Summary Overview

In this document, a coalition of Native American and environmental activists petitioned the U.S. Army Corps of Engineers to reevaluate the potential environmental risks and impact of the Dakota Access Pipeline (DAPL), a multi-state petroleum pipeline controversially passing under the Missouri River just upstream of the Lake Oahe at the border of South and North Dakota. Further, the letter alleges that the company responsible for construction of the pipeline purposefully destroyed recent archaeological discoveries suggesting a Native American burial ground in the area set aside for construction of the pipeline.

Defining Moment

The Dakota Access Pipeline (DAPL) controversy, also called the Standing Rock Sioux protest, was a combined Indigenous rights/environmental protest in opposition to the DAPL construction project near lands occupied by the Standing Rock Sioux tribe. From a conservation/environmentalist perspective, the protest movement could be seen as part of a broader effort to limit petroleum development in general and fracking or oil shale harvesting in particular. Further, environmental and human rights activists were concerned that the proposed path for the pipeline posed a danger to the drinking water used by the Standing Rock Sioux population Finally, the Standing Rock Sioux and other indigenous rights activists accused the Army Corps of Engineers of violating treaties between the United States and the Standing Rock Sioux, which can be seen as part of a much older debate regarding governmental exploitation of Native Americans.

Depending on one’s perspective, the 2010s could be seen as a pivotal time in the history of US environmental policy and the future of the petroleum industry. The DAPL project involves “fracking,” or “hydraulic fracturing,” which is a controversial method used to extract oil from sandstone, limestone, and shale. Opponents of fracking have argued that the process is more expensive, produces more waste, and poses a unique health threat to communities around areas where fracking occurs because of the increased potential for water and soil pollution. In addition, opponents of fracking argue that further land development to support petroleum exploration of any kind will deepen the climate change problem and potentially divert resources and attention that might otherwise go to developing renewable energy projects such as wind, solar, geothermal, and wave/tidal energy. Supporters of fracking are typically motivated by the potential profits from continued oil development and argue that fracking leads to less greenhouse gas emissions than traditional coal mining and is therefore a cleaner alternative.

While the Obama administration, responding to environmental and economic studies and public sentiment, abandoned another pipeline project, Keystone XL, in 2015, the DAPL project controversy peaked during the 2016 election. Electoral vote winner Donald Trump, during his campaign, pledged to support petroleum exploration, including revitalizing abandoned projects like the Keystone XL pipeline, and to revitalize the coal industry. The Standing Rock Sioux protests therefore also drew in support from individuals concerned about the Trump administration’s overall stance on environmental politics. Trump, for instance, has refuted the findings of climate change scientists, and has personal investments in two of the companies involved in the DAPL project, Energy Transfer Partners and Sunoco.

The most complicated issue surrounding DAPL involves the federal government’s claim of “eminent domain,” in which a government can claim privately owned land for public as long as the government provides fair compensation to the original land owners. Part of the land set aside for DAPL falls into the Black Hills of North Dakota, a sacred site to the Sioux of the region. Much of the territory was given to the Sioux by the 1868 Treaty of Fort Laramie. However, after the Sioux Wars, the government forced the Sioux to accept a new agreement in which much of their original land returned to government control. In 1980, after a long legal battle, the courts ruled that the land had been taken unjustly and ordered the government to compensate the Sioux. The government offered payment, but the Sioux tribe declined and continues to lobby for the return of the sacred Black Hills land. The Standing Rock Sioux claim that the government has no right to grant the corporations use of their ancestral land, and this is part of a much older debate regarding the ownership of land that once belonged to Native American tribes. During an emergency archaeological survey of land within the construction area, conducted by Sioux archaeologist Tim Mentz, archeological artifacts indicating a potential Sioux burial site were allegedly discovered. However, the Standing Rock Sioux alleges that the company purposefully destroyed the alleged artifacts before they could be studied in an effort to remove evidence of archaeological significance that would likely have necessitated postponing construction.

