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| Dakota Access Right of Way, credit: T. Sylvester |
The company still lacks a permit to drill under the Missouri River, but has initiated legal action to force the federal government to allow drilling to begin immediately; activists say the drilling rig is already operational. One native water protector told reporters, "We refuse to be Trumped."{31.10.16} On Thursday, in the latest confrontation in a history of
confrontations since the founding, law enforcement officials in full riot armor arrested one hundred and forty-one Native Americans protesting the desecration and usurpation of their resources by the European immigrants who now hold dominion over the land. It was the preeminent founder, George Washington, who foresaw, according to his biographer Joseph Ellis, that the flaws in federalism would eventually cause endless misery for the American Indian because in the final analysis what the country claimed it stood for--individual liberty--was at odds with what was politically necessary for it to survive. In 1787 America was a small, solitary nation surrounded by hundreds of other sovereign Indian nations that were not even mention in its founding documents let alone accounted for in policy or law. The treaty became the implement with which foreign settlers progressed across the Indian landscape to subdue the 'new Edens' of the West.
The Crows last hereditary chieftain, Plenty Coups, survived three decades into the 20th century. He was born at the time of the first treaty with his people. He had personally taken part in many treaty councils, and he lived to see all of them broken by the white man. It was all part of relentless covetousness by the European for what was not theirs, and it was innocuously named "Manifest Destiny", which is when you think about a lot like "Inalienable Rights"--concepts so ethnocentricly obvious that no white man could rationally question their existence. Emphasis is placed on the racial term "white man". Plenty Coups had this to say about the white man's use of law and religion for his own, often commercial purposes, based on his many years of dealing with him:
“We have seen that the white man does
not take his religion any more seriously than his laws, that he keeps
both of them just behind him, like Helpers, to use when they might do
him good. … These are not our ways. We kept the laws we made and lived
by our religion. We have never understood the white man, who fools no
one but himself.”
Chief Justice Marshall formulated the legal doctrine that would guarantee white predominance over Indian territorial rights in Worchester v. Georgia (1832) by relying on the 16th century concept known as the "Doctrine of Discovery" which basically held that European arrival in the New World, i.e. "discovery", constituted dominion over native peoples and their lands still in a state of nature. Of course no one asked the Indians if they wanted or needed to be "discovered". Despite the Marshall's rationalization of European dominion, he found Georgia's dispossession of Cherokee Indians from their homeland to be unconstitutional since they were a sovereign nation and the relationship between the United States and the Cherokee Nation was governed by federal treaty, not state law. No one asked President Jackson if he agreed with the decision. H is actions clearly indicate he did not, for he forged ahead with the forced removal of Indians from eastern forests. When asked what a Indian reservation represented to him, General Sherman replied, "a parcel of land set aside for the exclusive use of Indians, surrounded by thieves." It took a civil war and the Fourteenth Amendment to finally decide the supremacy of federal law and its treaty obligations over state's rights.
Originally the Bakken Field pipeline was planned to cross the Missouri River on its way to Illinois north of Bismark, North Dakota. [map credit: Dakota Access Pipeline] When concern arose over what a pipe rupture might do to that city's water supply it was re-routed. The pipeline would now cross the river near the Sioux Tribe's reservation at Standing Rock at the confluence of the Cannonball and Missouri. Once the re-rerouting was publicized by a Bismark newspaper, the Sioux nation began to protest the plan. The concern was and still is the same one that caused the initial re-routing--fear that a major leak will pollute the Missouri, the major source of the tribe's water supply.The Indians of today see themselves not an inconvenient revenants standing in the way of inevitable progress, but as protectors of the waters. One of their leaders says it his belief that the American Indian will one day fight for the survival of Earth in the 21st century, just as their ancestors did in the 19th. Five hundred and sixty two sovereign nations are staking their new claim. It is based on over three hundred treaties the national government agreed to in the 18th and 19th centuries, but it is also based on something even more important than sovereign treaties: natural resources. Indian lands hold 40% of America's remaining coal reserves; 65% of its uranium; untold amounts of valuable metals; millions of barrels of oil; millions of cubic feet of natural gas; and last but not least, 20% of the nation's fresh water. If we are lucky, the fights will take place in the nation's federal courts and not on the battlefields of Little Big Horn or Wounded Knee. Indians have learned from their history of white betrayal. They are forming their own legal departments to fight the good fights.
It took 300 heavily armed officers of the law to take down the Standing Rock protesters that came from over 300 Indian nations. The protesters set up camp on pipeline company land they say was illegally taken from the tribe in 1851. Most of those arrested were charged with maintaining a public nuisance--a fire on a state highway. Two medics giving first aid to protesters were hit with batons and roughly handled. The chairman of the Standing Rock Sioux, Dave Archambault II invited UN officials to observe and investigate the increasing violence and intimidation by state and company agents against protesters. The UN's Permanent Forum on Indigenous Issues has been following developments and issued a statement of concern on August 31, 2016. The eyes of the world are upon you.