Challenges to Dakota Access Pipeline are shifting into new shapes, new fronts

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President Donald J. Trump says the Dakota Access Pipeline is not even controversial. Yet the challenges to that project are taking new form. (Photo via YouTube)

 

Could there be a day, one day, without oil?

Mark Trahant / Trahant Reports

The Trump administration has been in office for less than a month — and already the construction of the Dakota Access Pipeline is again proceeding. Company officials say oil will be flowing by June.

Yes, there is a flurry of activity around the Dakota Access Pipeline, a project that has cost more than $3.8 billion to transfer oil from North Dakota to markets in Illinois and beyond.

But every action to build the pipeline is met with many more reactions to stop it. The fight about this pipeline — and the broader issues it represents — is far from over.

Of course some days it does not seem that way. The U.S. Army Corps of Engineers approved the final easement for the pipeline to cross under the Missouri River and complete the project. The Corps also withdrew its ongoing environmental review, citing President Donald J. Trump’s executive memorandum. But that begs a huge question for the courts: Can a president do that? Is an order from the president (along with previous environmental findings from the Corps) enough to satisfy the law? That question will be sorted out by the courts.

But there are many other challenges to the pipeline.

A press release from the Standing Rock Sioux Tribe said if the construction is successful “the tribe will seek to shut the pipeline operations down.” The tribe has also called for a march next month in the nation’s capital.

“Our fight is no longer at the North Dakota site itself,” said tribal chairman Dave Archambault II. “Our fight is with Congress and the Trump administration. Meet us in Washington on March 10.”

In addition there remain water protectors near the construction site itself (as well as a massive cleanup of where people were camping in flood-prone areas).

What’s clear about the “what’s next?” is that the battle against the Dakota Access Pipeline is taking a very different form. And it’s also a new start because there will be many more actions as the administration and oil-related companies move to restart the Keystone XL pipeline, or in Canada, the Kinder Morgan pipeline.

Then President Trump lives in a world where none of this is a big deal. “I don’t even think it was controversial,” he said. “I haven’t had one call.”

Then the White House wasn’t taking calls. So the Center for Investigative Reporting and its Reveal News has created a new phone number to solicit voice mails from the public about what they would tell the president. It’s 510-545-2640. This is your opportunity to sound off.

Another challenge is financial. Many individuals, tribes, cities, and companies are pulling their money from the banks who finance the Dakota Access Pipeline. But that’s really just the beginning of the actions ahead. Rebecca Adamson, founder of First Peoples Worldwide, points out to investors how much capital is lost by companies that operate without consent from the community involved. A cost she has pegged at somewhere between $20 million to $30 million a week when there are operational disruptions. “The time it takes to bring oil and gas projects on-line has doubled over the course of the past decade due to community opposition, creating significant financial loss,” Adamson writes. More investors are learning about that financial risk and even more need to understand  what’s at stake.

“The movement to stop the Dakota Access Pipeline (DAPL) is wreaking financial havoc on the companies and banks involved,” Adamson writes. “In August 2016, Energy Transfer Partners reported ‘it could lose $1.4 billion in a year if delays continue … Even a temporary delay would mean loses of over $430 million.’ ETP is attempting to raise new debt. This could mean that the banks are ramping up pressure on the company to repay their loans out of concern DAPL will never be finished. In November 2016, Energy Transfer Partners announced a merger with sister company Sunoco Logistics in order to raise much needed cash to finish construction. Energy Transfer Partners’ own shareholders are filing a lawsuit to block the merger, alleging conflicts of interest.”

Like I said: The financial challenges are just beginning.

I also have a big idea I want to toss out. One that could have significant financial implications. So we know the project will take some 30 days to complete. And about three weeks to actually transfer oil from North Dakota to the end of the pipeline. (Updated: Company officials told the U.S. District Court that oil could begin flowing in less than four weeks.)

What if on that day, the day the oil reaches markets, there is a Day Without Oil. One day. It take a massive organizational effort. But why not? What if every ally of Standing Rock, every community that has its own Standing Rock, every one who is concerned about water, takes a day off from oil? Either walk every where that day — or just stay home. Do what it takes to remind the companies, and the government itself, who’s really in charge of the economy.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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Journalism Fail: Standing Rock arrest puts the First Amendment on trial

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Native American media have been quick to jump to the defense of journalist Jenni Monet. She was arrested near Standing Rock last week. But most of the press has been silent about the charges she faces (and the implications for the First Amendment). Photo: Aboriginal People’s Television Network.

Jenni Monet faces criminal trespass and rioting charges

Mark Trahant / Trahant Reports

Jenni Monet, a Native American journalist, was arrested last week while covering Standing Rock. You’d think that would trigger a lot of support from the national and regional news media. 

There is an idea in law enforcement called the “thin blue line.” It basically means that police work together. A call goes out from Morton County and, right or wrong, law enforcement from around the country provides back up.

You would think journalism would be like that too.

