September 01, 2017

Indigenous Rights of Standing Rock: Federal Courts and Beyond

by Carla F. Fredericks, Rebecca Adamson, Nick Pelosi, and Jesse Heibel

The controversy surrounding the Dakota Access Pipeline (DAPL) is ubiquitous—galvanizing indigenous communities and allies across the globe to stand with Standing Rock. One positive outcome has been a historic, revitalized movement to protect indigenous and human rights in the face of ever-expanding exploitation in the fossil fuel industry. However, the fight against DAPL has been historic in more than just size and scope. As the case proceeds through the courts, the tribes have expanded the battlefield by going beyond domestic litigation and appealing directly to international human rights bodies and initiating broad corporate engagement. This multipronged approach to defending tribal rights has played a key role in not only sustaining the conversation, but also expanding the forums in which the conversation takes place while the federal courts’ action continues.

The circumstances surrounding DAPL have proven what indigenous communities across the globe have known for centuries—that the human, social, cultural, and environmental impacts of large extractive and infrastructure projects threaten a wide range of indigenous and human rights, including those enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. While many have identified the rights threatened by such projects, the DAPL has exposed a reality of Indian tribes that was previously invisible to the American mainstream. Projects like this, and the governments that allow them, implicate and oftentimes violate internationally recognized human rights and collective indigenous rights, including the rights to culture; health; water; property; assembly; personal security; participation in government; and free, prior, and informed consent.

It is ironic that a global controversy over indigenous rights takes place in the United States, litigated in a court system that still adheres to case law based on the Doctrine of Discovery, a fifteenth-century concept used to invalidate indigenous land possession and expropriate lands to the colonial forces of western Europe. See City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), where the court cites the Doctrine of Discovery as guiding principle in federal Indian law. The DAPL controversy has shown the world that modern-day aggressions against indigenous peoples are alive and well in the United States, and connects this country’s past oppression with present- day injustices. As such, the litigation surrounding the planning, construction, and operation of DAPL provides a contemporary opportunity to analyze—within the context of indigenous human rights— protections and remedies provided by federal statutes and case law.

This case involves treaties between the federal government and the Great Sioux Nation, which under Indian law canons of construction, are interpreted in favor of Indian interests. See Felix S. Cohen, Handbook of Federal Indian Law, 222 n.42; Worcester v. Georgia, 31 U.S. at 582 (1832). This case also involves the National Environmental Policy Act and National Historic Preservation Act, enacted to address, prevent, and mitigate adverse impacts on the environment and historic properties. These statutes contain similar, yet distinct, government-togovernment consultation requirements when federal actions implicate tribal rights and resources. Working together, these treaties and statutes seemingly provide a broad legal basis by which the federal courts could adequately protect the human and indigenous rights implicated by DAPL and similar projects.

But as the docket approaches its oneyear anniversary in July, the case still sits in the United States District Court, seemingly buried in motions for summary judgment and debates over the administrative record. As oil is about to flow underneath Lake Oahe, it is safe to say that, at this point, the courts have failed to protect the rights threatened by the construction and operation of the pipeline.

In fact, as we await a decision on the major issues, the stage is set for the battle to be waged in new arenas, reaching new audiences, and escalating the conversation far beyond the United States judicial system. When lack of immediate court remedies became clear, tribal leaders and activists began to invoke the energy of the movement to seek protection of their rights outside the confines of a Washington, D.C., courtroom. Although the exercise of protected First Amendment rights and North Dakota’s violent reaction to such exercise were responsible for turning the international spotlight on Standing Rock, other, less-headline-grabbing forms of activism played important roles in the fight against DAPL. Specifically, through direct appeals to international human rights bodies and continued focus on corporate engagement, tribal leaders and activists have looked past the limitations of the federal courts for ways to effectively protect their indigenous and human rights.

International Advocacy

On September 21, 2016, Standing Rock Sioux Chairman David Archambault II traveled to Geneva, Switzerland, to address the United Nations Human Rights Council’s 33rd Session, meet with various U.N. representatives, and participate in panel discussions on the rights of indigenous peoples. While addressing the Human Rights Council, Chairman Archambault discussed the United States’ and the company’s violation of the tribe’s indigenous rights and law enforcement’s human rights abuses against individuals participating in demonstrations.

Chairman Archambault also met with the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz. During their meeting, Chairman Archambault invited the special rapporteur to the Standing Rock Sioux Reservation. Five months later, Tauli-Corpuz came to Standing Rock during a United States visit focused on indigenous peoples vis-à-vis energy development. The special rapporteur met with the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe governments currently fighting DAPL in federal courts. During their meetings, tribal leaders had the opportunity to interact and share their views on how the United States treats indigenous peoples. The fact finding and information shared with the special rapporteur will help shape her official Country Report, which will be released later this year.

While many inroads have been made at the United Nations, tribal nations also looked to regional human rights bodies for redress and protection as construction of the pipeline continued. The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe jointly requested and were granted a thematic hearing before the Inter-American Commission on Human Rights (IACHR) to discuss indigenous peoples in the United States relative to extractive infrastructure projects. Testifying before the commission on December 7, 2016, tribal leaders and representatives from all three tribes were able to highlight the tribes’ history and connection with the land, law enforcement actions against those in the camps, and the steps the United States government had failed to take to protect their rights.

