By Faith Phillips

“Then she told us how times were tough and about how she was thinking about

Bumming a ride back to from where she started

But ya know, she changed the subject every time money came up

She said, ‘Welcome to the land of the living dead’

You could tell she was so broken hearted

She said, ‘Even the swap meets around here are getting pretty corrupt.’ ”

~Brownsville Girl, Bob Dylan

Water Protectors.

A family of four, soon to be five, runs in and out of a flimsy tent on a grassy North Dakota plain. The eldest daughter, Josephine, age 4, wears a pink tutu and wraps herself in a sleeping bag decorated with characters from Frozen, the popular Disney movie franchise. The youngest girl, Charlie, is two. She is a determined force. The entire family remains vigilant to safely contain Charlie’s energy. Their quiet mother manages the camp with an air of humble authority. She wears her waist-length hair tied back at her neck. The father enjoys discussion with relatives when they happen by. He is interrupted here and there to change a diaper and to occasionally yell, “CHARLIE!” when his youngest seizes an opportunity to bolt. The family gathers around a small fire in the evening when Charlie’s energy diminishes at last. Josephine sits on her father’s lap, satisfied to have earned his sole attention. She tosses her head back and laughs, delighted with each joke he tells.

This family’s camping experience differs somewhat from the typical American one. They are surrounded on all sides by a thousand others, gathered together in a field bordering the Standing Rock Sioux Reservation. They speak an ancient language with each other, but politely switch to English in the presence of a non-speaker. Perhaps the most telling detail of this story is that the family can’t say exactly how long they’ve been camped here. Neither do they know how long they will stay, for they have no expectation to leave. This Lakota family of the Sioux tribe, along with thousands more Native Americans, constitute an unprecedented gathering determined to protect the main source of water for their tribe and for millions of other Americans downstream.

A Primer.

The encampment began with a handful of tents thrown up in early April. It began as a movement by members of the Standing Rock Sioux Tribe (“SRST”) to demonstrate their opposition to the proposed Dakota Access Pipeline (“DAPL”), a project set to pump nearly 450,000 barrels of crude oil over a route that would plow through land considered sacred by the SRST. The pipeline would be buried beneath the Missouri River at a point just 1/2 mile from the SRST reservation. DAPL’s parent company, Energy Transfer Partners (“ETP”) acquired permits for construction of the pipeline required by federal, state and local law. One of the applicable regulations is the National Historic Preservation Act (“NHPA”). Section 106 of the NHPA requires that the Army Corps of Engineers (“The Corps”) engage in an elaborate consultation process with tribes on projects that stand to affect culturally important locations, as well as potential effects on tribal water supplies (Westney). The NHPA process does not grant veto power to tribes at any point of the consultation/evaluation process (Epstein). The Corp issued a permit for DAPL to proceed on July 26, 2016. In a September 9 decision a federal District Court denied an injunction to stop further work at the site, after which the Department of Justice intervened to halt construction in a specified area of federal land. The land in question consists of both federal and private holdings, some of which was included in the broken Treaties of Fort Laramie 1851 and 1868 (Nienaber [see bibliography after article for parenthetical citations]).

SRST Chairman David Archimbault II stated in an interview with PBS NewsHour that during the review proceedings conducted by The Corp, “They never heard us. It was just a process that kept moving forward because of economic interest. Money. The interest of greed.” The SRST in effect boycotted the permitting process, with many members choosing instead to engage in an extrajudicial process: the protest camp (Epstein). The tribe entered late into the legal battle in an effort to halt the pipeline’s construction. Chief among the tribe’s arguments: the survey of the land and consultations with the tribe were woefully insufficient. In the meantime, ETP proceeded with construction of the pipeline despite pending litigation, not only in North Dakota, but also in several states downline. The pipeline is 60% complete at present. ETP argued that pipeline transfer is the safest method for the transport of petroleum products, as trains and trucks are much more likely to spill. The obvious point remains that when pipeline leaks do occur, they cause substantially more damage than an overturned tanker. Since 1995 more than 2,000 significant accidents occurred on oil and gas pipelines, causing $3 billion in property damage (Woodruff).

Water Protectors.

Joesphine and Charlie ride in a double stroller and wait in line for a plate of food. Their father pays careful attention to an elder standing with a microphone in the center of the assemblage. The elder tells the crowd that the seven nations that comprise the Sioux have joined together, along with hundreds of other tribes represented in the camp. He mentions a great black snake to the gathered assembly and many nod in recognition. This is a reference to prophecies dating back to the 1890s from Sioux leader Black Elk, who stated after a series of dreams that in seven generations the seven nations would unite to defeat a great black snake that threatened the world, called the zuzeca (Woolf). It is a well known story within the tribes. Among the crowd stands members of the seventh generation of Sioux since Black Elk’s prophecy. They believe they have met their destiny here in the struggle to turn away the pipeline.

History.

Some Americans expressed outrage with the Justice Department’s intervention in the construction of the pipeline, arguing that the oil company should proceed because the proper legal process for permitting had been met. Those who demand justice and rule of law in defense of ETP and the pipeline place themselves in danger of a precarious position however, as the American legal system with regards this tribe is historically dubious at best.

The Sioux have much historical legal precedent to justify suspicion of any federal process that pertains to the land. The U.S. government has a demonstrated historical record of multiple treaty violations, in a pattern indicative of systemic intent. The 1868 Treaty of Fort Laramie was entered into under the auspices of reaching peace. Sioux members agreed to settle within the Black Hills, a sacred location in their culture. But after gold was discovered by an expeditionary party led by General Custer, the U.S. Army was ordered to move against the Sioux. The government confiscated the land in 1877. The land claim remains unresolved to this day. Through this ongoing legal fight, Natives living in the poorest county in America have repeatedly refused over a hundred million dollars, holding out instead for the return of their sacred hills (Egan).