When one journalist is threatened, we all are. We cannot do our jobs when we worry about being injured or worse. And when a journalist is arrested? Well, everyone who claims the First Amendment as a framework should object loudly.

Last Wednesday Monet was arrested near Cannonball, North Dakota. She was interviewing water protectors who were setting up a new camp near the Dakota Access Pipeline route on treaty lands of the Great Sioux Nation. Law enforcement from Morton County surrounded the camp and captured everyone within the circle. A press release from the sheriff’s Department puts it this way: “Approximately 76 members of a rogue group of protestors were arrested.”  Most were charged with criminal trespassing and inciting a riot.

As was Monet. She now faces serious charges and the judicial process will go forward. The truth must come out.

But this story is about the failure of journalism institutions.

The Native press and the institutions that carry her work had Monet’s back. That includes Indian Country Media Network, Yes! Magazine, and the Center for Investigative Reporting’s Reveal. In Canada the Aboriginal People’s Television Network reported on the story during its evening news. And, The Los Angeles Times has now weighed as well in with its own story written by Sandy Tolan who’s done some great reporting from Standing Rock. The Native American Journalists Association released a statement immediately: “Yesterday’s unlawful arrest of Native journalist Jenni Monet by Morton County officers is patently illegal and a blatant betrayal of our closely held American values of free speech and a free press,” NAJA President Bryan Pollard said, “Jenni is an accomplished journalist and consummate professional who was covering a story on behalf of Indian Country Today. Unfortunately, this arrest is not unprecedented, and Morton County officials must review their officer training and department policies to ensure that officers are able and empowered to distinguish between protesters and journalists who are in pursuit of truthful reporting.”

Yet in North Dakota you would not know this arrest happened. The press is silent. (UPDATE on Feb. 7: Bismarck Tribune reports on the arrest.)

I have heard from many, many individual journalists. That’s fantastic. But what about the institutions of journalism? There should news stories in print, digital and broadcast. There should be editorials calling out North Dakota for this egregious act. If the institutions let this moment pass, every journalist covering a protest across the country will be at risk of arrest.

After her release from jail, Monet wrote for Indian Country Media Network, “When Democracy Now!’s Amy Goodman was charged with the same allegations I now face—criminal trespassing and rioting—her message to the world embraced the First Amendment. ‘There’s a reason why journalism is explicitly protected by the U.S. Constitution,’ she said before a crowd gathered in front of the Morton County courthouse. “Because we’re supposed to be the check and balance on power.”

The funny thing is that journalism institutions were not quick to embrace Goodman either. I have talked to many journalists who see her as an “other” because she practices a different kind of journalism than they do.

Monet’s brand of journalism is rooted in facts and good reporting. She talks to everyone on all sides of the story, including the Morton County Sheriff and North Dakota’s new governor. She also has street cred … and knows how to tell a story. Just listen to her podcast — Still Here — and you will know that to be true.

So if we ever need journalism institutions to rally, it’s now. It’s not Jenni Monet who will be on trial. It’s the First Amendment. Journalism is not a crime. 

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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The president’s logic on the Dakota Access Pipeline: Because I said so.

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Announcement of order by Acting Army Secretary was posted on the web site of North Dakota Sen. John Hoeven on Jan. 31. (Screenshot of Senator’s home page.)

Tribe says Corps does not have authority to stop environmental review

 

**Updated Feb. 8, 2017

Mark Trahant / Trahant Reports

Cognitive scientist George Lakoff once described the process for Republican thinking. It’s a set of assumptions built on the idea of a strict father.

He wrote in his classic book, Don’t Think of an Elephant, “The strict father model begins with a set of assumptions: The world is a dangerous place, and always will be, because there is evil out there in the world. The world is also difficult because it is competitive. There will always be winners and losers. There is an absolute right and an absolute wrong. Children are born bad, in the sense that they just want to do what feels good, not what is right. Therefore they have to be made good.”

Donald J. Trump is the strict father who runs his family — and in this case, the United States — on the model that all he needs to say to defend any action is “because I said so.” The president’s executive memorandum on Standing Rock is exhibit one.

“Today, the Acting Secretary of the Army Robert Speer informed us that he has directed the Army Corps of Engineers to proceed with the easement needed to complete the Dakota Access Pipeline,” North Dakota Sen. John Hoeven said in a news release. “This will enable the company to complete the project, which can and will be built with the necessary safety features to protect the Standing Rock Sioux Tribe and others downstream. Building new energy infrastructure with the latest safeguards and technology is the safest and most environmentally sound way to move energy from where it is produced to where people need it.”

Just like that. The Corps is supposed to walk away from a process already underway, the Environmental Impact Statement and the public comment period that is open until Feb. 20, 2017. (The Army has since announced that it is withdrawing its environmental review and approving the easement immediately.)

This is now a test of the federal courts. Will that institution follow the order of the acting secretary, and the president, or will it insist on the conclusion of the environmental review that’s underway.

