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Dakota Access Pipeline, Part 3: Legal Encounters of the Third Kind

Click here if you missed Part 1; click here if you missed Part 2.

Some people who oppose the Dakota Access Pipeline (DAP) say they oppose eminent domain powers—the very existence of eminent domain powers. This is nonsense. Without eminent domain, one landowner who does not agree about the community’s needs or is simply greedy can stop a school, a library, a fire station, a road, a bridge—or, yes, a pipeline.

Lots of materials move by pipeline and as we should know by now, pipelines leak. How much they leak depends on the rules set up to regulate them and how diligently the rules are enforced but, regardless of that, pipelines have to be compared to rail and trucking as methods of shipment. If the real objective is simply to leave the contents of the pipeline in the ground, then we are seeking moral clarity from a dishonest premise. That is a fool’s errand.

Climate change is real and it is a real emergency, but those who choose not to deny the science may reasonably differ over what should be done. At this time, the support for leaving oil and gas in the ground is minimal. Coal is not being mined because the record low prices for natural gas destroyed the market, making the cleaner fuel also the cheaper fuel. Candidate Donald Trump has promised to re-open the coalmines but has not said who will buy the coal.

The Dakota Access Pipeline issue is not about eminent domain, climate change, or even safety. The bottom line is easier to see and harder to remedy for people of the utmost good will. The very practical and obvious issue underlying the fight over the DAP is the immorality of taking away from another people the right of self-determination—which includes eminent domain. A subsidiary issue is whether a colonized people can get fairness in a colonial court.

Chattel slavery was the Original Sin of the U.S. and the U.S. has paid and continues to pay a steep price. The Civil War cost more lives than any other conflict in the nation’s history, but the curse continued though the Black Codes, the Jim Crow laws, and the great northern migration that resulted in ghettoized cities.

Why is slavery the Original Sin and not the prodigious amounts of theft and homicide visited upon the peoples using this land when the settlers arrived? There was no United States before the Constitution and that document made the deal with slavery that caused a historical parade of horribles that is ongoing. Indians were simply ignored except for two provisions that assumed separateness.

The Indian Commerce Clause conferred on Congress the power to regulate commerce “with the Indian tribes.” This excludes the states absent a federal delegation of some kind but, more important, is assumes the United States is over here and the Indian tribes are over there.

The other mention of Indians excludes “Indians not taxed” from the population count that apportions Congress. A logical argument could be made that “Indians taxed” might be voters and therefore citizens, but both the practice and the court decisions said otherwise. Even if submitting to taxation could somehow confer citizenship on an Indian (to use the word “naturalize” seems absurd) that would not change the status of Indian tribes.

The United States made treaties with Indian nations until 1871. You can’t make a treaty with yourself or a political subdivision of yourself.

The Indian nations didn’t get set apart by the scriveners of the Constitution. The Indian nations were apart, and every instance of integration has been unilateral on the part of the settlers. Having made us involuntary citizens, the colonial government is in no position to claim that the Constitution is a social compact to which we are parties.

African-Americans started out with very similar status, and the Constitution managed to protect slavery without uttering the word. The fate of slaves in the apportionment clause was to enhance the representation of their owners by 3/5 of a person. After the Civil War, the former slaves made a belated entry into the Constitution by way of the Thirteenth, Fourteenth, and Fifteenth Amendments.

After the Civil War Amendments, Indians remained outside even when the plain language would have brought them inside. The right to citizenship by birth would seem to make Indian babies born after ratification citizens, but the courts held otherwise.

Indians finally got citizenship not by the birthright in the Fourteenth Amendment but rather by a federal statute in 1924. The law did not require Indians to apply for citizenship or to give up citizenship in their tribal nations. Therefore, once more, there was no assent to be bound by U.S. law.

The Standing Rock Sioux, opposing a pipeline across their treaty lands that is apparently lawful and constitutional---and if it is not can become so by doing the procedures for approval in a way that recognizes tribal rights---are engaged in a legal encounter of the third kind.

This is not an ordinary application of an ordinary law (first kind) or a claim that the law authorizing the pipeline is unconstitutional (second kind). The Indians do not claim their right to safe drinking water as U.S. citizens. They claim it as human beings, fellow denizens of Mother Earth who have certain inalienable rights based on that fact alone. You know, like Thomas Jefferson said when claiming the colonies had a right to a separate political existence from England?

The Indian nations already had a separate political existence from the United States and it was recognized in the Constitution. A law, valid or invalid, never revoked that free and independent existence and it was never extinguished by conquest. Most of the Indian nations either never had a war with the U.S. or the war ended with a treaty that recognized their continuing free and independent status.

A legal encounter of the third kind can be resolved several ways.

1. By application of the customary doctrines called “conflict of laws” if there is a tribunal with the authority and the willingness to hear the case and render a judgment.

2. By mediation, if both parties can agree on an honest broker and that they will abide by the decision.

3. By military force, which is unlikely to prevail against the colonial state that spends more on “defense” than the entire rest of the world combined.

4. By militant nonviolence, refusing to comply with orders that lack moral standing because entered by a process that operates without the consent of the governed. Some say militant nonviolence works by awakening the moral core of the adversary. Others say it works by making oppression more costly in the political sense than freedom.

Any attempt to use military force against the most powerful military in the world would quickly degenerate into terrorism.

Any attempt to use militant nonviolence will cause the government to trot out the label of terrorism for the purpose of moving public opinion and gaining access to law stripped to the barest of procedural niceties.

We cannot control what they say but we can control what we do. The stakes are high for the Standing Rock Sioux but they are just as high for all Indian nations that refuse to give up their free and independent status.

It is not up to me to say whether the Standing Rock Sioux and therefore the rest of us have our backs to the wall. If we do, our duty is clear. Send supplies. Talk it up. Answer the bell. Legal encounters of the third kind are rare, but the next one may be yours.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.