First off, let's review the recent timeline. Not the overall recent timeline of illegal and/or irrational executive orders, alarming appointment confirmations, venomous tweets, and government-sponsored gaslighting. That timeline is much too cluttered, much too emotionally exhausting, for a single blog post. I would be working on Bead 4 for the better part of 2017.
I'm talking about a very narrow timeline here: the Dakota Access Pipeline project, or DAPL. I'm not even talking about all of DAPL. Its proposed length is 1,172 miles, after all, a great diagonal slash from North Dakota to Illinois. I'm just talking about that one little slice of DAPL that makes the news every day, the slice that has come to embody Big Business vs. Environment, and U.S. Government vs. Native Peoples, not to mention U.S. Government = Big Business. It's the last holdout on the DAPL route, a 7-mile segment that crosses the Missouri River's Lake Oahe, just half a mile upstream of the northern boundary of the Standing Rock Sioux Reservation, and a few miles upstream of the Reservation's water intake facilities. It's the slice that has been the subject of international protest, litigation, presidential memos, myriad decisions and about-faces by the U.S. Army Corps of Engineers, police brutality, and constant prayer.
There is the question of where to start the DAPL timeline. Does it begin in August 2016, when most Americans, including me, first learned of the Water Protectors at Lake Oahe? Or do we back up to June 2014, when the project was first announced by Energy Transfer Partners? Perhaps we need to go deeper into history, to when Seven Brothers sparked Seven Council Fires, the Oceti Sakowin people.
We could follow the Oceti Sakowin, or Sioux, from their origin at Wind Cave in the Black Hills, to their current homes throughout the Great Plains of the U.S. and Canada. We could study how the Oceti Sakowin, whose council fires once burned close enough together that messages between the bands were carried by long-distance runners, eventually got cut off from one another, compressed onto reservations spaced out across the West. We could inspect the treaties and legislation. There was the Fort Laramie Treaty of 1851, which established a vast area of the West as Indian territory to which the U.S. government did not have claim. The area included sizeable chunks of present day South Dakota, Wyoming, and Nebraska, and smaller chunks of Montana and North Dakota. The North Dakota chunk extended north to the Heart River, well past the location of the present-day conflicts at Lake Oahe.
There was also the Fort Laramie Treaty of 1868, which established the Great Sioux Reservation across the western half of South Dakota. The 1868 treaty incentivized living on the reservation with promises of food and financial support, but left wiggle room in the form of unceded lands in present-day North Dakota, Montana, Wyoming, Nebraska, and Colorado, where the Sioux retained hunting and fishing rights, and where no whites were allowed to settle. Once again, the unceded lands in North Dakota extended north to the Heart River.
We all know what happened to those treaties. As white settlers became interested in the unceded lands, and as gold turned up in the Black Hills, they eroded away to nothing. The government became increasingly fixated with keeping the Sioux on the reservation. In December 1875, it channeled this fixation into official policy: Indian people camped on the unceded lands must report immediately to the reservation, or be regarded as hostile. Next came the Acts of Congress, the government's fallback method of rubber-stamping its misdeeds. The 1876 Act wrote the Black Hills out of the reservation; the sacred birthplace of the Oceti Sakowin was no longer theirs. The 1889 Act removed 9 million acres from the already diminished Great Sioux Reservation, fragmenting it into six much smaller reservations, one of which was Standing Rock.
What of the clashes between the Sioux and the U.S. military? There have been many. Historically, there was the Dakota War of 1862, Red Cloud's War in 1866, the Battle of Little Bighorn, or Custer's Last Stand, in 1876, and the Wounded Knee Massacre in 1890, to name just a few. What of the modern clashes? In 1948, the U.S. Army Corps of Engineers began construction of the Oahe Dam on the Missouri River, despite strong opposition from the Standing Rock Sioux. With the formation of Oahe Lake, 25 percent of the reservation populace was displaced to higher ground. In 2015, the Army Corps struck again, starting the formalities of approving DAPL. And the Oceti Sakowin fought back.
The Army Corps' role in DAPL is several-fold. First, the Army Corps regulates impacts to most of our nation's natural waters--including 200 waterways crossed by DAPL--under the Clean Water Act. It issues Clean Water Act permits for impacts to such waters. Projects that will have a substantial impact on waters must obtain coverage under a permit devised just for that project, a.k.a. an individual permit. Projects that will have only "minimal adverse effects," as the Army Corps website puts it, may qualify for coverage under a fast-track general permit, a.k.a. a nationwide permit. Examples the website gives of projects eligible for nationwide permits are "minor road activities, utility line backfill, and bedding." I'm not sure what bedding is, but it indeed sounds minor. Not mentioned as good candidates for nationwide permits are 1,172-mile-long crude oil pipelines. And yet--wouldn't you know it?--that is exactly how the Army Corps permitted DAPL under the Clean Water Act. In Corps-speak, DAPL is actually a set of 200 very minor, "single and complete" projects, coincidentally all laid out in a perfect line.
