Standing Rock: An Intersection of Rights

By Jenna Dolecek

Standing Rock Reservation in North Dakota, United States is a First Nations Sioux sovereign territory. A reservation is a piece of land that the US government set aside for Native Americans to reside on. Historically, tribes were forcibly removed from their ancestral lands to reservations.  However, with a reservation comes tribal sovereignty, meaning that tribes are allowed to govern themselves. Unfortunately, not only has the US stolen land previously negotiated in treaties, but the poorly managed tribal-federal system itself keeps Native Americans disenfranchised and with few avenues to protect and exercise their rights. The erosion of tribal sovereignty is a long standing issue in the United States.

Tribal Sovereignty and water rights are intertwined. Energy Transfer Partners (ETP) and Army Corps of Engineers are building the Dakota Access Pipeline to carry Bakken shale oil obtained from fracking.  The pipeline passes within a few miles of the reservation and will go under the Missouri River which provides drinking water for tens of millions of people. A Supreme Court decision found that establishing a reservation comes with implied water rights. The issue of whether the pipeline’s construction violates these water rights is currently being heard before the courts.

Indigenous rights require that the Tribal Council must be consulted if construction efforts may affect a reservation. In this instance, the UN Special Rapporteur on the Rights of Indigenous Peoples’ stated that the Standing Rock Tribal Council was not consulted and further that a full investigation into the environmental impact and the impact on sacred lands was not carried out. Many claims have been made that this violates the Treaty of 1851 (also known as the Sioux Treaty of 1868 or the Fort Laramie Treaty). Additionally, even though not within reservation territory, the surrounding lands are considered sacred to the Sioux and contain burial grounds which ETP has destroyed. Tribal consultations finally began in October 2016 and ended on 17 November. There have been numerous attempts to make ETP halt construction in order to ease tensions pending the result of the consultations but they have refused.

There may be potential violations of civil and political rights in law enforcement’s response to the protests. Police from seven states have been dispatched to deal with several thousand people attempting to block the pipeline’s route. Unfortunately, both sides have become aggressive and clashes have ensued. There is debate about whether the response of law enforcement has been proportionate or appropriate.

In the international sphere of human rights, Chief Edward John, Representative to the UN Permanent Forum on Indigenous Issues was sent to observe the situation and has submitted his report. Amnesty International is observing as well. ETP hired a private security company to handle guard dogs, who were later found not to be licensed and not allowed to operate in North Dakota. Protestors have been pepper sprayed, shot with rubber bullets, and, potentially, forcibly and arbitrarily detained in degrading conditions. The UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association has concluded that law enforcement has been using excessive force against protestors.

Although the Army Corps itself has said there is still a need for further investigation, ETP’s CEO said they will not stop construction but that he would like to meet with the tribe to ‘ease their concerns’. Protestors and Native Americans believe the only way to protect the Missouri River is to completely end the project, and that rerouting will not be sufficient. Tensions are rising and clashes are becoming more frequent. Recently, law enforcement agents have used fire truck hoses on protestors in 23°F/-5°C temperatures, well below freezing. Percussion grenades and rubber bullets have also been utilised.

This show of solidarity is no longer just about protecting water, it is about respecting the interests and well-being of Native Americans after hundreds of years of massacres, marginalization, and injustice.  Standing Rock is at an intersection of rights. Indigenous rights, civil rights, water rights, and corporate responsibility. It seems that private interests are being put above individuals’ rights and safety.

Disclaimer: The views expressed herein are the author(s) alone.


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