Evaluation.

What possible solutions exist for a citizenry faced with a demonstrated record of injustice on the part of the government and a system that is unashamedly stacked against one party? Reliance upon the interim review process provides little promise and a bleak outlook. Though the action taken by the Justice Department allows for a minuscule sense of victory among the SRST, in effect it guarantees absolutely nothing. To sit back and rely on meaningful action from the government on an ultimate resolution that favors the tribe would amount to an affront to the sacrifice of all those Native families gathered for months now to protect the water and future generations.

A possible approach comes from an examination of the very theories upon which this government was organized. The Declaration of Independence was heavily influenced by the Lockeian concept of Social Contract Theory. The theory is amenable for debate on both its virtues and evils, but for present purposes let us simply state that Social Contract is a theory upon which the justification of our government rests. It goes something like this: by remaining in the territory controlled by the government, people give consent to join that society and be governed by its government. We gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some freedoms to do so. The social contract and the political order it creates are simply the means toward an end – the benefit of the individuals involved – and legitimate only to the extent that they fulfill their part of the agreement. Citizens can withdraw their obligation to obey or change the leadership when the government fails to secure their natural rights (Wikipedia).

And so we evaluate the plight of the Standing Rock Sioux Tribe under the theory upon which this government obliges itself. Let us first consider the political machinations within which SRST is expected to seek justice. In 2009 alone, oil and gas companies spent $154 million dollars on lobbying, setting a new record for the industry (Mulkern). For every $1 the oil industry spends on campaign contributions and lobbying in D.C., it gets back $119 in subsidies. The fossil fuel industry spent $42,373,561 on contributions to the 113th Congress. In 2013 & 2014 the fossil fuel industry received $41,840,275,998 (that’s 41 BILLION) in federal production and exploration subsidies (PriceofOil.org). Neither of the two major party presidential candidates have spoken publicly of the SRST and the DAPL issue, much less indicated a policy position on the issue.

The oil company acts as oil companies do. This is its raison d’être, to take and continue to take. Even in the days leading up to the ruling in federal court, ETP had the audacity to continue bulldozing through sites that had been identified in court documents just days before as containing ancient burials and other significant cultural artifacts (SRST). That is surely the kind of audacity and flippant regard for the law only taken by an entity absolutely self-assured of ultimate victory. A public outcry will have to grow on a national level in order to effect real change, along with a boycott of businesses associated with ETP and its operating partners, the Enbridge Corporation and Marathon Oil. Rumors abound that investors in the project are already souring on the deal (Westney).

Perhaps the most effective hope rests with the initial response from the Standing Rock tribe itself, when the members stood their ground and made a public plea for help. The public must continue to demand a national awakening from our fellows. As parties to this “Great Experiment” it is incumbent upon us to push failures out into the light when we witness them. It is the responsibility of those parties to the “social contract” to see that justice is accomplished and unfortunately that means there will never be a day to rest. It serves the interest of governance and our own social stability to call for a remedy when one party has demonstrably and grossly breached its contractual duties. The generational trauma inflicted on this particular segment of society must be brought to an immediate and decided halt. Ultimately, that means ETP will have to find a different way. It shouldn’t be too difficult, after all. The oil company only chose this route after receiving the ire of residents in Bismarck, North Dakota, a largely non-native city that, interestingly enough, became concerned for the safety of their water source.

Water Protectors.

A Sioux leader addresses the main camp. He says, “We have to act, but we have to think about those actions and what they will lead to. Some people don’t remember the past. People have to continue to be educated, because we forget.”

The father of the little Sioux family expresses concern for the outcome of the SRST struggle against the pipeline. Winter is coming. He says he just wants something different for his daughters than what previous generations have endured. They won’t leave. He shoves his hand in his pockets and toes a patch of creeping thistle with his shoe. The Lakota family remains hopeful for the arrival of their first-born son. The mother rests her hand on her stomach. She has recently battled an illness and says she doubts her boy will wait much longer to arrive. They have already decided on the child’s name. He will be called Sakowin. It is the Lakota word for the number seven.

About the author: Faith Phillips is a granddaughter of the esteemed Cherokee Tribal Council Member Harold “Jiggs” Phillips.

Bibliography

Angerman, Brad.“Standing Rock Sioux Tribe Condemns Destruction and desecration of burial grounds by Energy Transfer Partners.” Press Release, Standing Rock Sioux Tribe. 3 Sep 2016. Web.

Egan, Timothy. “The Nation; Mending a Trail of Broken Treaties.” The New York Times. 25 June 00. Web.

Epstein, Richard. “Why the DOJ Order to Shut Down Construction On The DAPL Pipeline is Legally Indefensible.” Forbes. 14 Sep 2016. Web.

Mulkern, Anne. “Oil and Gas Interests Set Spending Record for Lobbying in 2009” The New York Times. 2 Feb 2010. Web.

Neinaber, Georgianne. “DAPL Pipeline Interests Try Outrageous Fait Accompli and Destroy Ancient Sites.” Huffington Post. 4 Sep 2016. Web.

Westney, Andrew. “A Cheat Sheet To The Sioux Fight To Stop The Dakota Pipeline.” law360.com. 26 Aug 2016. Web.

Woodruff, Judy. “Tribes Across North America Converge at Standing Rock, hoping to be heard.” PBS NewsHour. 16 Sep 16. Web.

Woolf, Nicky. “North Dakota Oil Pipeline Protestors Stand Their Ground.” The Guardian. 29 Aug 2016. Web.