Rick Hellman
KU News Service

Environmental justice overlooked in Dakota pipeline saga, legal expert says

Mon, 09/11/2017

LAWRENCE — Even though there have already been leaks since oil began flowing through the Dakota Access Pipeline this spring, American Indian tribes still have a chance to stop it, according to a University of Kansas professor.

In her new article, “Environmental Justice: A Necessary Lens to Effectively View Environmental Threats to Indigenous Survival” — published in the Transnational Law & Contemporary Problems Journal — Elizabeth Kronk Warner writes that there are a number of bases under which affected American Indian tribes might reasonably challenge the pipeline in court. Kronk Warner is a professor at the KU School of Law and director of the school’s Tribal Law & Government Center.

A court has already ruled that the U.S. Army Corps of Engineers, the federal agency that approved and permitted a segment of the pipeline’s cross-country route, met the requirements of the National Historic Preservation Act and adequately consulted the Standing Rock Sioux Tribe as to that path, which brushes up against the tribe’s reservation.

But Kronk Warner writes that there are other issues over which the tribes might sue and prevail, including the basic unfairness of re-routing the pipeline away from the mostly white city of Bismarck, North Dakota, for fear of contaminating its water supply and toward the Standing Rock reservation.

“The environmental justice claim has not yet been fully adjudicated,” Kronk Warner said. “There are still cases ongoing.”

Then, too, Kronk Warner writes, there are legal issues related to the fact that American Indian tribes have national sovereignty.

It is well-established, she writes, that the federal government has a “trust responsibility” to American Indian tribes owing to the tribes’ “many cessions of both land and external sovereignty” in years past. Courts, she writes, have ruled that the federal government has “fiduciary obligations related to the management of tribal trust lands and resources” and that “statutes affecting Indians are to be construed liberally in favor of the Indians...”

Thus, under certain circumstances, “the federal government owes to Native nations a duty that it ensures natural resources are sustained.”

The pipeline, portions of which are buried below Lake Oahe and the Missouri River, threatens not only those water resources on which the tribes depend, but also land that was originally American Indian territory.

Kronk Warner devotes a section of her article to outlining the “Unique Tribal Connection to the Land and Environment,” stating that indigenous communities’ claims differ from others in that “indigenous cultures and traditions are tied to the environment in a manner that traditionally differs from that of the dominant society.” For American Indians, she writes, land is “the source of spiritual origins and sustaining myth which in turn provides a landscape of cultural and emotional meaning.”

If that weren’t enough, Kronk Warner writes, tribes opposed to the pipeline might challenge it based on international law. The U.N. Declaration on the Rights of Indigenous Peoples, which the United States has signed, provides guidance meant to preserve “indigenous self-determination,” she writes, including restitution or compensation “for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Finally, Kronk Warner writes, the Standing Rock Tribe’s current case before the Washington, D.C., Court of Appeals questions whether the government adequately consulted the tribe under a nationwide system of water-crossing permits established under the Clean Water Act. Tribal representatives failed to appear at several scheduled meetings.

“The big takeaway from this is that even if you disagree with the method of consultation, you should show up,” Kronk Warner said.

Even so, Kronk Warner believes there are flaws in the consultation process involved in DAPL. She writes that the Army Corps’ Nationwide Permit No. 12, issued in 2012, “pre-approved construction without any consultation on the pipeline’s impacts on the tribe’s sacred sites.” “That permit authorized Dakota Access to make a unilateral determination of impacts and hence the tribe never had an opportunity to participate in the National Historic Preservation Act process except in a handful of areas.” The consultations that did occur “focused only on the narrow area of the Corps’ direct Clean Water Act jurisdiction, ignoring the pipeline route outside these jurisdictional areas,” she writes.

A challenge to the national permit might be a fruitful avenue for the tribes to pursue, Kronk Warner said.

“How do you engage in effective consultation with a nationwide permit?” Kronk Warner asked rhetorically. “I’d encourage tribes and municipalities to come together to push for an end to these nationwide permits for pipelines.”

Photo: Screenshot from "#NoDAPL - Water protector "Happi" American Horse in North Dakota" at about 0:09.

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