Indigenous people of North America are still fighting for their treaty rights after two centuries of having their rights periodically violated by the Federal Government.
Today there is an ongoing dispute over an oil pipeline in the Dakota Sioux Nation. An oil company wants to run the pipe near Sioux sacred ground but the real threat is that they want to run it under the Missouri river, the nation’s largest waterway, which provides drinking water to not only the Sioux Nation but many towns and cities down the length of the river.
The peaceful demonstration has been met with rubber bullets, and water hoses in sub-freezing weather. Various veterans groups are pledging support to the protesters.
Below is an exclusive Newsblaze interview with journalist Matt Barkhausen, one of the Native reporters covering the story:
“The Oceti Sakowin (Sioux Nation) has fiercely maintained its independence since the days of Lewis and Clark. Sioux Nation citizens attempted to charge the expedition with a toll for crossing their sovereign territory. The confrontation became quite heated until an elder intervened. Later, Lewis and Clark would write slanderous lies about the Sioux people in their journals in an attempt to portray them as violent and savage. “How dare they!” they must have thought, as the Sioux Nation citizens asserted their sovereignty over their territory. The traditional Oceti Sakowin (Sioux Nation) has maintained this political position throughout its history. Today, Sioux Nation citizens are asserting their rights to their treaty territory.
On November 25th, 2016 the US Army Corps of Engineers issued an eviction notice to the indigenous water protectors defending their water supply from potential poisoning through illegal construction of the Dakota Access pipeline. Dakota Access is illegal for a number of reasons. As Robert Kennedy, Jr. has pointed out, Dakota Access LLC is in direct violation of the National Environmental Policy Act for its refusal to do a full Environmental Impact Statement (EIS). More importantly, Energy Transfer Partners, its subsidiary Dakota Access LLC, and the Army Corps are in violation of both Fort Laramie treaties, particularly the 1851 treaty. The territory the pipeline threatens to cross is within the territory promised to the Sioux Nation by the 1851 treaty.
In 1972, during a period known as the Red Power Movement, various organizations, particularly the American Indian Movement a national march from the West Coast to Washington, D.C. It was aptly named the “Trail of Broken Treaties.” The US has violated all of the more than 300 treaties it has signed with American Indian nations – this despite the fact that Article VI of the US Constitution says that “all treaties made…shall be the supreme law of the land.” American Indian activists of the era therefore delivered the “20 Points Position Paper.” The paper demanded honoring of existing treaties, and the reopening of the treaty making process. Native people had grown tired of Congress legislating with impunity in Indian Country. The treaty making process acknowledges the national character of indigenous nations, and demonstrates that indigenous peoples have a political “nation to nation” relationship with the United States.
The Red Power generation was successful in gaining positive legislation for Native people, but was unsuccessful in getting the US to uphold its treaty obligations. The Red Power Movement turned into an international movement for indigenous peoples’ rights. The first international conference on indigenous peoples was held in Geneva, Switzerland in 1977. The Oceti Sakowin (Sioux Nation) was, both then and now, a key player in the international movement for indigenous peoples’ rights. In that same year, 1977, American Indian Movement leader Russell Means (Oglala Lakota) delivered the “Declaration of Continuing Independence” from the Standing Rock Reservation, which also happens to be where the present day fight against Dakota Access takes place.
Earlier, in 1973, A.I.M. was forced to do battle with militarized police in the infamous standoff at Wounded Knee. Traditional Lakotas had begged A.I.M. to come and protect them from the vicious puppet regime of a corrupt tribal government doing the bidding of the F.B.I. It was here that Means and the traditional Lakotas originally asserted their continuing independence, declaring the Wounded Knee hamlet to be the “Independent Oglala Nation” or ION. Traditional Lakotas continue to carry this spirit of defiance against the illegal assertions of US jurisdiction over their treaty territories. It is of great historical consequence that the late Russell Means was Oglala Lakota, as was the great Lakota patriot Tasunke Witko (Crazy Horse). Today, it is of great historical significance that the fight against Dakota Access takes place at Standing Rock.
