An executive order signed by Donald Trump entitled “Executive Order Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects” on January 24 is sending up red flags, and rightfully so. The order, which does not speak specifically of the Dakota Access Pipeline (DAPL), makes it so that environmental impact studies will be expedited, possibly leading to shallow reviewing of the situation and a rubber stamp approval of projects.
While there is a general environmental concern about such a policy, and the infrastructure affected is unlikely to be public infrastructure that is crumbling around us – but rather private infrastructure like the DAPL and the Keystone pipeline – which may be later news as we have more events like the BP spill in the Gulf of Mexico, this article is going to concern itself with the foreign policy issues surrounding the DAPL.
Donald Trump has sold his interests in the DAPL already, though other members of his administration do have interests in the pipeline. In addition to this executive order, he also issued a memo to the Secretary of the Army specifically regarding the DAPL, calling for the environmental review to be expedited, presumably to get a green light on the project going through Lakota Sioux land. This is particularly problematic since the memo specifies ” [l]and or an interest in land for the pipeline and facilities described herein may only be acquired consistently with the Constitution and applicable State laws.”
Of course, no state’s laws would apply to such a project through Lakota Sioux land – they are a sovereign nation – and the memo makes no mention of making sure the construction of the pipeline conforms to the language of the 1868 Treaty of Fort Laramie. While the project may still, ultimately, make its way around Sioux land, the current study is indeed involving a plan to proceed through Sioux land.
In 2016, protests erupted on the Standing Rock reservation where people from across the United States and various Indian tribes came together to protest the building of the pipeline. Private contractors were guarded by state and local police, all of which were there in violation of international law. President Obama decided not to adhere to the treaty, but nearing the end of his term he did choose to lay upon the Army a task which would effectively punt the issue down the field to the next president.
In order to adhere to international law established between the Sioux and the United States in the treaty, certain things would have to be done in any construction of this pipeline.
Article XI, the sixth point thereof, lays out rules regarding what must happen prior to any such construction.
“They withdraw all pretence of opposition to the construction of the railroad now being built along the Platte river and westward to the Pacific ocean, and they will not in future object to the construction of railroads, wagon roads, mail stations, or other works of utility or necessity, which may be ordered or permitted by the laws of the United States. But should such roads or other works be constructed on the lands of their reservation, the government will pay the tribe whatever amount of damage may be assessed by three disinterested commissioners to be appointed by the President for that purpose, one of the said commissioners to be a chief or headman of the tribe.”
The Army doesn’t actually have the authority to make the environmental assessment of the project if that assessment involves crossing Sioux land. Rather, President Trump must appoint a commission of three disinterested individuals, one of whom must be a leader in the tribe, to assess the damage.
The implication that the U.S. Army could make this determination, in itself, is an insulting aversion to international law which both Presidents Obama and Trump share in common. The Secretary of the Army may be on the commission, if they are disinterested, but the Army is not the commission.
Who May Construct
Article II of the treaty lays out rules over who may enter the Sioux land, without permission.
“The United States agrees that the following district of country, to wit, viz: [lengthy geographic description omitted] set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no persons, except those herein designated and authorized so to do, and except such officers, agents, and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article, or in such territory as may be added to this reservation for the use of said Indians, and henceforth they will and do hereby relinquish all claims or right in and to any portion of the United States or Territories, except such as is embraced within the limits aforesaid, and except as hereinafter provided.”
Without the permission of the tribe, these private contractors cannot even “pass over” their land. The various state and local police that were there in 2016 to protect those contractors were there unlawfully because they were not given permission by the tribe. State and local governments have no authority, whatsoever, on Sioux land.
However, the Sioux did agree to allow “officers, agents, and employees of the government,” where government is clearly referring to the federal government of the United States, may enter upon the land in discharge of their duties, which may include the creation of the “utility” of the pipeline, if it is approved by the commission from Article XI.
So no private contractor may do any of the construction – we are basically limited to the Army Corps of Engineers building such a section of the pipeline which crosses Sioux lands or federal contractors might possibly fit the definition of “agents.” That means that the federal government must be funding the construction of the pipeline through Sioux lands, not a private company. The use of federal funds, especially that large, to create such a pipeline for the benefit of a private corporation in which the President used to hold shares and members of his Administration still do is likely to create a massive scandal that would define the Trump presidency. Clearly, it is much easier to simply build around the Sioux, not through their lands.
Those Who Enter Unlawfully
Article I of the treaty also lays out punishments which must befall those who unlawfully enter to do harm, as the contractors and local and state police did in 2016. President Obama has utterly failed to uphold this part of the treaty in his attempt to pass on the scandal.
“If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.”
If private contractors enter the Sioux land to construct the pipeline, or if the state and local police once again reenter and assault members of the tribe and those permitted by the tribe to be there, President Trump is legally required to prosecute them: trespassing, assault, battery, etc. If protests break out during a lawful construction of the pipeline, they are allowed to be there, police are not. The laws of the United States do not apply to the Sioux on their own land – the laws of the Sioux apply.
Essentially, the United States is a foreign entity which forced the right to build over Sioux land through war. How would Donald Trump feel if Mexico decided it needed to build some project across the United States and the the Police of Baja started shooting American protesters with rubber bullets to get them to stop protesting the contempt for America’s national sovereignty? The only difference is that Mexico hasn’t forced that right from the United States through war.
America’s Honor is at Stake
While we have a long history of not holding up to our word, particularly with American Indians – perhaps most notably when President Andrew Jackson declared that he didn’t care if the Supreme Court sided with the Indians prior to the Trail of Tears, that is not an excuse to continue with a dishonest trajectory. If President Trump wants to make America great, truly for the first time ever, that must include our word being believable. A great America must uphold the obligations it has made, especially those it has made through treaty.
“John Marshall has made his decision; now let him enforce it! – Andrew Jackson prior to commencing the Trail of Tears”
[Featured Image by Scott Olson/Getty Images]