Author Biography

The Sierra Club is one of the oldest environmental organizations in the United States, having been founded in 1892 by pioneer conservationist John Muir. The Sierra Club has been instrumental in passing key US environmental legislation, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act. In the 21^st century, the Sierra Club has gravitated towards environmental lobbying for green energy and opposition to petroleum industry expansion. In 2017, three of the organization’s major campaigns were the Beyond Coal, Beyond Natural Gas, and Beyond Oil campaigns, which seek to educate the public about the economic and environmental benefits of alternative energy and about the dangers of fossil fuel consumption, including climate change, pollution, and related effects on public health.

Honor the Earth is a Minneapolis, Minnesota based activist organization that focuses on environmental issues facing indigenous populations. The organization was founded in 1993 by musicians Amy Ray and Emily Saliers and activist Winona LaDuke of the Ojibwe Nation. LaDuke, who serves as the organization’s executive director, was a two-time vice-presidential candidate with Green Party candidate Ralph Nader in 1996 and 2000 and received an electoral college vote for vice president in 2016, become the first Native American woman to receive a vice presidential electoral vote. Among other issues, Honor the Earth supports Native American voting efforts and has been involved in campaigns to protect indigenous sacred and archaeological sites, as well as getting involved in campaigns to promote renewable energy and other anti-petroleum power initiatives.

The Indigenous Environmental Network (IEN) is an alliance of indigenous individuals and groups dedicated to protecting indigenous culture and rights and working towards renewable energy and environmental conservation. The organization was founded in 1990, and is currently led by executive director Tom Goldtooth, a U.S. Army veteran and member of the Navajo nation who was a prominent organization for Native American rights after the Vietnam Conflict. The IEN is one of the organization that spearheaded the fight against the proposed Keystone XL Pipeline, a project initiated by a Canadian company extending from the Canadian Oil Sands to the Gulf Coast of the United States. In November 2016, the Obama administration rejected the pipeline project, citing climate change concern in addition to analyses indicating that the project would not benefit U.S. consumers, create meaningful job growth, or increase U.S. energy security.

Document Analysis

In October of 2016, members of the Sierra Club, Honor the Earth and the Indigenous Environmental Network drafted a letter to the U.S. Army Corps of Engineers outlining the concerns of all three organizations regarding the DAPL project and asking the Corps of Engineers to investigate misconduct on the part of the companies involved, to commit to a comprehensive environmental study of the potential impacts of the project, and to either revoke or suspect the Corps approval for use of the lands petitioned by the companies involved in the project. While many journalistic and popular accounts of the DAPL debate were written in the fall and winter of 2016, the Sierra Club, Honor the Earth, and Indigenous Environmental Network letter is a legal response to actions taken by DAPL and the Corps of Engineers that allegedly violated environmental and historical preservation laws.

The first part of the letter concerns the rights of Native American peoples and accuses the companies leading the DAPL of violating the National Historic Preservation Act (NHPA), a 1966 public law that protects areas with historical or archaeological significance. According to the official statement, the Standing Rock Sioux Tribe submitted detailed findings regarding the discovery of an “unusually dense collection of cultural and historic sites,” located along the planned route of the pipeline, including at least 27 grave sites and five stone features. The findings had been discovered by Sioux archaeologist Tim Mentz and became part of the U.S. District Court case Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. According to official court documents, Mentz submitted details of his findings to the courts on and the State Historic Preservation Office on September 2, 2016. Among other findings, Mentz described a large stone chiseled with a representation of the constellation Big Dipper, known to the Sioux as Iyokaptan Tanka, which Mentz argued indicated that the site might contain the remains of a former chief. Mentz and the Standing Rock Sioux argued DAPL’s survey of the area, which found no evidence of archaeological remains, was based on a 1985 survey of the area, which had failed to uncover the remains that Mentz discovered. The tribe further argued that, according to North Dakota Tribal Reinternment Committee law, the tribe would have the right to excavate and rebury any remains in the era. Mentz further declared his belief that the bodies would have been buried in shallow graves covered in rock cairns and that the burial sites would therefore be vulnerable to even superficial disturbance.