Standing Rock is the territory of the Hunkpapa Lakota Oyate kin, these are Tatanka Iyotanka (Sitting Bull’s) people. Like Crazy Horse, Sitting Bull and his traditional Lakotas were defiant to the last, maintaining the independence of their people from US hegemony. It was men like these that were responsible for the Fort Laramie treaties in the first place. It is something that the US is loathe to admit, but the Ft. Laramie treaties are the result of a total military defeat and unconditional surrender of the United States to the Oceti Sakowin (Sioux Nation). Unfortunately, the US decided to secretly rewrite the treaty before the ink was even dry. The “Chicago rewrite” presumes to allow the US to build such infrastructure projects like Dakota Access through Sioux treaty lands, but there are a number of problems here.
First, the Oceti Sakowin (Sioux Nation) did not sign the rewrite; moreover, the rewrite has to be ratified by a majority of Congress and signed by the President to be considered legal under the US Constitution. This leads to an interesting discussion with regard to the existing treaties that the Sioux Nation did sign. As the Cheyenne River Sioux pointed out in their response to the Army Corps eviction notice, the Fort Laramie treaties have “never been abrogated.” Treaty abrogation is one of the deplorable and unjust precedents under the federal common law of the US.
Despite the US Constitution’s assertion that treaties shall be the “supreme law of the land,” the US federal courts have interpreted this to mean that the US Congress has so-called “plenary power” (meaning absolute) over indigenous nations and therefore presumably the right to “unilaterally abrogate treaties.” This means that the US can violate, break or “abrogate” any treaty it likes, according to the federal courts. Even under this racist and unjust precedent, the Army Corps letter does not stand. Abrogation would require a majority vote of Congress. Traditional indigenous peoples continue to reject the notion that any branch of the US government has any right whatever to abrogate treaties. This principle is a threat to the stability of international law, and the very notion of the rule of law itself. For this reason, indigenous peoples have pursued the recognition of their rights under the international legal regime.
Unfortunately, the present regime favors the rights of sovereign states above and beyond any and all other entities that might be argued to have some level of international legal personality. However, indigenous peoples were still successful in getting the international society of states to pass the United Nations Declaration on the Rights of Indigenous Peoples. The US was, unsurprisingly, among the very last states to sign the UNDRIP, as were the other settler colonial states – Canada, New Zealand, and Australia. Nevertheless, President Obama signed the UNDRIP in 2010, presumably agreeing to its implementation.
UNDRIP requires what is called “free prior and informed consent” of indigenous peoples for any infrastructure project, like Dakota Access, that a state may wish to build through indigenous territories. Therefore, not only is Dakota Access in violation of the domestic US laws, such as the NEPA statute, and in violation of the international law of the Fort Laramie Treaty, but is also in violation of international law in the form of the UNDRIP. Many will suggest the UNDRIP is “not binding,” but this is only because they do not understand the operation of international law.
International law is built upon both positive and customary law. Positive laws are the various treaties, declarations, and conventions to which the US is a signatory. Customary law arises out of how these instruments are implemented and interpreted by the various states in actual practice. There are plenty of examples around the world demonstrating that the UNDRIP is being implemented by states, meaning that the US is in violation of international law in its continuing failure to implement UNDRIP in its domestic law and policy relating to indigenous peoples. The most egregious present day example of these violations is Dakota Access.
Like the Lakota leaders who preceded him, Standing Rock Sioux Tribal Chairman Dave Archambault II has appealed to the UN on behalf of his people. The UN has already vehemently condemned the US for Dakota Access and the police brutality daily perpetrated to defend it. Water protectors were most horribly brutalized on November 20 and 21. They were sprayed with a water cannon in freezing temperatures, shot with rubber bullets, maced, tear gassed, and had concussion grenades thrown at them. One woman’s retina was detached and another nearly had her arm blown off. An elder almost died, but was revived on site. President Obama’s inaction on the issue continues to be an international outrage. The coalition of water protectors has rightly asserted the treaty rights of the Sioux Nation to their 1851 treaty territory. They are defying the Army Corps eviction notice and bracing for another confrontation that will likely be just as brutal. The future of civil liberties, as well as of the human species, rests on standing with Standing Rock.”
Statement given by
Matt Barkhausen (Tuscarora – People of the Cypress nation)
Fourth World Creative
Fourth World Chronicle.