Native American Law Update

Dakota Access Pipeline

The Standing Rock Sioux Tribe, and specifically a group of teenage Sioux activists, brought concerns regarding the pipeline public in April 2016 by setting up a spirit camp called Sacred Stone. The pipeline, constructed beneath the Missouri River, upstream from the Standing Rock reservation in North and South Dakota, raises significant concerns regarding the safety of the tribe’s drinking water. That simple and direct action grew into a national and international movement.

In July 2017, the tribe’s fight against the pipeline moved into the courts, and in December 2016, a federal judge found an Army Corps of Engineers easement issued to Dakota Access Pipeline (DAPL) was illegal and ordered a review of the decision to issue the easement. While the dispute continued in the court, the pipeline construction was completed, and in January 2017, President Donald Trump took executive action to hasten the approval of the required easement.

In March 2020, the District of Columbia District Court issued a decision that the permits issued were illegal and ordered the Army Corps to start the environmental review process anew. At that time, the court invited the parties to brief whether or not the pipeline should be shut down pending a conclusion of the environmental review. On July 6, 2020, the D.C. District Court ordered the Dakota Access Pipeline emptied while the Army Corps of Engineers conducts a complete environmental review. Standing Rock Sioux Tribe v. Army Corps of Engineers, D.C. Cir., No. 20-5197, July 14, 2020.

The decision requiring the shutdown and emptying of the pipeline was appealed by Energy Transfer LP and was administratively stayed by an Appellate Court pending submission of the parties briefs (due July 23, 2020) and hearing. The case may ultimately end up in the U.S. Supreme Court.

McGirt v. Oklahoma, 591 U.S. _______ (2020)

On July 9, 2020, the U.S. Supreme Court held that approximately half the State of Oklahoma is Indian Reservation. The majority opinion by Justice Neil Gorsuch finds that regardless of the numerous acts passed since the establishment of the reservation by treaty in 1833, Congress never has expressly diminished the reservation boundaries. This decision is the most recent in a long line of U.S. Supreme Court cases addressing reservation diminishment and termination, and it is arguably the most succinct.

Justice Gorsuch and the majority find that the treaty clearly established the boundaries of the Creek Reservation as “incentive” for the tribe to relocate from its homeland to Oklahoma. Justice Gorsuch opens the opinion with the following:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding ‘all their land, east of the Mississippi River,’ the U.S. government agreed by treaty that ‘[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians’.

The decision discusses the series of acts passed in the early 1900 and finds that none of those, nor any subsequent congressional legislation, expressly diminished the reservation boundaries established by the treaty. The majority opinion concludes, at page 42:

“Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

Thus, 47 percent of the State of Oklahoma, approximately 19 million acres with 1.8 million residents, still is Reservation. The ruling impacts not only the Muscogee (Creek) Nation but the Cherokee, Chickasaw, Choctaw, and Seminole Nations (the Five Civilized Tribes). They are now in consultation with the Oklahoma attorney general and other state administrators to negotiate cooperative agreements regarding jurisdictional issues.

As noted above, this is just the latest in numerous U.S. Supreme Court decisions regarding the diminishment or termination of Native American Reservations. The scope of its impact on other Tribal Nations remains to be seen once the many cases now in the state court and/or district court pipeline flow upward with the McGirt case as their guide.