First: It’s interesting that th announcement came from a U.S. Senator and not the agency itself.

The Federal Register, the rule book for government, published a plan for the review process on Jan. 18. Yes, there is a new administration, but that does not (or should not) change the rules. The notice, unlike the president’s memorandum, cites the statutory authority for moving forward. This is more than you want to read … but here goes: “This notice is published in accordance with sections 1503.1 and 1506.6 of the CEQ’s Regulations (40 CFR parts 1500-1508) implementing the procedural requirements of NEPA, as amended (42 U.S.C. 4321 et seq.), and the Army and Corps’ NEPA implementation policies (32 CFR part 651 and 33 CFR part 230), and exercises the authority delegated to the Assistant Secretary of the Army (Civil Works) by General Orders No. 2017-1, January 5, 2017.”

Of course this action will also open a new round of litigation. That will be the test of the independence of the federal judiciary. Will federal judges tell the president no? Will litigation even be allowed (strange as those words sound)? The Trump administration and North Dakota certainly hopes not. That process takes too long in a world run by oil gadzillionaires.

A statement by the Standing Rock Sioux Tribe Tuesday said: “The Army Corps lacks statutory authority to simply stop the EIS and issue the easement. The Corps must review the Presidential Memorandum, notify Congress, and actually grant the easement.We have not received formal notice that the EIS has been suspended or withdrawn. To abandon the EIS would amount to a wholly unexplained and arbitrary change based on the President’s personal views and, potentially, personal investments. We stand ready to fight this battle against corporate interest superseding government procedure and the health and well being of millions of Americans.”

Sen. Hoeven said “we need to bring (this dispute) to a peaceful resolution.” Yet the president’s action, the order by the acting secretary of the Army Corps of Engineers, and the very idea of a strict father shouting, because I said so,” is not how to make a peaceful resolution.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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North Dakota’s new governor misses Standing Rock moment

A YouTube video from North Dakota’s new Gov. Doug Burgum. More of the same about Standing Rock.

Mark Trahant / Trahant Reports

There is that moment when we take the plastic protection off a new phone screen. Everything was perfect until we peel it away. Then fingerprints, scratches, and the business of life take hold. That new thing is never the same.

That’s exactly where Doug Burgum was as the new governor of North Dakota. He could have taken that screen and made certain that there was a new image of North Dakota for the world to see.

Damn. Think about what was possible: A governor who is framing his entire administration on innovation just dismissed the most disruptive force in his state’s recent history. That is what Standing Rock is about. Instead of saying, “What can we learn from this? What can we do together?” The new governor relied on the screen saver that was there before; the idea that powerful forces will roll over the tribe and build the Dakota Access Pipeline without interference. Thank you.

Burgum also scratched away at an old story: The Obama administration created this problem.

But his larger message is that the state of North Dakota and its corporate partners are more powerful than any tribal government. Instead of a pause, a moment to engage in a government-to-government dialogue, the new governor emphatically says the pipeline will get built soon. No. Matter. What.

“Make no mistake, this infrastructure is good for our economy,” the governor said in his YouTube video. “And it’s the safest way to transport North Dakota products. Failure to finish it would send a chilling signal to those in any industry who wish invest in our state and play by the rules.”

But the rules are complicated. And the court cases are not resolved. In fact the governor could have taken advantage of the litigation schedule to begin an open dialogue. Even more important: The prospect of more litigation is growing and that is something that will not be resolved by the Trump administration. It will take time.

The new governor could have reset the law enforcement battle lines too. Nope. “As a result of the Obama administration’s refusal to uphold the rule of law on federally owned land, both our citizens and local and state law enforcement have been put in harm’s way,” he said. “These actions are putting daily demands on the scarce resources of our state and local government.”

Those daily demands are because the state of North Dakota made it so. Pick a word: defuse, de-escalate, negotiate. There were so many better alternatives, ones that were dismissed in favor of sending in the cavalry. I have interviewed many government officials over the years that successfully reduced tension instead of using the police powers of a state. In every test the state failed in this regard and the new governor is following the same path.

I had hopes that Gov. Burgum would see the potential of the Standing Rock story as one that could make North Dakota a beacon. Think about this: This moment in history has brought indigenous people together in a way that’s unprecedented. And the world is paying attention to that. What an amazing opportunity, something that could stir the imagination of investors, entrepreneurs, and governments. Potential partners in a state that found a solution by working with tribes to solve an intractable problem.

The former governor blamed social media for this global perception. But that misses the point that the Standing Rock Tribe owns the story. And that won’t change because the new governor posts a video his account. The problem is not social media. It’s the message that the State of North Dakota will use the rule of law, the police power of a state, to roll over a tribal nation. It’s a message of brut force instead of inspiration. 

A missed opportunity? Sadly, yes. The governor says he will meet with tribes. But in North Dakota the context is business as usual. The plastic is off. And the new screen is already scratched.

