations, which would have the tribe join as a partner in surveying the land. Despite the disputed area’s distance from reservation land, federal agency must respect the right of consultation. [14]

Federal agencies must make a reasonable search to see if any tribes have an interest in a disputed territory. Tim Mentz, a Standing Rock Sioux member and archeologist, reviewed the pipeline’s survey work and found that Dakota Access relied on a survey of the area from 1985 from than conduct an independent survey. [15] Not only does it appear that the Dakota Access failed to make a reliable survey, they also failed to reasonably search to see if any tribe had an interest in the land. [16]

The potential loss of culturally significant sites shows the necessity in diligently inspecting and researching the land prior to any pipeline construction. As a result of the previously mentioned faulty survey, the Standing Rock Sioux revealed that the pipeline’s plans transverse over major archeological sites. [17] The tribe points to one site, for instance, a stone feature depicting the Big Dipper constellation, which signifies that a respected leader is buried in the vicinity. [18] Mentz claims that Dakota Access or Army Corps surveyors would have had to literally walk over the stone archeological site had they conducted the survey. [19] There is a serious risk of losing these culturally valuable sites; hours after Standing Rock Sioux’s legal team presented evidence of these archeological sites to the court, the Dakota Access company started constructing on the same sites. [20]

It seems odd that protecting culturally important sites and the environment are lumped together when they have different considerations and means of redressability. In the Frequently Asked Questions page on the Dakota Access website, the company has a section entitled “What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?” [21] The answer to this question discusses how they conducted surveys to review the environmental impact and their attempts to reduce their ecological footprint but never mentioned how they would protect archeological sites. [22] However, there is a different consideration needed for investigating potential conflicts with cultural sites compared to the environment. The wetlands can be studied by traditional surveys but you cannot know about an area’s significance to a particular group if you are not meeting with that group throughout the process.

Further care should be taken with cultural areas because there is no redressability following the destruction of a culturally priceless site. As devastating as environmental damage can be, that damage can be mitigated or cured. For example, if the Missouri River were to flood, the Standing Rock Sioux still could have water shipped to them. Despite the inconvenience, the contaminated water can be replaced, but a destroyed burial ground centuries old cannot. Once an archeological site is destroyed it is lost forever. Even if the Army Corps or Dakota Access were to reimburse the Standing Rock Sioux for any destroyed site, it is unlikely the tribe would accept the payment. [23] The Sioux have continuously declined payment from the U.S. government in compensation for the improper taking of the Black Hills of South Dakota. [24] The tribe demands to take possession or co-possession of the Black Hills rather than accept the payment, which is now worth over a billion dollars off of earned interest. [25] Given these diverging considerations, it is dangerous to think of the debate of the Dakota Access Pipeline as only an environmental concern without examining the potential loss of priceless cultural artifacts.

 

[1] Devashree Saha, Five Things to Know About the North Dakota Access Pipeline Debate, Brookings (Sep. 6, 2016), https://www.brookings.edu/blog/the-avenue/2016/09/14/five-things-to-know-about-the-north-dakota-access-pipeline-debate/

[2] Jessica McBride, Dakota Access Pipeline Maps & Routes: Where Would It Go? Heavy (Sep. 6, 2016), http://heavy.com/news/2016/09/dakota-access-pipeline-protests-video-photos-dogs-map-dapl-routes-north-oil-mace-standing-rock-sioux-native-american-indian-energy-transfer-kelcy-warren-bakken-lawsuit/.

[3] Saha, supra note 1.

[4] Robinson Meyer, The Legal Case for Blocking the Dakota Access Pipeline, The Atlantic (Sep. 9, 2016), http://www.theatlantic.com/technology/archive/2016/09/dapl-dakota-sitting-rock-sioux/499178/.

[5] Jack Healy, North Dakota Pipeline Battle: Who’s Fighting and Why, N. Y. Times (Aug. 26, 2016), http://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html.

[6] Standing Rock Litigation, Earth Justice Initiative, http://earthjustice.org/features/faq-standing-rock-litigation (last visited Oct. 30, 2016).

[7] Id.

[8] Saha, supra note 1.

[9] Meyer, supra note 4.

[10] Id.

[11] Healy, supra note 5.

[12] Meyer, supra note 4.

[13] Id.

[14] Saha, supra note 1.

[15] Healy, supra note 5.

[16] Saha, supra note 1.

[17] Meyer, supra note 4.

[18] Id.

[19] Id.

[20] Id.

[21] Frequently Asked Questions, What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?, Dakota Access (last visited Oct. 30, 2016) http://www.daplpipelinefacts.com/resources/faq.html.

[22] Meyer, supra note 4.

[23] Maria Streshinski, Saying No To $1 Billion, Atlantic (Mar. 2011), http://www.theatlantic.com/magazine/archive/2011/03/saying-no-to-1-billion/308380/.

[24] Id.

[25] Id.

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