The Army Corps also issues permits under the Rivers and Harbors Act of 1899 for potential impacts to its own civil works projects. These are commonly referred to as Section 408 permits. With DAPL, Section 408 permitting came into play with the pipeline's proposed crossing of federal flowage easements at the Missouri River upstream of Lake Sakakawea, and of federally-owned property at Lake Oahe. In considering whether to issue Section 408 permits for DAPL, the Army Corps was obligated, under the National Environmental Policy Act (NEPA), to study the potential environmental consequences of that action. And it did--sort of.
Under NEPA, before a federal agency (in case, the Army Corps) can take an action (in this case, issuing Section 408 permits), it must evaluate the impacts of that action on the environment. The rigor of that evaluation depends on the magnitude of the project's impacts. An agency may first prepare an Environmental Assessment (EA), a relatively light-duty study, to determine how serious the impacts will be. An EA touches, but does not dwell, on project impacts to various environmental factors--air and water quality, biological resources, archaeological resources, socioeconomic issues--and ultimately issues a verdict on the significance of these impacts. If an EA determines that the project will have a significant effect on the environment, a more comprehensive study, the Environmental Impact Statement (EIS), is required. EISs generally delve deeper into the environmental implications of a project than EAs do, and also have a hefty public input requirement lacking in the EA process.
At this point I should mention that, on the Environmental Protection Agency's NEPA website, there is a lot of talk about federal agencies preparing EAs and EISs. Certainly that is the case sometimes. But it is also perfectly legal for the project applicant--i.e. the developer--to prepare these documents. Anything seem funny about that? No, I didn't think so.
By now, I'm sure you know where this is going. The Army Corps published a Draft EA for DAPL's crossing of its property and flowage easements in December 2015. The Draft EA was prepared not by the Army Corps, but by Dakota Access LLC. The Draft EA, as you might expect, found nothing much wrong with the project. As required by NEPA, it compared the potential impacts associated with DAPL's passage under the Missouri River and Lake Oahe with those likely to arise from alternative project designs, and found the preferred version of the project to be far superior. It also compared the planned passage with the "no action" alternative, a hypothetical situation in which the Section 408 permits would not be issued, and the pipeline would not be permitted to cross Army Corps property and easements. You might think that the "no action" alternative would be the most environmentally-friendly option, as it would entail... well, nothing. But according to Dakota Access LLC, you would be wrong. The paragraph below, gleaned from the Cultural and Historic Resources section of the EA, is repeated in nearly identical form, for nearly every environmental resource considered in the document.
There is so much wrong with that paragraph that I don't know where to start. First off, why must the objectives of the project be met under the "no action" alternative? Why doesn't "no action" get to be as it sounds? No action. No permits, no pipeline, no 570,000 gallons of oil per day pumped beneath one of America's greatest rivers, beneath the main water source, and site of treaty hunting and fishing rights, for two reservations. Why must the project objectives be indelible? It would be one thing if we were in an emergency situation, like if light sweet crude were coursing unchecked from the Bakken fields, and the only way to keep the citizenry of North Dakota from drowning was to funnel it under the Missouri right quick. But this is not an emergency. This is just rich guys trying to make money.
Dakota Access LLC goes out on a limb and acknowledges "temporary and minor impacts" to air quality and noise, geology and soils, water resources, vegetation, wildlife resources, aquatic resources, land use and recreation. Fortunately, these impacts can be mitigated by constructing the project exactly as planned. For example, one mitigation measure highlighted by the Army Corps in its preface to the Final EA is that the pipeline will be constructed using horizontal direction drilling, which was the only way the pipeline was ever going to be constructed. Other mitigations include the implementation of plans that are standard in the construction industry: a Stormwater Pollution Prevention Plan, a Spill Prevention, Control, and Countermeasure Plan, and Horizontal Directional Drilling Construction and Contingency Plans, among others.
