Updated:
Original:

The Cerebral Battle of DAPL: What if Standing Rock Retained TigerSwan?

A lesson learned from Tigerswan: The defense of Native sovereignty demands more than understanding of U.S. federal Indian law.

"It is often the perception of local citizens that multinational businesses arrive in their countries and rob them of natural resources and local revenue without adding any value or contributing to the economy. This type of practice leaves the host nation community with no vested interest in the wellbeing or success of [the] project. So, how do you win over the locals and get them to buy into [the] project emotionally and financially? Demonstrate outwardly that you are excited to be there to assist in the community. If you can do this, you will be less likely to face resistance or opposition."

The foregoing analysis and advice appears under the heading, Gaining Support Is Key to Overseas Success, an article by James Reese, CEO of TigerSwan, the company recently exposed for using anti-terror methods in its work to protect Energy Transfer Partners' Dakota Access Pipeline (DAPL) at Standing Rock. The article continues, "Without the support of the local community, you are likely to spend more on long-term security to combat risks such as protests, attacks, and theft at your project site. At TigerSwan, we often are called in to fix a problem when there is already an issue. Ideally, we would like to provide the tools and support to prevent these issues in the first place."

In fact, DAPL retained TigerSwan precisely when there was "already an issue"—when the multinational corporation pushed the pipeline into the local Native Nation community and encountered pushback. As documents assembled by The Intercept show, "the brutality of private security officers provoked widespread outrage concerning the pipeline project. On Labor Day weekend of 2016, Democracy Now! captured footage of pipeline security guards attacking peaceful protesters with dogs. In the aftermath of that incident, Energy Transfer Partners turned to TigerSwan to oversee the work of the other security companies contracted to protect the pipeline."

[text_ad]

TigerSwan presents a schizophrenic face to the world. On one hand, as in the public relations article quoted above, the CEO recommends "active, soft security solutions such as community engagement [that] are not only cost effective, [but] also enhance the corporate reputation of companies working overseas." He adds, "By employing these best practices, you can change the perception of foreign business and establish goodwill in new communities. With minimal costs to you and your company, you can effectively establish rapport [and] support the community." TigerSwan describes its logo as "two majestic animals…in a Yin-Yang symbol to show the range of operations [the] company would possess with grace, humility and strength."

On the other hand, as demonstrated in its actions on the ground at Standing Rock, TigerSwan deploys "hard" military tactics and refers to the community as an armed conflict zone. In reports to its DAPL client, TigerSwan described the water protectors as "terrorists," and the camps as a "battlefield," and asserted TigerSwan could "develop and dictate the battlespace." TigerSwan displayed frustration with local law enforcement officials who didn't cooperate with the company's agenda, including North Dakota's Private Investigation and Security Board and county sheriffs.

The Intercept describes TigerSwan as "a company with a deep background in counterterrorism operations." Reese's own description of his company says, "TigerSwan … has extensive knowledge and knows how to engage local communities to help navigate the diverse cultures across the globe and provide appropriate recommendations for optimal security solutions in foreign regions.”

Many people think of Standing Rock as an "American" location, so why did DAPL call in a company specializing in security in "foreign regions" and "companies working overseas"? The answer involves some interesting speculation.

Although U.S. federal Indian law denies the "foreign" status of Native Nations, the denial was questionable at its inception. In an 1831 case, Cherokee Nation v. Georgia, the U.S. Supreme Court "doubted" that Native Peoples could be "denominated foreign," and said they "may…perhaps, be denominated domestic dependent nations." The court said Native Nations related to the U.S. like "a ward to his guardian." The key, the court said, was that Native Peoples "occupy a territory to which we assert a title independent of their will"—based on the doctrine of "Christian discovery" announced in the court's 1823 decision, Johnson v. McIntosh.

The doctrine of Christian Discovery was also intellectually and legally troubled from the start and has only gotten more troubling. The Johnson decision itself referred to the doctrine as an "extravagant…pretension," "opposed to natural right," and only "perhaps…supported by reason"—yet it imposed it as an article of faith in U.S. law because "it [is] indispensable to that system under which the country has been settled." In 2014, the United Nations Permanent Forum on Indigenous Issues characterized the doctrine as "racist, scientifically false, legally invalid, morally condemnable and socially unjust," and said it "should be repudiated in word and action."

Standing Rock's legal response to DAPL avoided challenging "Christian discovery" and focused instead on trying to come under U.S. law for environmental and historical protection purposes. In doing this, Standing Rock adopted a posture of acquiescence to the "extravagant pretense" of U.S. claims to own Native lands and behaved as a "ward to his guardian." Many water protectors, however, did raise sovereignty issues, saying DAPL was an invasion of Native territory.

TigerSwan arrived in this mix prepared to respond to assertions of Native sovereignty in the same way it responds to what it calls "culturally dynamic, high-threat, and politically-sensitive areas around the world"—with "a holistic and asymmetric network of capabilities and services for our clients, enabling Peace of Mind." In another article about the company, CEO Reese said, "We are approached by many companies who operate in dangerous parts of the world, as well as right here in the U.S., and work to better understand the threats that they may encounter. We constantly strive to bring our international clients peace of mind through solutions during uncertain times."

A deep irony emerges here: While the U.S., North Dakota, and Energy Transfer Partners all ignored the possibility that Native sovereignty might be a relevant factor at Standing Rock—and as Standing Rock lawyers ignored the doctrine of Christian discovery—TigerSwan took the possibility seriously. Notwithstanding TigerSwan's invocation of "soft security" and "community engagement," the company's military surveillance tactics put it in the posture of a confrontation with a sovereign power.

[text_ad]

TigerSwan's missions for its global corporate clients aim at protecting their economic interests against "uncertainty," including uncertainties arising from Indigenous Peoples resistance. As CEO Reese explained to Dan Rather ("Dan Rather Interviews James Reese," April 11, 2012), the missions require more than financial calculation; operatives must engage in deep due diligence: "They study, they research, they understand the environment where they're in, they're always conducting battlefield operational prep … it really is master's and doctorate level work and most people don't realize how cerebral an operation [this is]."

A lesson learned from TigerSwan: The defense of Native sovereignty against the "uncertainties" of nation-state and corporate challenges demands deep due diligence, starting with understanding the "cerebral environment" of U.S. federal Indian law—a set of ideas intended to subjugate Native Peoples—and extending to strategic global surveillance of forces arrayed against Indigenous Peoples. Imagine if Standing Rock had retained TigerSwan to defend Native territory and economic interests!

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.