 

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports
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Sometimes the stars do align: Peggy Flanagan and a run for Congress

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Rep. Peggy Flanagan’s Twitter profile picture. She represents Minnesota’s District 46A and could soon be a candidate for Congress.

Mark Trahant / Trahant Reports

Sometimes the stars do align. The short version: Minnesota Rep. Keith Ellison is campaigning to chair the Democratic National Committee. If he wins, that opens up a congressional seat in a special election. And, state Rep. Peggy Flanagan is thinking about running.

Now, the details.  Ellison represents Minneapolis and some of the suburbs, including St. Louis Park and, as he puts it in his biography, is “one of the most vibrant and ethnically diverse districts in Minnesota.” He’s often a leader of the  Congressional Progressive Caucus for the 113th Congress and is often a voice for justice on issues ranging from financial services to Standing Rock.

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Rep. Keith Ellison, D-Minnesota.

Ellison wrote last week on Facebook:

“After months of protests, I’m inspired by this victory by thousands of indigenous activists and Water Protectors, and millions of Americans who support them. This is a victory for all people who fight for social justice. And it is a victory won by the power of peaceful protest – a reminder of what people can do when they stand up and organize.

We use environmental impact statements to understand how key projects will impact our environment and communities. I hope that Energy Transfer Partners, and most importantly, the next Administration, recognize the concerns raised by the Standing Rock Tribe.

I also want to acknowledge that the responsibility for this project falls on the Energy Transfer board room, not the workers who are simply trying to do their jobs. Working Americans need our support as well. That’s why I support a broad infrastructure package that creates good jobs for millions of American workers.

We have a responsibility to respect the sovereignty of the Standing Rock Tribe, and to ensure their voices are heard. And we must ensure that the millions of people who depend on the Missouri and Cannonball rivers have access to clean water. As the Water Protectors at Standing Rock remind us every day: Water Is Life.”

This is not exactly the message we have been hearing from the Democratic National Committee. Instead, since the summer, when the presidential campaign was at its height, we heard statements about protecting peaceful protest and workers (without a definition of what was meant).  The Democratic Party has been trying to represent corporate patrons (including those who build and fund pipelines) as well as some of its core constituent groups. That no longer works. If it ever did. In this age of social media and transparency, the people are demanding more accountability and a clear sense of direction about social justice.

And that’s the basis of Ellison’s campaign, building a party that champions grass roots efforts. He said last week: “The Democratic Party must be the party that delivers for working people. We can do that by meeting folks where they are, looking them in the eye, treating them with respect, and working to solve their problems. For me, that means a chair with only one full time commitment.”

So that means Ellison (unlike former DNC Chair Debbie Wasserman Shultz) would give up his congressinal seat. “I have decided to resign as a member of Congress if I win the election for DNC chair. Whoever wins the DNC chair race faces a lot of work, travel, planning and resource raising. I will be ‘all-in’ to meet the challenge.”

Ellison was a strong candidate before his announcement last week. But since then he is earning more endorsements from elected Democrats. According to Politico, supporters now include: Reps. John Lewis, Raul Grijalva, Luis Gutierrez and Tulsi Gabbard, a former DNC vice chair, as well as Sens. Martin Heinrich, Bernie Sanders, Chuck Schumer, Elizabeth Warren, and on Thursday, the AFL-CIO also announced its endorsement.

The election of the DNC chair will happen at the party’s winter meeting, sometime before March 2017. There are at least two other candidates:  Raymond Buckley, a NH party leader, and Jaime Harrison, chairman of the South Carolina Democratic Party. There are other potential candidates as well, including Labor Secretary Thomas Perez.

And that’s the stage setting a Peggy Flanagan run for Congress.

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Flanagan’s entry into the race would be historic. She’s a member of the White Earth Band of Ojibwe and she would be the first American Indian woman ever elected to Congress. That sentence is in itself remarkable when you think about this country’s history and the contributions from so many Native women. Montana and Arizona could, should, have broken that barrier in 2016 by electing Denise Juneau and Victoria Steele. But the geography and the timing weren’t there. Sometimes elections require a bit more, well, luck.

And Minnesota’s fifth congressional district could be the spot. As Ellison’s biography says, it’s one of the most vibrant and ethnically diverse districts in Minnesota. This is a place where voters would appreciate, even celebrate, the historical significance of this first. After all this is a state that just elected four Native women to its Legislature. Another record.

Flanagan also has the ideal background for this job. She’s been an organizer working on social justice issues for more than a decade. More than that: She teaches other people how to win campaigns and elections for Wellstone Action and The Management Center (an organization working for social change). She was executive director of the Children’s Defense Fund-Minnesota.

And, if that’s not enough, she knows how to win a special election. She was elected to the Minnesota House in 2015 when Rep. Ryan Winkler moved out of the country. She jumped into the race early, ran unopposed, and earned 96.4 percent of the vote.

