Sarah Krakoff: Standing With Tribes Beyond Standing Rock

The Harvard CR-CL Amicus blog posts solicited content in an effort to feature debate and various perspectives. Sarah Krakoff, the Raphael J. Moses Professor of Law at University of Colorado Law School, teaches and writes about American Indian law and natural resources law. Her publications include American Indian Law: Cases and Commentary (with Bob Anderson, Bethany Berger and Phil Frickey), Tribes, Land and Environment (with Ezra Rosser), as well as articles published in the Stanford Law Review, California Law Review, Harvard Environmental Law Review and other journals. Professor Krakoff has worked on a variety of cases pro bono, including filing amicus briefs in the U.S. Supreme Court and several federal courts of appeals. When Professor Krakoff first came to the Law School, she was the Director of the American Indian Law Clinic, supervising students in federal Indian and tribal law cases and projects. She succeeded in securing permanent University funding for the Clinic before moving to non-clinical teaching in 1999. Before coming to Colorado, Professor Krakoff was awarded an Equal Justice Works Fellowship to work on the Navajo Nation as Director of the Youth Law Project for DNA-People’s Legal Services. Professor Krakoff clerked on the Ninth Circuit Court of Appeals for Judge Warren J. Ferguson from 1992-93. She received her J.D. from Boalt Hall, U.C. Berkeley, in 1991 and her B.A. from Yale University in 1986.

“This is not just a Standing Rock issue . . . This is a human rights issue.” Those were the words of Cheyenne River Sioux tribal member Joye Braun last fall, when hopes of defeating the Dakota Access Pipeline ran high. In the waning days of the Obama administration, the Army Corps of Engineers made a formal decision to subject the pipeline easement to an environmental impact statement. Then the Trump Administration swept in with its flurry of executive orders, and the Army Corps’ understanding of what the law required was swiftly reversed. The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Tribe continue to fight the pipeline in court. However, construction is now complete and oil flows under the Missouri River, the Tribes’ sole water source. The Oceti Sakowan encampment, which at one time included several thousand residents, is no more. At the end of February, flames flickered and smoke filled the air as many of the water protectors, consistent with Sioux traditions, burned their campsites before departing. The scene of desolation and loss on the plains was achingly familiar.

When the Standing Rock Sioux Tribe challenged the Dakota Access Pipeline in a lawsuit last summer, few predicted that the cause would garner national attention. There are 567 federally recognized tribal governments in the U.S. Every year, many are embroiled in battles to stave off harmful development on their ancestral lands. Yet most Americans never hear about them. Here are two examples: in the early 2000s, the Navajo Nation and six other tribes sued the U.S. Forest Service to combat the expansion of a ski area in northern Arizona. The expansion proposal involved spraying treated sewage water on the San Francisco Peaks, which are sacred to the tribes. Despite the ski area’s questionable viability—it is located in a high altitude desert where climate change already affects the fickle winter snowpack—the Ninth Circuit Court of Appeals rejected the tribes’ claims. A few years later, the Te-Moak Tribe of Western Shoshone fought a gold mine on their sacred Mount Tenabo. The same court recognized that the mine’s expansion interfered with the Shoshone’s religious practices, but ruled against the Tribe anyway. (Canadian mining giant Barrick Gold was the beneficiary of the decision, and thanks to federal mining laws, the company pays no royalties to the U.S.)

I have frequently been asked why the Standing Rock conflict generated so much more attention than San Francisco Peaks, Mount Tenabo, and other similar cases.

I have frequently been asked why the Standing Rock conflict generated so much more attention than San Francisco Peaks, Mount Tenabo, and other similar cases. I am not sure of the answer, despite several possible explanations. Like Keystone XL, Standing Rock involved an oil pipeline, so opposing the Dakota Access Pipeline resonated with the larger movement to combat fossil fuel development and climate change. In addition, Standing Rock tribal members and their supporters early on made savvy use of social media to spread the word. Standing Rock Chairman David Archambault’s calm and determined leadership also provided a focal point for the movement. But still, was there something else? Why did Bonnie Raitt, Leonardo DiCaprio, Shailene Woody, and Bernie Sanders all stand with Standing Rock, whereas there were no rock concerts or viral tweet storms about the ill-fated ski area, the boondoggle for Barrick Gold, or the other threats to tribal communities throughout the country?

The explanation may matter less than asking where the movement will go from here. The conflict about the pipeline is not over. But when it is, will the momentum from that movement translate into a more general rejuvenation of environmentalism? Might we see a movement that puts indigenous peoples and other groups who are disproportionately the victims of environmental degradation (Flint, Michigan, anyone?) at the center, instead of on the fringes? Could a broader movement finally deliver environmental protection and sustainability for all?

A movement that braids equality and environmentalism together is timely. If we are on the edge of such a thing, here are some insights from American Indian law and policy.

First, standing with tribes means supporting tribal sovereignty.

First, standing with tribes means supporting tribal sovereignty.From the 1880s through the 1920s, policies of “allotment and assimilation” aimed to pulverize the collective nature of tribal landholdings and eliminate tribal governments. The results were disastrous—impoverishing Native people and diminishing their lands. After World War II, federal policies of “termination” cut tribes off from their federally recognized status. Two successful tribes—the Menominee and the Klamath—plunged into terrible economic straits. So, standing with tribes beyond Standing Rock must include extreme wariness about proposals to privatize tribal lands or otherwise “liberate” tribes from their unique relationship with the federal government.

Standing with tribes also entails confronting outsized fears about tribal claims. Tribes lose cases like the San Francisco Peaks and Mount Tenabo challenges because the federal government and some members of the public fear that recognizing tribal interests will result in the prohibition of all other land use activities. These fears are unfounded. Tribal religious and treaty rights claims are rooted in specific practices, and can often coexist with other land uses, whether recreational or extractive. Tribal claims may be incompatible with exploitative or unsustainable land use proposals, such as expanding ski areas in deserts or constructing oil pipelines under vital water resources, but those should be rejected on broader environmental grounds regardless.

Standing with tribes beyond Standing Rock involves making reparations for . . . history by seeing . . . that environmental issues are human rights issues.

The Dakota Access route crosses lands that the Fort Laramie Treaty of 1851 recognized as Sioux territory. But under pressure from the U.S. military, some Lakota bands signed a subsequent agreement in 1868, which excluded the lands where the pipeline route now lies. In 1889, the Great Sioux Settlement again reduced the Great Sioux (Dakota) Nation, carving it into the Rosebud, Lower Brule, Standing Rock, Cheyenne River, Crow Creek, and Pine Ridge Reservations. Today, the government of each of these tribes protects their respective cultural survival. Tribal histories of dispossession motivate the Tribes’ efforts to protect their homelands, their waters, their children—and the seventh generation. Standing with Standing Rock requires understanding this history. Standing with tribes beyond Standing Rock involves making reparations for that history by seeing, to paraphrase Ms. Braun, that environmental issues are human rights issues. In the U.S. context, that means safeguarding tribal sovereignty and self-governance across the board, not just when pipelines are at stake.

 

Photo Credit: Oceti Sakowin Camp

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Michael is a 1L at HLS. He is interested in LGBTQ rights and immigrant rights. Michael is involved in Harvard's Immigration Services Project and volunteers through Harvard Lambda at the Y2Y youth homeless shelter in Harvard Square.

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