Trump’s choice for Interior could risk salmon recovery, treaty rights

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Rep. Cathy McMorris Rodgers, R-Washington, will head to the Interior Department in the new Trump administration. (Photo by Gage Skidmore, Wikipedia Creative Commons)

Mark Trahant / Trahant Reports

Washington Rep. Cathy McMorris Rodgers is President-elect Donald J. Trump’s choice to head the Department of the Interior. If confirmed by the Senate, she would managed federal lands, including those that produce energy, as well as national parks. She would be oversee the Bureau of Indian Affairs.

McMorris Rodgers has all the necessary qualifications: Pro oil and gas development? Check. Climate change skeptic? Check. Skeptical about federal land ownership in the West? Check.

And, if you need one more check mark, her record in the House does not reflect her being a particularly close ally of tribes from the Republican side.

The Violence Against Women Act is one example. In 2013, McMorris Rogers met with Deborah Parker, then vice chairman of the Tulalip Tribes,  where they explored language that would get Republican support and open tribal jurisdiction on domestic violence. But when Rep. Tom Cole’s alternative bill surfaced that did just that, McMorris Rodgers voted no. Slate magazine said he dismissed tribal concerns as “a side issue” and voted the party line against the Violence Against Women Act.

The most problematic issue for Northwest tribes might be salmon.

She describes herself as “a champion of our dams and the power they produce.” She recently told Washington Ag Network:  “There are some who believe the Snake River dams are not allowing for adequate salmon recovery. However, thanks to collaboration between states, tribes, federal agencies, and private property owners, our salmon are returning at record levels. Since 2014, more than 2.5 million adult salmon and steelhead passed Bonneville Dam, the highest returns since they began counting in 1938. The Sockeye, Fall Chinook, and Coho were also among record and near-record runs as well.”

But will salmon recovery continue without removing dams on the Snake River? A federal judge in May rejected the government’s recovery plan and said the government had to calculate at least the potential of removing dams.

An irrigation group responded by calling for the government to give up on salmon and declare the species extinct (using an odd provision in the Endangered Species Act that assembles a committee, “the God squad,” to make a determination that nothing more can be done to save salmon). Darryll Olsen, representing The Columbia-Snake River Irrigators Association,  said in the Tri-City Herald, that “the association is hoping for a fair and equitable ruling that would end a cycle of repeated litigation, and escalating and more expensive plans for what is already the most extensive fish protection and enhancement program in the world.” The debate pits salmon recovery against the four Snake River dams that make it possible to barge agricultural products from Lewiston, Idaho, to Oregon ports. And the dams generate inexpensive electricity for some 800,000 Northwest homes.

As a Tri-City Herald headline put it: “People passionate about saving Snake River dams.” But then the newspaper didn’t talk to tribes who are just as passionate about saving salmon.

And, even if the God Squad is assembled, and even if the Snake River salmon are declared extinct, there will be more litigation ahead, including the assertion of tribal treaty rights.

But the Snake River dams will have the best advocate, the Secretary of Interior.

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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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

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

#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