There comes a time when history begins to repeat itself. The Indigenous occupation around the Standing Rock Sioux Indian Reservation is such a time. While there are many differences between the occupation of Wounded Knee in the early 1970s and the Sacred Stone encampment, there are many common threads. Both occupations involved the theft of Native rights by corrupt officials, and both resulted in an unnecessary use of police force and infiltrators to threaten protesters. The more recent occupation of the Malheur National Wildlife Refuge by white militants stands in dark contrast to the two Native movements, showing the clear bias that the American justice system has against Native people. Combined, all three events provide lessons for today.
Standing Rock Sioux Tribe, DAP and the Lack of Environmental Review
The Standing Rock protests are targeted toward the unconscionable acts by the Dakota Access Pipeline company to force an oil pipeline through aboriginal lands without tribal consultation or consent, risking the Tribe’s irreplaceable supply of drinking water, and damaging important cultural resources. At issue is the practice of industry colluding with corrupt government officials in Congress and federal agencies to streamline the process required to permit the siting of oil and gas pipelines by exempting approvals from all environmental review.
The oil and gas industry has worked secretly for decades to create carve-outs in legislation designed to protect the human environment. Fossil fuel conglomerates lobbied congress for exemptions from statutes such as the National Environmental Policy Act (“NEPA”) and its’ implementing regulations. In enacting NEPA in 1970, Congress recognized that nearly all federal activities affect the environment in some way. The NEPA mandated that before federal agencies make decisions, they must consider the effects of their actions on the quality of the human environment.
But the oil and gas lobby, through decades of political campaign contributions and pressure lobbying, remains exempted from some parts of NEPA altogether. Generally speaking the NEPA requires an environmental assessment or environmental impact statement for projects that involve a “federal undertaking”. However there are some express exceptions to that requirement, called “categorical exclusions” where the undertaking will not have an effect on the environment, such as there being no actual change in the land’s use.
More recently, instead of studying the environmental effects of certain projects, some federal agencies, including the Army Corps of Engineers (“Corps”) issue what is called a “nationwide” permit. The Dakota Access Pipeline (“DAP”) fell under a nationwide permit for oil and gas pipelines that exempted it from environmental review. Tribes and environmental groups argue that activities permitted under a nationwide permit will often have significant impacts on the environment and that the Corps has no evidence to conclude otherwise. They argue that the permits are unlawful because they violate the requirements of the Clean Water Act, and should not be exempt from NEPA review. But the Corps has so far allowed the DAP to proceed even without final permits needed for the pipeline to pass under the Missouri River.
#NoDAPL and Leonard Peltier- The Long Road Here
As has always been the case, oil, gas and mining industries were all vying for access to Indian lands on February 27, 1973, when about 300 Oglala Lakota and AIM activists went to the hamlet of Wounded Knee for a protest. It became a 71-day armed siege, with the FBI cordoning off the area by using US Marshals and later National Guard units. The protesters demanded a revival of treaty negotiations to correct relations with the federal government, the respect of their sovereignty, and the removal of Tribal Chairman, Dick Wilson from office.
In June 1975, one Indian man, Joe Stuntz, and two FBI agents were killed near Jumping Bull Ranch, which was surrounded by more than 100 FBI agents, US Marshals, military personnel and local ranchers. Three AIM members were eventually indicted for the killing of the FBI agents: Darryl Butler, Robert Robideau and Leonard Peltier. Darryl and Robideau were tried in 1975 and acquitted for acting in self-defense. After extradition from Canada, Peltier was returned to the U.S. and tried separately. Proceedings from the Robideau and Butler hearings were not permitted into the record, while the evidence used to convict Peltier included a planted shell casing from ammunition not used during the shoot-out, and uncorroborated testimony. Peltier was convicted in 1976 and is serving two consecutive life sentences, making him a widely recognized American political prisoner. Joe Stuntz's murder was never investigated.
In contrast to the armed siege at Wounded Knee, thousands of Native people, have joined in solidarity with the Standing Rock Sioux Tribe, with support from people around the world, and have established an encampment to stage peaceful protest. They are protesting against the oil pipeline being built through lands that were carved out as Indian Lands in the Great Sioux Nation Treaty of 1851 – and polluting their water supplies. The encampments and solidarity between Indians of all tribes, although very different, is reminiscent of the occupation of Wounded Knee in one important way: it is bringing tribal people from many Native Nations together as a united front. The water protectors assert that the United States government has failed to properly respect 1) the rights of tribal governments, 2) irreplaceable tribal cultural resources and 3) vital natural resources, namely clean drinking water.