It’s not likely that Flanagan will run unopposed for a congressional seat. But she is already getting early support on social media. (Hashtag: #RunPeggyRun.)

Former Minneapolis Mayor R.T. Rybak Jr. posted this on Twitter: “Wow! It would be great to have one of the best young leaders in the country be my rep in Congress.” He’s not alone. Others have expressed their fondness for Ellison and then say Flanagan is the right candidate to build on that legacy.

In politics timing is everything. Sometimes the stars do align.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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Op-Ed: Standing Rock is historic win for Native American religious freedom

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The message from Standing Rock is a rare win for religious freedom. (Photo by Dale Kakkak, News From Indian Country.)

By Charles C. Haynes / The Newseum Institute

On Dec. 4, the two-year struggle by the Standing Rock Sioux Tribe to protect their sacred land and water ended — at least for now — when the Obama administration denied the easement needed to complete the Dakota Access Pipeline.

The cancelled route, located one half mile from the tribe’s reservation in North and South Dakota, would have allowed the pipeline to cross under the Missouri River, a action that the tribe believes would threaten their life-giving water and destroy sacred sites.

Human rights advocates are savoring the moment. In the long, ugly history of persecution, exploitation, broken treaties, unkept promises and adverse court decisions, the victory at Standing Rock is a rare win for Native American religious freedom.

What is considered sacred by indigenous peoples — including, in this case, water, burial sites, sacred gathering spaces — has been, at various times in our history, debased, mocked, bulldozed or completely ignored by government officials and courts. In fact, for much of our history, many Native American ceremonies were illegal and people were imprisoned for practicing their religion.

The First Amendment’s Free Exercise clause is supposed to protect all religious groups, including those with rites and rituals rejected, feared or misunderstood by the majority. But the Supreme Court has often failed to treat Native American religious practices on a level playing field with other religious claims. In fact, Native Americans have never won a Free Exercise case at the U.S. Supreme Court.

Consider the 1988 Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Association. At issue was a plan by the U.S. Forest Service to build a road and harvest timber in a section of the Six Rivers National Forest considered sacred by the Yurok, Karok and Tolowa tribes. 

Although the justices acknowledged that the development plan would effectively destroy an entire religion, the Court ruled 5-3 that the constructing the road would not violate the free exercise of the tribes. As a result, Native Americans now have little recourse under the Constitution as they battle to preserve sacred sites on federally owned land.

Centuries of religious tradition can be wiped out — and invoking the First Amendment does nothing to prevent it.

Against the backdrop of this sad history, Native American protesters — calling themselves “water protectors” — gathered by the thousands and would not be moved. Representatives from more than 300 tribes flocked to Standing Rock, joined by human rights activists, veterans and ordinary citizens who know injustice when they see it.

Sprayed with water cannons in freezing weather, pelted with rubber bullets, tear gas and concussion grenades, the water protectors attempted to open a bridge barricaded by police, arguing that the barrier blocked emergency services from reaching their camp and the nearby Standing Rock Sioux Reservation.

Fortunately, tribal elders defused that confrontation. But more serious conflicts were anticipated after state officials gave the protesters a Dec. 5 deadline to leave the area; an order protesters promised to defy. The Obama administration’s action on Dec. 4 ended the standoff, handing Native Americans a rare religious freedom victory.

Not surprisingly, proponents of the Dakota Access Pipeline are outraged. Energy Transfer Partners, builders of the pipeline, accused the Obama administration of “currying favor with a narrow and extreme political constituency” by halting the project. North Dakota Republican Rep. Kevin Cramer described the move as a “chilling signal to others who want to build infrastructure.”

Given the political clout of pipeline supporters, the tribes are aware that their victory is fragile — and could be undone after Jan. 20. A spokesman for Donald Trump has already announced that the president-elect supports completing the pipeline and will revisit the Obama administration’s decision once he is in the White House.

What the new administration will soon discover, however, is that the Standing Rock Sioux Tribe, supported by hundreds of tribes from across the country, will not fold their tents and quietly disappear. If construction resumes, threatening sacred water and land, the protest camps will grow in size and strength.

The Trump administration will face a stark choice: Once again remove Native Americans by force — or, at long last, protect Native Americans to preserve and practice their religion on land they hold sacred.

Charles C. Haynes is vice president of the Newseum Institute and founding director of the Religious Freedom Center. Contact him via email at chaynes@newseum.org. Follow him on Twitter at @hayneschaynes

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A powerful idea: The Rule of Law

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Four words that still matter

Mark Trahant / Trahant Reports

The Rule of Law. Four words that are cited over and over as the reason why the water protectors at Standing Rock should back away from their efforts to stop the Dakota Access Pipeline. The reasoning goes: The Rule of Law makes it ok to stand over there, hold a sign, until this dispute goes away. Shhh! Be quiet. The pipeline will be built as planned.