The Army Corps made the Draft EA available for public comment for about a month, until January 11, 2016. Strangely, although the Draft EA was evidently prepared in a climate of kinship and mutual understanding with the Standing Rock Sioux, the Tribe wasn't keen on how the document turned out. As the Army Corps itself puts it in its July 25, 2016 Finding of No Significant Impact (or FONSI; think Happy Days), "the Standing Rock Sioux Tribe (SRST) and other tribal governments object to the pipeline and its alignment because its proposed route passes under Lake Oahe a few miles upstream of the SRST water intakes." The tribes are "also concerned that the installation of the pipeline and a potential leak or rupture could damage or destroy cultural and sacred resources in the area," and maintain that the Army Corps "did not adequately consult on the DAPL pipeline alignment." The Corps goes on to pooh-pooh these concerns by citing the developer's impeccable EA, which clearly shows that the tribes were adequately consulted, and that the pipeline will pose no risk. The Corps finishes strong, asserting that DAPL's crossing of the Missouri River and Lake Oahe is "not injurious to the public interest" and would not "significantly affect the quality of the human environment." The project is so benign, in fact, that further study under an EIS is unwarranted. As a final flourish, the U.S. Army Corps of Engineers notes that it is now, as ever, in full compliance with the Law of the Land.
On the same day that it issued its FONSI for DAPL's crossing under the Missouri River and Lake Oahe, the Army Corps issued the Section 408 permits for those crossings, and nationwide permits for the other 200 waterways along the pipeline route. The only thing missing, at this point, was an easement pursuant to the Mineral Leasing Act, which the Lake Oahe crossing required. It appeared that DAPL was full steam ahead.
But so was the resistance. At this point, the Oceti Sakowin camp at Lake Oahe was in its fourth month. Runners from the nine Oceti Sakowin bands had already completed a 500-mile relay run from the camp to the Army Corps District Headquarters in Omaha, and had met with Corps officials to voice their concerns. On July 25, the day of all the bad news, another relay run was in progress, from the camp to Washington, D.C. Although the runners elected to stay the course, the new focus of the Oceti Sakowin became the camp itself. Water protectors from all around the nation--both "relatives," or fellow Natives, and "friends," or non-Native sympathizers--began arriving at the camp en masse, and the camp population swelled from dozens to thousands. Meanwhile, on July 27, the Standing Rock Sioux Tribe filed a lawsuit against the U.S. Army Corps of Engineers in federal court, alleging violation of multiple federal statutes, including the Clean Water Act, National Historic Preservation Act, and NEPA.
The reason most of us first heard about DAPL in August 2016 is because that's when things started to get really big, and really ugly. By the time David Archambault II, chairman of the Standing Rock Sioux Tribe, wrote his op-ed piece in the New York Times on August 24, ninety tribes were represented at the Oceti Sakowin camp. On September 3, Democracy Now! reporter Amy Goodman arrived at Lake Oahe to cover an escalating situation: Dakota Access LLC was attempting to bulldoze a site that the Standing Rock Sioux Tribe had identified to the Court as containing sacred stone features and the graves of "chiefs, warriors, and Bear Medicine healers." Hundreds of men, women, and children stormed through the construction fence in an attempt to stop the destruction, and Amy Goodman narrated with emotion as private security contractors went after the Water Protectors with attack dogs and pepper spray, and as a Water Protector was thrown, belly-down, on the ground. The next day, September 4, Dakota Access LLC destroyed the sacred site. On September 8, Morton County issued a warrant for Amy Goodman's arrest, on charges of criminal trespass.
After the bulldozing of the sacred site, the Standing Rock Sioux Tribe stepped up its legal game. They filed for a temporary restraining order to stop construction (granted), appealed the Court's decision to deny a preliminary injunction (outstanding), requested an injunction pending appeal (denied). The result of these efforts was that construction at Lake Oahe was stop-and-go for much of the fall. The temporary restraining order halted work for three days, and an administrative injunction granted by the appeals court stopped it for more than three weeks, until the injunction pending appeal was denied on October 9.
Also around this time, the feds put on their Good Guy suits. On September 9 and October 10, after two DAPL-friendly Court decisions, the Department of the Interior, Department of the Justice, and Department of the Army issued joint statements requesting that Dakota LLC voluntarily stop construction near Lake Oahe while the agencies considered whether that portion of the project required further environmental review. Dakota Access LLC was unmoved by these statements, however, and continued working. And so the Water Protectors stayed on at Lake Oahe, and their numbers grew.
There is the question of where to start the DAPL timeline. Does it begin in August 2016, when most Americans, including me, first learned of the Water Protectors at Lake Oahe? Or do we back up to June 2014, when the project was first announced by Energy Transfer Partners? Perhaps we need to go deeper into history, to when Seven Brothers sparked Seven Council Fires, the Oceti Sakowin people.