Contrast with Malheur National Wildlife Refuge Occupation
On October 27, 2016, the same day that 141 people were arrested in their ongoing protest against the Dakota Access Pipeline, seven armed occupiers of Malheur National Wildlife Refuge in Oregon were acquitted of all charges in a trial that lasted several months. The sharp contrast between the two events has left many Native and non-Native Americans very frustrated by what is viewed as biased and unfair treatment of Native people. Led by Ammon Bundy, a prominent proponent of non-governmental militias and the “sovereign citizen movement,” armed militants seized the headquarters of the Malheur National Wildlife Refuge in Harney County, Oregon. The siege lasted a little over one month, and the conclusion was hastened with the killing of one of the group’s leaders, Robert "LaVoy" Finicum.
Throughout the occupation, law enforcement stayed away from the refuge, choosing only to set up a perimeter around it. On January 2, 2015, the militia’s leaders claimed to have 150 armed members at the site, although media reported much lower figures. The occupiers ransacked tribal cultural sites, defecated in a burial mound, and destroyed federal property, but they were found not guilty of all charges against them.
But Indians Were There First
“We don't claim to be victims, but we were,” Jarvis Kennedy, councilman with the Burns Paiute Tribe in Harney County, Oregon, where the Refuge is located, told NPR after the verdict. "What if I did that with my native brothers and sisters, and we went and occupied something, do you think we'd be let running around free, going in and out of it? … No, we'd be locked down."
The Burns Paiute Tribe includes the descendants of the original people of the Malheur Reserve, which was formerly known as the Malheur Indian Reservation. When the Bundys claimed that the land should be turned over to ranchers, the Burns Paiute Tribe and others were furious. Archaeological research within the Harney Basin region, including near Burns, Oregon, demonstrates that it likely was home to Native Americans for about the past 16,000 to 15,000 years. The Malheur National Wildlife Refuge Headquarters itself, where the occupation took place, lies within a major archaeological site that was once a settlement used by Paiute tribes seasonally for thousands of years until historic contact.
The Malheur Indian Reservation was established for the Northern Paiute from 1872 to 1879. The federal government "discontinued" the reservation after the Bannock War of 1878, under pressure from European-American settlers who wanted the land, and the internment of more than 500 Paiute on the Yakama Indian Reservation.
The Paiute people were forced to leave their Malheur Indian Reservation after joining the Bannock people in Idaho in an uprising, the Bannock War, in 1878, and were resettled in Yakama Reservation, 350 miles away in southeastern Washington. When they were allowed to leave Yakima in 1883, some of the Paiute people moved to either the Warm Springs Reservation or Nevada. Others returned to the Harney Basin and in 1972, acquired title to 771 acres of land and created the Burns Paiute Indian Reservation, just north of the city of Burns, Oregon.
When the Bundys occupied the Malheur Reserve, the Burns Paiute had no choice but to sit by, as the occupiers vandalized their sacred areas, trampled burial sites, and shot at ancient petroglyphs, which many conveyed in media reports. The occupiers demanded that the land be turned over to the state, but before it was part of the state, it was home to the Paiute.
Back to Leonard Peltier
Leonard Peltier has been incarcerated since 1976, forty long years, for his role at Wounded Knee, and he has denied the allegation that he murdered the FBI agents. Ammon Bundy walked away with an acquittal and his co-conspirator joked that he was going to “go home and have a beer”. The water protectors must be smarter than this system. If they fight, it will hurt, but if each individual also chooses to pray, perhaps others will join in the cause. One can hope that the peaceful protest will continue to bring awareness to the urgent need to protect water from unnecessary contamination by large corporate interests, and also bring the Native viewpoint into mainstream discussions.
As a Native person myself, I can tally these wrongs and the balance is far askew. There are three things that President Obama can do on his way out of the White House: 1) he can find a way to withdraw the nationwide permit for pipeline construction and bring it back to lawmakers to fix, consulting with Tribal governments in the process; 2) stop the construction of the Dakota Access Pipeline altogether; and 3) do what Bill Clinton should have done, and pardon Leonard Peltier.
Michelle L. LaPena is a member of the Pit River Tribe and a mother of three. She is an Indian law attorney, and has owned and operated a boutique Indian law practice since 2006. She has lectured at university levels on topics related to California Indians and federal Indian law for over two decades. In addition, she has published a number of law review articles, essays and non-fiction articles on topics relative to her work with California Indian tribes.