And on Monday, using a snow storm as an excuse, the governor dipped into his legal tools and called on the most powerful words in his arsenal. “I, Jack Dalrymple, Governor of the State of North Dakota, order a mandatory evacuation of all persons located in areas under the proprietary jurisdiction of the United States Army Corps of Engineers located in Morton County …”

The Rule of Law. The governor issued this proclamation knowing full well that none of the people at the camp will leave after his lofty proclamation. He knows that in order to enforce The Rule of Law there will have to be a massive law enforcement action where hundreds of people are rounded up and incarcerated.

And the word from the Standing Rock Sioux Tribe and its allies is as expected. “This state executive order is a menacing action meant to cause fear, and is a blatant attempt by the state and local officials to usurp and circumvent federal authority,” Chairman Dave Archambault II said in a news release. “The USACE has clearly stated that it does not intend to forcibly remove campers from federal property. The Governor cites harsh weather conditions and the threat to human life. As I have stated previously, the most dangerous thing we can do is force well-situated campers from their shelters and into the cold. If the true concern is for public safety than the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings. This is a clear stretch of state emergency management authority and a further attempt to abuse and humiliate the water protectors. The State has since clarified that they won’t be deploying law enforcement to forcibly remove campers, but we are wary that this executive order will enable further human rights violations.”

But that’s it. Every time the state of North Dakota and Morton County have had the opportunity to de-escalate, they favor the more violent course. Instead of crossing the bridge, acting as a governor of all the people, Dalrymple responded to the crisis by calling up the National Guard and then writing checks as fast as he could for more law enforcement to act as a military. The state’s clear and consistent message is comply or else.

And that’s because there is an urgency that’s driven by the corporate sponsors of the Dakota Access Pipeline. Truth be told: The Rule of Law takes too long. The pipeline has a schedule. So any disagreements about interpreting that rule of law must be accomplished as a matter of academic debate. The pipeline must be built. Now. (The company can’t even seem to wait for a court to rule on its own action.)

Then, The Rule of Law is such a funny phrase. One I have heard many times. It’s what was said in Washington, Oregon and Idaho when Native Americans insisted that treaties gave them the right to fish for salmon. The states disagreed and used the power of government to arrest people. Many, many Native people. Until finally the courts said, wait, the rule of law has to include the Constitution of the United States and the powerful article six that declares “treaties as the Supreme Law of the Land.” In the end the states were wrong. One idea that came out of that litigation was that treaties had to be read as the tribal negotiators would have understood the words.

Imagine that. So the Rule of Law means that the tribal interpretation of treaty language is critical to understanding, and implementing, that sacred agreement.

There is another parallel between the salmon fishing treaty battle in the Northwest a generation ago and the fight for clean water by the Standing Rock Tribe. There is no way that salmon would have survived as more than a curiosity had the tribes lost their treaty claims in the 1970s. States and tribes were forced to work together so that salmon could prosper. Before the courts weighed-in, there was an imbalance, caused by overfishing, over-building, and a lack of respect for the natural world. But the treaty forced the states to get serious about working with tribes and managing a scarce natural resource. The Rule of Law won.

And that is exactly what upholding a treaty could do for water in the Great Plains. Especially if the state subscribes to The Rule of Law.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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#StandingRock – Dakota pipeline schedule is one more story of injustice

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Law enforcement is there to protect a pipeline schedule. Water protectors are there for water. And treaties. And justice. (Photo by Dallas Goldtooth via Facebook.)

Mark Trahant / Trahant Reports

This morning politics is crowded out by injustice.

Every preposterous and painful image from North Dakota is another reminder of injustice: The massive police, military-style occupation of Standing Rock Treaty lands, the rush to protect the frantic construction schedule for the Dakota Access Pipeline, and the brutal law enforcement march against people who are fighting for the simple idea that water is life.

I’m angry. How shall I say this without ranting? Tell stories.

Last January when a gang of gun-toting, Constitution mis-quoting, anti-government militia occupied the Malheur National Wildlife Refuge the reaction from federal law enforcement was patience. Days went by. Oregon Gov. Kate Brown (sounding very North Dakota-like) urged the federal government to crack down on “the radicals” before more arrived.

The lands involved were Paiute lands. Months ago, Jarvis Kennedy, a Burns Paiute Tribal Council member, asked: “What if it was a bunch of Natives who went in there and took it?”

We now know. And back in Oregon a jury of peers found the Bundy gang not guilty. 

Stories to tell. Injustice.

Since the beginning of the Standing Rock crisis there has been a call for President Obama to get involved. After all, there is a clear federal issue: The Oceti Sakowin Camp is on treaty land now claimed by the Army Corps of Engineers.

And, President Obama has a direct emotional connection with this tribe and this place. “I know that throughout history, the United States often didn’t give the nation-to-nation relationship the respect that it deserved.  So I promised when I ran to be a president who’d change that, a president who honors our sacred trust, and who respects your sovereignty, and upholds treaty obligations, and who works with you in a spirit of true partnership, in mutual respect, to give our children the future that they deserve.”