We could follow the Oceti Sakowin, or Sioux, from their origin at Wind Cave in the Black Hills, to their current homes throughout the Great Plains of the U.S. and Canada. We could study how the Oceti Sakowin, whose council fires once burned close enough together that messages between the bands were carried by long-distance runners, eventually got cut off from one another, compressed onto reservations spaced out across the West. We could inspect the treaties and legislation. There was the Fort Laramie Treaty of 1851, which established a vast area of the West as Indian territory to which the U.S. government did not have claim. The area included sizeable chunks of present day South Dakota, Wyoming, and Nebraska, and smaller chunks of Montana and North Dakota. The North Dakota chunk extended north to the Heart River, well past the location of the present-day conflicts at Lake Oahe.
There was also the Fort Laramie Treaty of 1868, which established the Great Sioux Reservation across the western half of South Dakota. The 1868 treaty incentivized living on the reservation with promises of food and financial support, but left wiggle room in the form of unceded lands in present-day North Dakota, Montana, Wyoming, Nebraska, and Colorado, where the Sioux retained hunting and fishing rights, and where no whites were allowed to settle. Once again, the unceded lands in North Dakota extended north to the Heart River.
We all know what happened to those treaties. As white settlers became interested in the unceded lands, and as gold turned up in the Black Hills, they eroded away to nothing. The government became increasingly fixated with keeping the Sioux on the reservation. In December 1875, it channeled this fixation into official policy: Indian people camped on the unceded lands must report immediately to the reservation, or be regarded as hostile. Next came the Acts of Congress, the government's fallback method of rubber-stamping its misdeeds. The 1876 Act wrote the Black Hills out of the reservation; the sacred birthplace of the Oceti Sakowin was no longer theirs. The 1889 Act removed 9 million acres from the already diminished Great Sioux Reservation, fragmenting it into six much smaller reservations, one of which was Standing Rock.
What of the clashes between the Sioux and the U.S. military? There have been many. Historically, there was the Dakota War of 1862, Red Cloud's War in 1866, the Battle of Little Bighorn, or Custer's Last Stand, in 1876, and the Wounded Knee Massacre in 1890, to name just a few. What of the modern clashes? In 1948, the U.S. Army Corps of Engineers began construction of the Oahe Dam on the Missouri River, despite strong opposition from the Standing Rock Sioux. With the formation of Oahe Lake, 25 percent of the reservation populace was displaced to higher ground. In 2015, the Army Corps struck again, starting the formalities of approving DAPL. And the Oceti Sakowin fought back.
The Army Corps' role in DAPL is several-fold. First, the Army Corps regulates impacts to most of our nation's natural waters--including 200 waterways crossed by DAPL--under the Clean Water Act. It issues Clean Water Act permits for impacts to such waters. Projects that will have a substantial impact on waters must obtain coverage under a permit devised just for that project, a.k.a. an individual permit. Projects that will have only "minimal adverse effects," as the Army Corps website puts it, may qualify for coverage under a fast-track general permit, a.k.a. a nationwide permit. Examples the website gives of projects eligible for nationwide permits are "minor road activities, utility line backfill, and bedding." I'm not sure what bedding is, but it indeed sounds minor. Not mentioned as good candidates for nationwide permits are 1,172-mile-long crude oil pipelines. And yet--wouldn't you know it?--that is exactly how the Army Corps permitted DAPL under the Clean Water Act. In Corps-speak, DAPL is actually a set of 200 very minor, "single and complete" projects, coincidentally all laid out in a perfect line.
The Army Corps also issues permits under the Rivers and Harbors Act of 1899 for potential impacts to its own civil works projects. These are commonly referred to as Section 408 permits. With DAPL, Section 408 permitting came into play with the pipeline's proposed crossing of federal flowage easements at the Missouri River upstream of Lake Sakakawea, and of federally-owned property at Lake Oahe. In considering whether to issue Section 408 permits for DAPL, the Army Corps was obligated, under the National Environmental Policy Act (NEPA), to study the potential environmental consequences of that action. And it did--sort of.
Under NEPA, before a federal agency (in case, the Army Corps) can take an action (in this case, issuing Section 408 permits), it must evaluate the impacts of that action on the environment. The rigor of that evaluation depends on the magnitude of the project's impacts. An agency may first prepare an Environmental Assessment (EA), a relatively light-duty study, to determine how serious the impacts will be. An EA touches, but does not dwell, on project impacts to various environmental factors--air and water quality, biological resources, archaeological resources, socioeconomic issues--and ultimately issues a verdict on the significance of these impacts. If an EA determines that the project will have a significant effect on the environment, a more comprehensive study, the Environmental Impact Statement (EIS), is required. EISs generally delve deeper into the environmental implications of a project than EAs do, and also have a hefty public input requirement lacking in the EA process.
