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  • The Dakota Access Pipeline

    Citizen's Open Forum September 16, 2016

    Ann Hunter

    The Standing Rock Sioux Tribe, joined by many many other indigenous nations,

    environmentalists, politicians, celebrities, and other people, opposes the

    construction of the Dakota Access Pipeline, a multi billion dollar project of Energy

    Transfer Partners LP. that will add another pipeline to those that already bring

    crude oil from the Bakken shale formation to storage facilities near St. Louis and

    ultimately to refineries in the Gulf of Mexico.

    Specifically Standing Rock, which is located along the Missouri River south of

    Bismarck North Dakota, straddling the border between North and South Dakota

    opposes the portion that runs within 1/2 mile of its reservation and under Lake

    Oahe, an artificial lake created at the junction of the Cannonball River and the

    Missouri. The pipeline crosses the Missouri at this point. The area is a sacred site for

    the Sioux, as well as a source of their water supply. Energy Transfer Partners, the

    developer, claims that they have gotten all the permits they need, that the $3.8

    billion pipeline is 60% complete and they need to finish it.

    The pipeline is planned to run for over 1,000 miles, through the Dakotas, Iowa, and

    Illinois, mostly under private land, but also under bodies of water including the

    Missouri and the Mississippi as well as many smaller rivers and creeks, triggering

    the need for federal permits. However, while natural gas pipelines require stringent

    permitting procedures, crude oil pipelines do not. A full EIS has never been

    completed for this project as a whole.

    Indigenous peoples from throughout the US and Canada and even from as far away

    as South America are supporting the Standing Rock Sioux, joined by

    environmentalists who oppose the pipeline as an environmental threat. They have

    set up an encampment at the construction site called the Sacred Stone Camp. It has

  • grown to 1,000 people. Gatherings in support of the Sioux have been held

    throughout the US and Canada. Supporters of the Standing Rock Tribe include

    350.org, Greenpeace, the Sierra Club, Veterans for Peace, and many many other

    organizations. Individual supporters include Bernie Sanders, Jill Stein, Joan Baez,

    Leonard DiCaprio, etc. etc. Opposition to the project continues to grow.

    The company proceeded with construction even though the tribe pointed out a

    burial site that would be destroyed if they went any farther. Tribal members and

    their supporters resisted peacefully, calling themselves protectors, not protestors.

    Security guards provided by G4S, used mace and set dogs on them, as documented

    on video and broadcast on Democracy Now. (Amy Goodman now has a warrant out

    for her arrest for covering the protest.) The company claims that protestors, who

    call themselves protectors, attacked the guards and dogs. (bear in mind that in some

    cases dogs attacked children whose parents were present.)

    The tribe filed a request for a preliminary injunction, alleging that the federal

    permits required for the project were issued illegally. A federal judge in DC denied

    the injunction on Friday Sept. 9. Natural gas pipelines require extensive federal

    appraisal & permitting. Domestic oil pipelines do no and the judge pointed out that

    DAPL "needs almost no federal permitting of any kind because 99% of its route

    traverses private land." The exception is that it involves construction in federally

    regulated waters at hundreds of places along its route. The Army Corps of Engineers

    had to permit this activity under the CWA and /or the Rivers and Harbors Act. It

    issued a general permit, Nationwide Permit 12.

    But Standing Rock says the Corps violated the National Environmental Protection

    Act and the National Historic Protection Act, as well as other federal statutes. The

    preliminary injunction was sought only based on NHPA, which requires consulting

    with tribes before issuing permits that might affect historic resources. The court

    ruling claims that the tribe did not act in a timely manner to request consultation

    about cultural resources near Lake Oahe.

  • However, as soon as the request for an injunction was denied, three federal

    agencies, DOJ, Interior, and the Army Corps, stepped in. They called for construction

    to stop pending a serious discussion regarding not only this pipeline but whether

    reform is needed in the process for considering tribal views on pipeline related

    infrastructure decision making in general. Construction was halted in the immediate

    vicinity of Lake Oahe.

    President Obama asked Energy Transfer Partners to stop construction for a 20 mile

    radius around the site, pending further proceedings. The company has not

    responded to his request, but they say that their CEO will meet with federal officials

    and the project will go forward. The encampment continues and people there say

    they are prepared to stay through the winter. It is unclear what the discussion with

    federal officials will look like, although most people see it as a positive step and a

    victory for tribal sovereignty. In the meantime, the governor of North Dakota has

    activated the National Guard and made a number of arrests. The U. of Colorado Law

    School American Indian Law Program is coordinating a legal response for those

    arrested or injured in the protest.

    The President of the American Petroleum Institution, Jack Gerard, says that Obama's

    request shows that the United States no longer honors the rule of law. He claims that

    halting this pipeline will have a chilling effect on the US economy. The AFL-CIO also

    supports the pipeline on the theory that it will create jobs. The statement on their

    webpage says that "pipeline construction and maintenance provides quality jobs to

    tens of thousands of skilled workers." They say the Dakota Access Pipeline is

    providing over 4,500 high-quality, family supporting jobs. On the other hand, the

    Communications Workers of America, affiliated with the AFL-CIO, supports the

    Standing Rock Sioux Tribe. It appears to be true that the construction process is

    creating large numbers of jobs, with lots of overtime, but once completed, one

    estimate says that it will only create 40 permanent jobs.

  • People are also actively protesting the Iowa portion of the pipeline, where the

    state's utility board has allowed Energy Transfers LP to acquire property through

    eminent domain, affecting hundreds of landowners. A group of those landowners

    are suing the utility board based on a 2006 law that is supposed to protect property

    from being seized for private development. Protesters have been arrested there as

    well.

    Why do the Sioux at Standing Rock have cultural artifacts and historic and

    sacred locations outside the bounds of the Standing Rock reservation?

    The Standing Rock Reservation was originally part of the much larger Great Sioux

    Reservation established by the Treaty of Fort Laramie of April 29, 1868, which

    encompassed all of present day South Dakota west of the Missouri, and was later

    extended north to the Cannonball River, including the Missouri River itself and the

    Black Hills. It also included as vast hunting rights off the reservation. Further

    cessions had to be approved by 3/4 of the adult men of the Sioux. But in 1874, gold

    was discovered in the Black Hills, and in 1877, Congress appropriated the Black

    Hills without the Sioux's consent.

    Congress further reduced the reservation in 1889, dividing it into six smaller

    reservations, including Standing Rock, and adding some North Dakota land to

    Standing Rock. About 9 million acres, half of the original Great Sioux Reservation

    was then "opened up" and sold by the government to ranchers and homesteaders.

    The railroads facilitated this process, encouraging people to farm on the arid land,

    with predictable results. (Disclosure: My great-grandfather and grandfather worked

    for the Chicago Milwaukee St. Paul RR doing this kind of thing.) The Lakota tribes

    received small payments that were mostly offset against agency expenses.

    The lands still held by tribes were further broken up and reduced by the Dawes

    Allotment Act, which allocated small holdings to individual tribal members and sold

    off the so called surplus to non-natives. The act also made the individually held

  • lands subject to sale by the owners, inevitably further reducing the land in Indian

    ownership. The government continued to claim that the individual parcels were

    suitable for farming, but this did not work any better for the Lakota than for the

    homesteaders. By the 1930s, Dust Bowl conditions prevailed in much of the area.

    Many homesteaders abandoned their parcels, but the government did not give them

    back to the Lakota, instead retaining them or selling them.

    Why Construct this Pipeline?

    Bakken Oil Shale underlies parts of Montana, North Dakota, Saskatchewan

    and Manitoba. It has no surface outcropping. T

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