How could he have done that? Mutual respect could have, should have, started with a federal presence that made talking more important than acting. The action at Standing Rock is not over. But the federal government’s absence is not productive.

Indeed, if you listen to any politician, Democrat or Republican, you’ll hear them talk about respect for the treaties. Of course. The Constitution says treaties “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The word “shall” is like a commandment. But if that’s true then how does any treaty tribe have less land than what’s in the document? Legally, morally, a treaty trumps a congressional act or an executive order. A treaty claim to the land is not preposterous.

If the United States lived up to its own ideals there would be no stolen water, land, and dams on the Missouri River and the Army Corps of Engineers would have a long history of real negotiation with the tribes instead of a pretend consultation.

Then every tribe in the country has its own Standing Rock story. Often several stories. Vacant lumber mills that promised jobs but left behind toxic debris. Phosphate clean-up plans that were too expensive, so the waste is buried instead. Or three million gallons of heavy metal sludge released by the government into the Animas River where water flowed into Navajo farms and communities.

Stories to tell. Injustice.

There have been calls to get the presidential candidates involved. To visit. To see for themselves the love of the land, the water, and how this moment has brought Indian Country together.

Donald Trump wouldn’t be much help. He’s in the same boat as most of the politicians in North Dakota. They hope to profit from this pipeline project and a future where oil remains more important than water. “Trump’s financial disclosure forms show the Republican nominee has between $500,000 and $1m invested in Energy Transfer Partners, with a further $500,000 to $1m holding in Phillips 66, which will have a 25% stake in the Dakota Access project once completed, The Guardian reported.

And Hillary Clinton? We know from the WikiLeaks that she was inclined to approve Keystone XL pipeline but then flipped because there was so much attention on her email server. It was a way to change the story. Or so the campaign hoped.

Then election season is a terrible time to actually engage in public policy. Campaigns should be talking about issues and what they might do. But not when that decision is influenced by money, large voting blocs, and an intense election schedule. Eleven days out a campaign is more worried about winning the election than anything else. Period.

Now I’ll be polite: The statement by Hillary Clinton on Standing Rock was awful. The second I read it my heart dropped. I can see this being crafted at a table where folks weighed in from a variety of constituent groups and the writing was designed to not offend. “Secretary Clinton has been clear that she thinks all voices should be heard and all views considered in federal infrastructure projects. Now, all of the parties involved—including the federal government, the pipeline company and contractors, the state of North Dakota, and the tribes—need to find a path forward that serves the broadest public interest. As that happens, it’s important that on the ground in North Dakota, everyone respects demonstrators’ rights to protest peacefully, and workers’ rights to do their jobs safely.”

So in the spirit of reconciliation, Energy Transfer Partners put out its own statement, “all trespassers will be prosecuted to the fullest extent of the law and removed from the land.”

There is a schedule to keep. Investors have been promised the pipeline will flow with oil soon. No matter what. Another story to tell. Injustice.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com

How far will North Dakota go? The illogical conclusion is too terrible to think about #StandingRock

 

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The Oceti Sakowin camp at Standing Rock. (Trahant photo)

Mark Trahant / Trahant Reports

A line of trucks and commercial vehicles on North Dakota’s Highway 6 Saturday was a speeding train. One vehicle after another. Traveling too fast and too close. Then, still on track, the entire train turned left and began racing down a rural dirt road.

It was clear why: This is where the Dakota Access Pipeline is being constructed. Fresh dirt marks where the pipeline has been and where it’s supposed to go. Construction is on a speedy timetable. As the company has testified in court it wants the 1,170 mile, $3.8 billion project up and running by January 1, 2017.

Yet the Standing Rock Sioux Tribe and several hundred people camped near by are determined to slow down that train, protect the waters of the Missouri River, and ultimately, help the country begin the most important conversation of this era about energy, climate and survival. (Previous: From Paris to Standing Rock, it’s about the climate choices ahead.)
So the machinery of the state of North Dakota has been engaged to stay on schedule. To be clear: North Dakota is acting as the trustee for the company, using what it considers the powers of state, to make this project so.

How far will North Dakota go?

Look at where it has been. The state has been an ally instead of a referee. Helping to craft a regulatory approach that avoided regulation. There is this crazy notion that the company did everything it was supposed to do so leave them alone. Yah. Because the plan was to avoid pesky regulation. It’s so much more efficient to be governed by official winks instead of an Environmental Impact Statement.

Even now the Dakota Access Pipeline figures the state (with allies in DC) will give in and sign the final paperwork. As the Energy Transfer Partners attorney told the court: “The status quo is that we’re in the middle of building a pipeline.” So, according to Oil and Gas 360, “the next step will be for ETP to acquire easements to drill the pipeline under Lake Oahe. In the most probable scenario, the Corps will grant permits while District Court litigation will continue. ETP would ‘likely get notice on easement status by the end of October and would take 60 days to drill under the lake with a full crew and no major disruptions.'”