According to the contributors to the letter, on the morning of September 3rd, DAPL arrived at the 2-mile location where Mentz found archaeological remains and bulldozed the exact sites that had been mentioned in the tribe’s official statement to the Historic Preservation Office. Standing Rock and allies officially filed a court complaint accusing DAPL of purposefully destroying the site to destroy evidence of archaeological findings that might have led to a legal challenge against DAPL. As evidence, the letter claims that the work crews that arrived at the site the following day had moved more than 20 miles from where the crews had been working the day before. Further, the letter alleges that, just after the historical sites had been discovered, DAPL security arrived with dogs and pepper spray to chase protestors away from the contested, potential historical sites.

In the second section of the official request, the Standing Rock Sioux tribe and allies formally request that the Army Corps of Engineers conduct an immediate study to produce an environmental impact statement (EIS). Specifically, the authors want the Corps of Engineers to study potential effects of a pipeline rupture or spill under the Missouri River and how this might affect the waters of Lake Oahe that provides a water supply for the Standing Rock Sioux. The letter asserts that the National Environmental Policy Act (NEPA) requires an analysis if new circumstances arise indicating additional environmental concerns, and the authors argue further that federal laws prohibit the continuation of the project until an official EIS finds that the project would have “minimal adverse environmental effects.”

In their letter, the coalition argues that the Corps of Engineers never published or submitted any information specifically addressing the risks of oil spills and leaks and argued that past projects managed by Energy Transfer Partners resulted in leaks with significant environmental consequences. To justify this claim, the letter specifies that new information had been revealed since the Corps released their initial environmental analysis indicating that oil spills and accidents were more common than previously believed, that current safety systems were inadequate to detect leaks, and that federal agencies could not effectively manage pipelines once constructed. The letter cites a September 2016 discovery of a pipeline spill reported by a citizen in Alabama, which reportedly released more than 336,000 gallons into the surrounding area. Further, the letter cites a Reuters news study indicating that there had been 466 pipeline spills in the six years prior to 2016 and that more than 21 percent had been detected by members of the public, versus only 19 percent detected by the safety system that would be used to monitor the DAPL. The authors further claim that another company involved in the project, Sunoco Logistics, has been responsible for more oil spills than any other oil exploration firm. Data collected from the national disaster management system by Reuters estimated that Sunoco was responsible for 203 leaks since 2010, while information from the U.S. National Response Data on projects managed by Energy Transfer Partners revealed at least 69 accidents in 2 years polluting water supplies in 4 states, with more than half of the accidents resulting from ruptures in a petroleum pipeline.

Further, the authors argued that the Corps of Engineers failed to analyze the potential greenhouse gas emissions that would result from the DAPL project, and cited a September 2016 report from Oil Change International indicating that DAPL may result in as much as 101.4 million metric tons of CO2 emissions annually, which the authors note is the equivalent of 21 million passenger vehicles and 30 coal-based power plants. The authors then go on to cite a widely publicized discovery that the project had been moved from its original course, traveling closer to Bismarck, North Dakota, due to concerns that the pipeline might threaten water supplies in the region. The evidence behind this claim became part of a widely-circulated fake news item asserting that DAPL had decided to move the pipeline project away from Bismarck because the plan had been rejected by white property owners in the area. The fake news version of the story then suggested that the decision to move the pipeline closer to Native American settlements represented racism on the part of the executives involved. Later evidence showed that DAPL abandoned an initial plan to pass close to Bismarck because it would have extended the pipeline length and because construction would have been close to residential areas. The white citizens of Bismarck did not reject the project, however, as the news item claimed.

Lastly, the authors of the letter ask the Corps of Engineers to suspend any easements granting DAPL the right to construct on the disputed territory until an environmental analysis was completed. The third argument draws heavily on provisions of NEPA that prohibit construction on any part of a planned project until the impact of the entire project has been assessed. In essence, the third part of the letter reframes the environmental arguments made earlier, drawing on existing NEPA regulations, and asks that the Corps of Engineers postpone construction and establish a lead agency, of the various agencies involved, to coordinate efforts for a full environmental impact study.

