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Memo to Briefcase Warriors: Be Bold!

As of this writing, the protectors have succeeded to an extent, though the pressure against them and arrests continue. The aptly named Dakota Access Corporation—it wants to access Dakota Territory—has not yet given up.

While the protectors placed themselves in the path of the pipeline, Standing Rock undertook a parallel effort in the American legal system—asking a U.S. court to issue a preliminary injunction to stop construction of the pipeline. That effort has so far not been successful. .

The Standing Rock lawsuit presents an opportunity to critique how Indian Nations represent themselves in legal battles. In this case, the picture looks depressingly familiar. Standing Rock was nowhere near as strong in litigation in the U.S. legal arena as they and the other protectors were on the ground.

The Motion for a Preliminary Injunction—which the federal court denied— focused almost solely on a U.S. statute about historic preservation. The motion barely mentioned Treaty rights and did not challenge the notion that the U.S. Congress can override treaties. International law—especially the United Nations Declaration on the Rights of Indigenous Peoples—was not mentioned at all.

The Complaint was somewhat broader than the motion. Though it mentioned the Treaty (only four times) it did not mount a vigorous defense of Treaty rights; and it presented the threat to water in terms of U.S. statutes rather than Indigenous Peoples' rights.

Some might say the fault lies with Standing Rock's choice of legal counsel: Earthjustice, an environmental law organization based in Seattle. But the Earthjustice motion and complaint actually follow a familiar pattern we see in Indian cases, where lawyers for Indians not only fail to defend Native Nations against American claims of "overriding sovereignty," but actually embrace the "domestic dependent" status and "plenary power of Congress" doctrines decreed by federal Indian law.

We have seen this pattern in so many cases that it now appears to be the “normal” way to litigate an Indian case. Lawyers have been trained inside the figurative box of federal Indian law thinking and cannot seem to find their way out. Though they are sometimes called "briefcase warriors," these lawyers repeatedly fail to do battle with the most basic parts of their adversaries' attacks on Indigenous Peoples' existence and rights.

The adversaries of Indian Nations don't hesitate to dig into the fundamentals. When states and corporations—not to mention the U.S. itself—attack Indian Nations, they dredge up all the dominating doctrines of federal Indian law. A true warrior would respond at that same basic level, challenging the domination rather than either ignoring it or pretending that U.S. doctrines of domination somehow "protect" Indians.

The way litigation works—arguments in front of a judge—means the lawyers have the primary responsibility to set out the legal and factual issues. If the lawyers don't raise an issue, that issue doesn't exist. The judge may try to ignore or sidestep issues the lawyers do raise, but those issues remain for an appeal and as part of the ongoing development of the case.

Standing Rock as Protector and its supporters have made it clear they are defending their lands, waters, and sacred sites and places. They invoke their Treaty rights and they call international attention to the conflict. The lawyers didn't adequately support them by putting forward the most powerful arguments.

Anyone who understands federal Indian law will immediately see something missing in the judge's decision denying the preliminary injunction for Standing Rock. The third sentence states, " This case … features what an American Indian tribe believes is an unlawful encroachment on its heritage." Heritage? What about water? Land? Treaty? Self-determination?

On the second page, the judge emphasized the narrow legal argument brought by Standing Rock lawyers: "The Standing Rock Sioux now seek a preliminary injunction only on the alleged violation of the NHPA [National Historic Preservation Act, a U.S. statute]. … It bears noting that the Tribe does not press its environmental claims… Nor does it seek a preliminary injunction to protect itself from the potential environmental harms that might arise from having the pipeline on its doorstep. Instead, it asserts only that pipeline-construction activities – specifically, the grading and clearing of land – will cause irreparable injury to historic or cultural properties of great significance."

The judge didn't ignore any Treaty or other issue raised by Standing Rock. The word "treaty" appears only four times in the Standing Rock Complaint and does not appear even once in their motion for a preliminary injunction!

We cannot know what the judge might have ruled on other, wider, deeper issues. He was not asked to think about them. We do know that the rules of procedure will block Standing Rock lawyers from raising issues on appeal that they failed to raise in the lower court. What kind of legal “warrior” makes such a feeble effort?

Luckily for the record and the case going forward—though not for the preliminary injunction—another "briefcase warrior" intervened in the overall litigation, on behalf of the Cheyenne River Sioux Nation.

In their Motion to Intervene, Cheyenne River asserted, "Even though Standing Rock and Cheyenne River may have identical claims and currently agree on their litigation strategy as to the Motion for Preliminary Injunction, the parties remain free to change their strategies throughout the course of the litigation to best suit their individual sovereign nations. … The Standing Rock Sioux Tribe cannot adequately represent the Cheyenne River Sioux Tribe’s interests."

The word "treaty" appears thirty-four times in the Cheyenne River Complaint. Moreover, following good litigation practice, the complaint provides multiple lines of argument. Thus, Cheyenne River did not throw away whatever leverage they may have with the court under federal Indian law doctrines. The word "trust"—as in "trust doctrine," the notion that the "superior" U.S. sovereign of the U.S. owes a duty to the "subordinate" Indian sovereign—appears thirty-six times.

The Cheyenne River approach, however, still fails to assert a fundamental right to self-determination on behalf of Indian Nations. And it fails to raise international standards such as the United Nations Declaration on the Rights of Indigenous Peoples. In short, though more robust than Standing Rock, Cheyenne River leaves arguments off the table and thus out of play.

The relationship between litigation and action on the ground has long been a focus for discussion among lawyers and activists. Some say litigation can never be effective without action on the ground. Some say litigation provides an organizing focus for action. Some say activism without litigation has no focus.

Whatever view one has about the role of litigation in relation to action, one thing should be clear: litigation that fails to raise all available issues or that acquiesces in the opponent's basic premises and claims provides no real support and no enduring focus. More dangerously, bad litigation may discourage action and undermine long-term prospects.

To the extent that lawyers may be warriors, they need to have both strategic and tactical consciousness: a clear sense of the ways a specific case tactic works toward an overall, long-term strategic aim. Unfortunately, this does not seem to happen in much Indian litigation.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhii?na 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.