In conjunction with the hearing before the IACHR, the tribes also filed an official Request for Precautionary Measures (https://www.dropbox.com/s/rjgt7xfprm97uza/ Standing%20Rock%2C%20 Cheyenne%20River%20%26%20 Yankton%20Sioux%20Tribes%20-%20 Request%20for%20Precautionary%20 Measures%20-%20FINAL%20Dec%20 02%2C%202016%20-%20with%20 exhibits.pdf?dl=0), which urges the Inter-American Commission to call on the United States to adopt measures to prevent the violation of human rights and irreparable harm resulting from the construction of the pipeline and the violence from state actors against demonstrators and supporters gathered in prayer and protest. The request points to the United States’ failure to adequately assess potential environmental and social impacts of the project. Drawing on relevant U.S. and international law, the tribes argued that ongoing construction and continued harassment of those peacefully gathered pose an ongoing and imminent threat of irreparable harm to the sacred sites and resources of the tribes and rights of all those involved.

Corporate Engagement

Supporters of Standing Rock have sought support from investors and engaged directly with banks that have financial ties to DAPL. As a result, the relevant companies self-reported that they incurred major financial and reputational damage. In September 2016, Energy Transfer Partners (ETP) reported to the federal court that “it could lose $1.4 billion in a year if delays continue . . . even a temporary delay would mean losses of over $430 million.” Similarly, the banks that invested in DAPL suffered reputational harm as a result of consumer activism against their role in the pipeline.

These efforts focused on the growing acceptance of the financial industry’s adherence to the Equator Principles to guide its discussions with financial institutions, investors, and the public. The Equator Principles are a “risk management framework, adopted by financial institutions, for determining, assessing and managing environmental and social risk in projects and are primarily intended to provide a minimum standard for due diligence to support responsible risk decision-making.” (For more about the principles, go to www.equatorprinciples. com/index.php/about-ep.) As a result of the Standing Rock Sioux Tribe’s focus on corporate investment and responsibility, individuals, tribes, cities, and organizations have closed more than $5 billion worth of bank accounts at financial institutions invested in DAPL. The city of Seattle divested $3 billion from Wells Fargo.

Tribal leadership also met one on one with 12 out of 17 banks with project-level loans to DAPL to directly inform them of the tribe’s opposition and explain the disproportionate social, environmental, and health-related risks the project imposed on the tribe and its members.

The tribe asked each bank to use their influence as lenders to pressure DAPL to conduct a full environmental impact statement and remove the project from the tribe’s treaty territory. Three banks (BNP Paribas, DNB, and ING) sold their shares in the DAPL loan in response to the tribe’s opposition, sending a strong message that the ETP’s treatment of indigenous peoples is unacceptable business practice. Additional pressure was levied on banks through the banks’ own shareholders. An investor statement, signed by investors worth over $1.7 trillion assets under management, called on banks to address and support the tribe’s request to move DAPL out of their treaty territory. Signatories included institutional investors and pension funds such as the California Public Employees Retirement System, the New York State Common Retirement Fund, and the New York City Employee Retirement System, as well as faith-based funds and socially responsible investment firms such as Boston Commons Asset Management and Calvert Investments.

Investors also stood with Standing Rock through the filing of shareholder resolutions with three companies with minority ownership stakes in DAPL: Enbridge, Marathon Petroleum, and Phillips 66. (A resolution could not be filed with ETP because of the company’s master limited partnership structure, which prevents shareholders from filing resolutions.)

The resolution presented to Marathon Petroleum asked the company to report on its processes for assessing environmental and social risks and received support from 35 percent of voting shareholders. A resolution filed with Enbridge made a similar request, and although it also failed, 30 percent of all shareholders supported it. The resolution with Phillips 66 was withdrawn in response to the company’s agreement to engage in further dialogue with its shareholders about human and indigenous rights. Additionally, a resolution was filed with Wells Fargo asking the bank to adopt an Indigenous Rights Policy and received support from 17 percent of shareholders, but ultimately was rejected. The most significant sign of progress came from U.S. Bank, which announced at its shareholders’ meeting in May 2017 changes to its environmental policy—the new policy states that they no longer provide project financing for the construction of oil or natural gas pipelines. (For more about the policy, go to https://www.usbank.com/ community/environmental-sustainability. aspx.)

Conclusion

The adoption and continued support of these and other tactics may very well ensure that the reemerging indigenous rights movement will continue to effect change in the centuries-long struggle to recognize and protect indigenous rights. It is particularly important to continue dialogue with corporations and banks where a project like DAPL can have lasting impacts. For example, at the time of this writing, the DAPL has already leaked 84 gallons of oil even before becoming operational. Indeed, international human rights bodies and corporate boardrooms may not change the final outcome for this particular battle, but these expanded strategies employed by Standing Rock have been useful in garnering additional support globally and will lead to improved laws for indigenous peoples.

Carla F. Fredericks is director of the American Indian Law Program and the American Indian Law Clinic at the University of Colorado Law School. She is a graduate of Columbia Law School and is an enrolled member of the Mandan, Hidatsa, and Arikara Nation.

Rebecca Adamson is founder and president of First Peoples Worldwide, an indigenous-led organization that engages the private sector to promote business models that uphold indigenous rights. Since 1970, Adamson has worked directly with grassroots indigenous communities to establish new models of values-driven development, including the first micro loan fund in the United States, the first indigenous rights investment screen, and the first shareholder advocacy training for Indian Country.

Nick Pelosi is corporate engagement director at First Peoples Worldwide. In that role, he provides corporate engagement training and capacity building to tribes, and performs research and risk analysis for companies operating on indigenous land. Jesse Heibel is an attorney and research fellow at the Getches-Wilkinson Center for Natural Resources Energy and the Environment, where his work includes protecting the water rights of traditional farming communities in Colorado’s San Luis Valley and addressing energy development impacts on Native American communities.

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