Op-Ed: What’s Missing from the Dakota Access Pipeline Story?

Credit: OSPA

Written by James Mayer

As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds, and degrading ancestral lands, and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism, and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest, and devalues the community’s cultural heritage.

The fight against Dakota Access is not just about environmental concerns due to a proposed river crossing near the Standing Rock Sioux’s reservation. It is a struggle for cultural democracy: the idea that all communities should have a voice in the public cultural issues that concern us, from how we are educated to how the government treats our community’s concerns; how business concerns are weighed; how problems are identified and solved; who has a say in civic life; and, ultimately, how our political system operates. Cultural democracy holds that all cultures have a right to coexist equally, that one doesn’t dominate over another. Removing Sioux cultural heritage concerns from the Dakota Access fight subsumes Indigenous cultures to mainstream white, liberal culture. The government’s alleged disregard for the Standing Rock Sioux community’s cultural heritage and environmental concerns over the pipeline is a gross violation of the democratic principles that are enshrined in the Constitution. The Standing Rock Sioux’s opposition to the pipeline should be a reminder to lawyers and future lawyers that culture matters.

If you want to learn more about this issue, I encourage you to join one of the various events on the Access Pipeline happening on campus, including the NYU Law chapter of the American Constitution Society’s lunch talk this ThursdayProfessor Stephen Pevar, a Senior Staff Attorney in the ACLU’s Racial Justice Program and an expert on Indian and tribal rights, will discuss tribal sovereignty, how it fits into the Dakota Access Pipeline case, and his role in the ongoing litigation.