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Donius, Dakota Access Pipeline and The Paris Climate Accords: Ideas to Protect Our Homelands

The Army Corps of Engineers did not do all their homework before approving Dakota Access Pipeline permits according to a U.S. District Court Judge.
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(Kinda) Quick Story

A few years ago, in my former life as an attorney, I had the opportunity to be a part of a federal court case involving a stanky mushroom farm on a Native Nation’s lands. The case was called Donius v. Mazetti and it involved some shady white folks who owned land on the Rincon Band’s Reservation in Southern California. It was a shakedown. Those shady white folks were looking for a big payday from the Rincon Band—make the Band pay them to get off their land—and so they decided to do the most offensive, foul use of the land that they could. They put a mushroom farm on the rez. Disgusting. Smelled like Mike Pence’s breath.

A mushroom farm? Really?

At the time, I was working for a dude named Scott Crowell. I oftentimes refer to Scott as “The Only White Man That I Could Work For.” I don’t like to give white people too much credit for working within Native communities—I generally think that Native people can figure out our own solutions. That said, Scott is legitimately a very smart cookie and understands utilizing the law (this is not “Indian law,” mind you—“Indian law” is really white law that just happens to affect Native communities) aggressively to help assert sovereignty like nobody else that I’ve seen, Native or non.


In this case, there was so much posturing on both sides as the shady folks who created the mushroom farm attempted to extort the Rincon Band. It didn’t work. Fortunately, the Rincon Band was very savvy, and so with Scott’s assistance they set up a very elaborate and comprehensive environmental law on the reservation. That environmental law required all businesses—Native and non—to file with the Band and do some cursory environmental review. See, the racist ass Supreme Court decided some years ago that Native communities couldn’t protect themselves against non-Natives who do foul stuff on our homelands. No, our Nations are divested of sovereignty over “relations between an Indian tribe and nonmembers of the tribe.” That’s why, many times, our homelands house so many white criminals, drug dealers and sexual offenders. Just being honest. It’s also why there are so many environmental travesties that happen within our communities.

But there is an exception to that racist and white supremacist law. It is called the Montana Two Exception. This exception says that “a tribe may exercise ‘civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” That sounds cool, but those racist courts have largely decided that this exception doesn’t mean much. Instead, Native communities have been largely helpless against non-Native scumbags. By the way, many lawyers that work for Native communities have believed the racist garbage from the courts and will not pursue cases based upon this Montana Two Exception.

That’s bad. And weak.

Anyway, Scott’s firm (I was a lowly associate, doing research) pursued this case even though many so-called advocates of tribal sovereignty felt that we should not do so. Our Nations have always had laws and rules and regulations, but they have not always been written down. Therefore, Rincon built up its body of environmental law and consistently required every single business­—including those owned by the Tribe—to submit to it. Long story short, Rincon Band won and their decision to protect their Native lands was validated, if it needed to be. It was a powerful victory that only came because of synthesis and coordination.

Why Did I Tell You That (Kinda) Quick Story?

Native Nations within the United States and Native people currently have an opportunity to assume our proper position as the authorities on the Earth. See, there is a strange confluence of circumstances happening right now that can show Native environmental brilliance but also Native Nations’ legal authority. The brilliance is always there but the legal authority is not. A little over a week ago, U.S. District Court Judge said that the Army Corps of Engineers did not do all of their homework before it approved permits to complete the Dakota Access Pipeline. That’s positive. Unfortunately, a few weeks ago the idiot President Trump withdrew the United States from the 2015 Paris Climate Agreement. The Agreement is an effort to curb global warming by reducing greenhouse gases and other air pollutants.

That is bad.

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So while the “domestic, dependent Nations”—Native Nations—are fighting like hell to lower carbon emissions and global warming, the United States is opting to become an unabashed environmental scofflaw. Sure, the U.S. has always been kinda nasty and helped to create a lot of the greenhouse emission problem that we have now. However, in fairness many Americans did not know the long term effect that carbon emissions would have.

But now we know. And still the U.S. has doubled down on nasty behavior. By leaving the Paris Accords, the U.S. has become the person who throws trash down on the ground three feet from the garbage can and with a “No Littering” sign right in front of her/him.


Yet, some States have come together to create the “Climate Alliance” to be the conscientious objectors to the United States’ nastiness. Those States ostensibly say “Yes, the United States is nasty. But WE do not have to be nasty with it. We are going to push powerful and pro-active laws that will protect our environment IN SPITE of the United States’ nastiness.”

And Native Nations can and should do the same. Not only will it help to separate and hopefully point out to foreign nations that not all of the US is nasty, but it could also help insulate those nations from disgusting companies like the mushroom farm or the Dakota Access Pipeline.

Yes, when Native Nations create laws that subject everyone to environmental review on our homelands, those laws become the first line of defense against pipelines and mining operations. Are they a fix-all? Not at all. These companies are greedy and will exploit the Earth by any means necessary. However, these environmental laws will add another layer through which these companies will have to get through. Protests and petitions after-the-fact are cool, but why not add another layer of protection to our homelands?

We do not have to carry the United States’ burden for being disgusting. Native Nations and Native people are the first stewards of this land. It is only right that we formalize that relationship by proactively passing laws and legally protecting our lands as well.

Gyasi Ross, "Thing About Skins," Editor at Large

Gyasi Ross, "Thing About Skins," Editor at Large

Gyasi Ross, Editor at Large

Blackfeet Nation/Suquamish Territories

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