Essential Themes

Much like the effort to defeat the Keystone XL pipeline project in 2015, the opposition to the DAPL project drew support from both indigenous rights activists and environmental activists. Like the Keystone XL project, the anti-DAPL movement demonstrated how the goals of indigenous peoples and environmental activists overlap on issues of conservation and environmental protection. While some supporters of DAPL criticized environmentalists for “using” the Native Americans at Standing Rock to promote their agenda, both groups shared legitimate interests. The effort to preserve aspects of Native American culture from erosion, necessarily involves, and has long involved, the need to preserve remnants of American biospheres. This occurs because indigenous culture, by its nature, is linked to the environment in ways that imported European-American culture is not. Teaching traditional skills and passing on information about the history and cultural legacy of indigenous people is dependent on the ability to preserve areas with cultural/spiritual significance.

The timing of the DAPL protests, occurring in the midst of the 2016 presidential election, played a major role in how the protest movement developed. Given Donald Trump’s personal investments in petroleum and statements pledging to expand petroleum development, participants on both sides recognized that the outcome of the election would likely have a dramatic influence on the future of DAPL specifically, and potentially, oil exploration in general. As reported by numerous news agencies, Donald Trump was a personal stockholder in the Texas-based Energy Transfer Partners, owning between $15,000 and $50,000 in stock according to federal disclosure forms, as well as between $100,000 and $250,000 in Phillips 66, a petroleum distribution chain with a ¼ share of the project. This personal financial stake, coupled with Trump’s stance on climate change and environmental legislation, helped garner unprecedented levels of support for the Standing Rock Sioux and the DAPL Project.

The fight against DAPL took place simultaneously in the courts and on the ground, in the area around the construction site, where thousands gathered in makeshift camps to protest the project. Actress Shailene Woodley and Green Party Presidential Candidate Jill Stein were among the celebrities and public figures who took part in the protests. In a turning point, a group of Armed Forced Veterans, led by Native American veterans, visited the Standing Rock camps where they intended to shield civilian protestors from security guards who had reportedly been using water cannons, pepper spray, and other violent means to disperse the protestors. While the protests continued, garnering more and more public interest, legal representatives took the case to court to obtain a legal remedy. On September 9th, 2016 U.S. District Court Judge James Boasberg denied the Standing Rock Sioux request to halt construction, thus dealing a major blow to the effort. However, the Department of Justice and Department of the Interior announced that construction under Lake Oahe would not proceed until a further evaluation could be completed.

On November 21st, law enforcement agents at the Standing Rock camp used tear gas and fire hose to disperse protestors, despite the fact that the temperature had dropped below freezing, leading to higher levels of public outrage over the issue. The Army Corps of engineers ordered protestors to leave the campsites due to concerns over the weather, but hundreds remained. Then on December 4th, a temporary victory for the DAPL opponents as the Army Corps of Engineers issues a statement saying that it will halt construction of the pipeline pending a full EIS before approving construction of the section crossing Lake Oahe. Despite what many felt was a victory, on January 24th, Trump signed an executive memorandum instructing the Corps of Engineers to expedite the approval process. Trump also expressed his intention to revive the defunct Keystone XL project. The Army Corps of Engineers granted a land-use easement on February 7th and rescinded earlier statements that they would invite public comment and prepare and environmental impact assessment. Despite a Feb 9th, legal challenge by the Cheyenne River Sioux and the Standing Rock Sioux, requests for an injunction were denied by District Judge Boasberg.

As of March 2017, the effort to stop DAPL had been a failure. While the environmental implications of the pipeline remain unknown, due to the Army Corps refusal to prepare an environmental impact study, the controversy also had important implications for Native American rights. Sioux tribes have long contested government ownership of the Black Hills of North Dakota, which has been considered a sacred site by the Sioux people for thousands of years. Despite government efforts to compensate tribal members for what the courts determined had been an unlawful seizure, members of the Sioux nations have refused to accept the payment and, instead, want the land that was seized form them unlawfully through eminent domain. Supporters of the pipeline and conservative media attempted to frame the situation as one in which a group of environmentalists were attempting to oppose energy infrastructure expansion and, in doing so, obfuscated one of the most important issues of the controversy, government treatment of Native Americans and the continuing effort of Native American people to control essential part of the land that long belonged to their ancestors.

Bibliography and Additional Reading