It is outrageous to see the photos of people injured by North Dakota’s brutal police actions at Standing Rock. The police were using a water cannon on Standing Rock water protectors in sub-zero weather potentially subjecting them to life-threatening hypothermia. They were firing on the people with rubber bullets, and spraying them with mace. 167 people were reportedly injured in one night, several seriously. A 21-year-old woman, Sophia Wilansky, was horribly injured when, a number of witnesses said, she was hit in the arm by a concussion grenade thrown by anti-water protector forces. Her doctor says she may need 20 surgeries and may still lose her arm. One young horse was killed as well.
Several people reportedly ended up with severe head wounds from police actions on behalf of corporate interests related to the Dakota Access Pipeline. One thing is certain: Such dehumanizing police actions are not in keeping with the pledge of “utmost good faith” that the U.S. Continental Congress and the U.S. Congress made toward our Native nations back in 1787, 1789, and 1861.
On Friday the thirteenth in July of 1787, the Continental Congress of the United States adopted the Northwest Ordinance. The third Article of that Ordinance states, “The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress…”
Someone ought to inform Governor Dalrymple of North Dakota, who slyly had the pipeline path moved away from his own neighborhood, that Congress has not authorized any just and lawful war against the Oceti Sakowin (the Seven Council Fires of the Great Sioux Nation). His heartless actions within the treaty-recognized territory of the Oceti Sakowin therefore constitute the utmost bad faith, and are entirely unjust and unlawful.
Make sure you think of the U.S. Congress’s pledge of “utmost good faith” toward the Indians when you see the pictures of the police causing bodily harm by spraying Native and non-Native people with water hoses and mace in subzero temperatures, and engaging in other oppressive and terroristic acts.
When you see the bruised bodies and swollen faces of the water protectors doing their best to defend the waters of the Missouri River, which supplies millions of non-Native people, from an oil pipeline, think of the “utmost good faith” provision of the Northwest Ordinance. When you see those and other highly disturbing images, think of the U.S. Congress’s pledge that the Indians’ “in their property, rights, and liberty” “shall never be invaded or disturbed.”
Congress’s very first act under the new United States Constitution of 1789 reaffirmed the Northwest Ordinance of 1787. That ordinance is part of the foundation of the United States. The Northwest Ordinance serves as the constitution for all new U.S. territories or colonies, including the pledge that the Indians’ “lands and property shall never be taken from them without their consent.” Seventy-four years after the initial adoption of the Northwest Ordinance, Congress included that “utmost good faith” pledge in the 1861 act to establish the Territory of Dakota.
A key provision of the Dakota territorial act of 1861 follows Article III of the Northwest Ordinance of 1787. It’s the provision that no Indian land shall become part of the Territory of Dakota until the Indians have given their consent in a treaty with the United States. The Oceti Sakowin has never given its consent for that to happen.
The Oceti Sakowin (Seven Council Fires of the Great Sioux Nation) has the 1851 and 1868 treaties with the United States. Those treaty documents recognize the territory of the Oceti Sakowin (the Great Sioux Nation) which has not surrendered, ceded, or relinquished its territory to the United States.
Let me repeat: United States organic law requires that the Oceti Sakowin must first give its permission in order for the Oceti Sakowin territory to become part of the U.S. territory of Dakota. Such permission from the Indians (Native nations) is required before the territory of the Oceti Sakowin could ever become part of the state of North Dakota or the state of South Dakota. The territory of the Oceti Sakowin has to this day never become part of the states of North and South Dakota!
The North Dakota police brutality perpetrated against the peaceful water protectors at Standing Rock calls to mind Article VI, Section II, of the United States Constitution. That language says that “treaties made and which shall be made [by the United States], shall be the supreme Law of the Land, the judges of the states thereby bound,” and anything in the U.S. Constitution to the contrary notwithstanding. It is important to note that Indian nation treaties with the United States are treaties between independent nations.
Now let’s summarize the aforementioned elements:
1) The territory of the Oceti Sakowin has never become part of the U.S. Territory of Dakota, or part of the states of North or South Dakota. Why? Because the Oceti Sakowin has not given its consent ion a ratified treaty for that to happen.
2) The 1851 and 1868 Treaties of Fort Laramie recognize the separate and rightfully free nation and country of the Oceti Sakowin; those treaties are the Supreme Law of the land for the United States, and the judges of the states of North and South Dakota are bound thereby.
3) Without Oceti Sakowin consent, North Dakota Governor Dalrymple and the police forces of North Dakota have no lawful jurisdiction within the boundaries of the 1851 and 1868 Fort Laramie Treaties, which to this day, for the above stated reasons, is still the rightful territory of the Oceti Sakowin.
What has the United States court system employed in an effort to deflect attention away from the Northwest Ordinance, the Supremacy Clause, and the act to establish the Territory of Dakota? Here’s an argument expressed by a United States judge in 1975:
It cannot be denied that official policy of the United States until at least the late 19th century was impelled by a resolute will to control substantial territory for its westward-moving people. Whatever obstructed the movement, including the Indians, was to be and was shoved aside, dominated, or destroyed. Wars, disease, treaties pocked by duplicity, and decimation of the buffalo by whites drove the Sioux to reservations, shriveled their population and disemboweled their corporate body. They were left a people unwillingly dependent in fact upon [dominated by] the United States. (United States v. Consolidated Wounded Knee Cases, Judge Warren Urbom, 1975)
With the above wording, Judge Urbom showed, as does Governor Dalrymple today, utter disdain for the organic law system of the United States, the “utmost good faith” provision of the Northwest Ordinance, and the act to establish the territory of Dakota. What has been and continues to be demonstrated against the Lakota and Dakota people and their supporters is the utmost bad faith toward Native people and the non-Native allies.
Urbom’s ruling and what is now happening at Standing Rock are premised on the principle that ‘in their property, rights, and liberty, they [the Indians] shall always be invaded and disturbed, even when there are no just and lawful war declared by Congress. The police abuse of the water protectors at Standing Rock is the kind of behavior that follows from the Vatican documents of the fifteenth century that said to go forth to locate and dominate non-Christian nations.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com.