No worries. The state’s machinery is supposed to make it so.

How far will North Dakota go?

They’ve already tried intimidation, humiliation, and the number of arrests are increasing. Pick on protectors, elders, journalists, famous people, anyone who could make the state appear potent. The latest tactic is to toss around the word “riot” as if saying it often enough will change its definition. “Authorities arrest 83 protesters during a riot Saturday,” Sheriff Kyle Kirchmeier posted on Facebook. “Today’s situation clearly illustrates what we have been saying for weeks, that this protest is not peaceful or lawful. It was obvious to our officers who responded that the protesters engaged in escalated unlawful tactics and behavior during this event. This protest was intentionally coordinated and planned by agitators.”

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Morton County Sheriff Kyle Kirchmeier posted this picture on Facebook as evidence of a “riot.”

What’s extraordinary about that statement is the sheriff’s own pictures show a peaceful protest. As Mel Brooks once wrote in Young Frankenstein: “A riot is an ugly thing.” This was not.

But the key phrase in the sherrif’s words is fuel for the state’s machinery, the words “… or lawful.” That is the important phrase because the state would like a protest that lets the status quo continue building a pipeline. The idea of civil disobedience is that there are unjust laws (or in this case, rigged laws) and there are people willing go to jail to highlight that injustice. The state lost its moral claim when it moved the pipeline route away from its own capital city to near the Standing Rock Nation.

Again, the question is, how far will North Dakota go?

Is the state ready to arrest hundreds? Thousands? Tens of thousands? And then what? The illogical conclusion to that question is too terrible to think about.

Yesterday a call went out from the camps for more people. People who, as Dallas Goldtooth of the Indigenous Environmental Network said, are willing to get arrested. People who will interrupt their lives so that this pipeline will go no further. It’s a call to a higher law than the one that’s codified by North Dakota. And for every water protector arrested, there will always be someone else ready to be next.

** Update **

Goldtooth reported Sunday on Facebook that a new camp is going up. “First tipi is up. Directly on the proposed path of the pipeline. We are directly between the pipeline and water now.” That will press the issue.
How far will North Dakota go? The military-style law enforcement base at Fort Rice sends its message: Whatever it takes. Status quo must have its a pipeline. That’s frightening.
Except. There is an antidote to those fears. It’s found among the people at the Standing Rock camps who continue to use prayer as their status quo.
Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports
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#NativeVote16 – Make no mistake: Standing Rock is on the ballot

A line to vote? Imagine the potential of adding 2,000, 3,000 people or more voters from the camps at Standing Rock. (Trahant photo)
Mark Trahant / TrahantReports

On social media and in real life we hear this often: “What can I do to help Standing Rock?” Some answer the question by donating money, many send supplies, and hundreds of people jump in their car and travel to the camps near Cannonball, North Dakota. Once there folks pray, some engage in direct action, and all of us learn more about the challenges facing humanity.

There is something else that can be done: Vote. 

Chase Iron Eyes, who is running for Congress from North Dakota, made that point on his web page this week. “I don’t believe North Dakota is racist, a certain percentage of the ReTrumplicans are—but we can vote them out—if you would only vote,” he wrote. “The majority of us are evolving in mutual respect. That’s our North Dakota.”

The congressional race is a stark example of these various differences: The incumbent, Rep. Kevin Cramer, wrote a position paper for Donald Trump that says any new climate policy should not “punish coal” or other fossil fuels. The Republican considers himself a climate change skeptic dismissing both international commitments made by the United States and the mountain of scientific evidence. 

But is this a moment when North Dakotans are open to a change? And, is there an evolving majority beyond North Dakota? How many allies are out there? How many people are ready for a significant policy shift when it comes to energy? 

The answers depend on how many people stand in line at polls, vote by mail,  and cast a ballot. If it’s a yes, or a hell yes, this could be the most significant organizing moment in American history.

Consider the camps at Standing Rock. Many of the water protectors arrived about a month ago and say they were willing to stay as long as it takes. That means (or it could mean) that they are residents under North Dakota law and could vote in the next election. How would that work? There would have to be some mechanism in place to certify the “new residents” either by identification or more likely by affirmation. If that is done now, then people at the camps can vote in the November election because North Dakota does not require voter registration.

Imagine adding 2,000, 3,000 people or more to the voter rolls in Morton County, ND. There could even be a write-in campaign for county offices (members of the county commission are currently running unopposed). This would send a message to those in office that the people at the camps are constituents, too.

This potential surge in voter registration would also promote the candidacies of the three Native Americans running statewide in North Dakota, Chase Iron Eyes, Ruth Buffalo, and Marlo Hunte-Beaubrun. Even better: The Spirit of Standing Rock could became a rallying cry that calls people across Indian Country to vote. Imagine if every community set a goal of as close to 100 percent turnout as possible.

Of course there are not enough American Indians to win on our own. We need allies. So when people say, “what can I do to help?” Answer, “vote.” 
Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com