At this point I should mention that, on the Environmental Protection Agency's NEPA website, there is a lot of talk about federal agencies preparing EAs and EISs. Certainly that is the case sometimes. But it is also perfectly legal for the project applicant--i.e. the developer--to prepare these documents. Anything seem funny about that? No, I didn't think so.
By now, I'm sure you know where this is going. The Army Corps published a Draft EA for DAPL's crossing of its property and flowage easements in December 2015. The Draft EA was prepared not by the Army Corps, but by Dakota Access LLC. The Draft EA, as you might expect, found nothing much wrong with the project. As required by NEPA, it compared the potential impacts associated with DAPL's passage under the Missouri River and Lake Oahe with those likely to arise from alternative project designs, and found the preferred version of the project to be far superior. It also compared the planned passage with the "no action" alternative, a hypothetical situation in which the Section 408 permits would not be issued, and the pipeline would not be permitted to cross Army Corps property and easements. You might think that the "no action" alternative would be the most environmentally-friendly option, as it would entail... well, nothing. But according to Dakota Access LLC, you would be wrong. The paragraph below, gleaned from the Cultural and Historic Resources section of the EA, is repeated in nearly identical form, for nearly every environmental resource considered in the document.
Under the "no action" alternative, Dakota Access would not construct the proposed Project and no impacts on cultural and historic resources would occur. However, if the objectives of the Project are to be met under the "no action" alternative, other projects and activities would be required and these projects could result in their own impacts on cultural and historic resources, which would likely be similar to or greater than the proposed Project. Nevertheless, the impacts associated with a future project developed in response to the "no action" alternative are unknown, while no impacts on cultural and historic resources would occur as a result of the Proposed Action, as described in the sections below.
There is so much wrong with that paragraph that I don't know where to start. First off, why must the objectives of the project be met under the "no action" alternative? Why doesn't "no action" get to be as it sounds? No action. No permits, no pipeline, no 570,000 gallons of oil per day pumped beneath one of America's greatest rivers, beneath the main water source, and site of treaty hunting and fishing rights, for two reservations. Why must the project objectives be indelible? It would be one thing if we were in an emergency situation, like if light sweet crude were coursing unchecked from the Bakken fields, and the only way to keep the citizenry of North Dakota from drowning was to funnel it under the Missouri right quick. But this is not an emergency. This is just rich guys trying to make money.
Also, what kind of universe is it where we must conclude that the impacts to cultural and historic resources associated with unknown future projects would be "similar to or greater than" those of the proposed project? Why not less than? Ah, but here Dakota Access LLC is one step ahead of me. There is no "less than" when it comes to the project's impacts on cultural and historic resources because, as is plainly written at the end of the paragraph, the impacts are presently zero. No impacts. This is borne out in the document's claim that the "the Standing Rock [Tribal Historic Preservation Office] had indicated... that the Lake Oahe site avoided impacts to tribally significant sites." Similarly, other sections of the Draft EA report "no disproportional impacts on minority or low-income populations" and "primarily beneficial impacts on social and economic conditions."
Dakota Access LLC goes out on a limb and acknowledges "temporary and minor impacts" to air quality and noise, geology and soils, water resources, vegetation, wildlife resources, aquatic resources, land use and recreation. Fortunately, these impacts can be mitigated by constructing the project exactly as planned. For example, one mitigation measure highlighted by the Army Corps in its preface to the Final EA is that the pipeline will be constructed using horizontal direction drilling, which was the only way the pipeline was ever going to be constructed. Other mitigations include the implementation of plans that are standard in the construction industry: a Stormwater Pollution Prevention Plan, a Spill Prevention, Control, and Countermeasure Plan, and Horizontal Directional Drilling Construction and Contingency Plans, among others.
The Army Corps made the Draft EA available for public comment for about a month, until January 11, 2016. Strangely, although the Draft EA was evidently prepared in a climate of kinship and mutual understanding with the Standing Rock Sioux, the Tribe wasn't keen on how the document turned out. As the Army Corps itself puts it in its July 25, 2016 Finding of No Significant Impact (or FONSI; think Happy Days), "the Standing Rock Sioux Tribe (SRST) and other tribal governments object to the pipeline and its alignment because its proposed route passes under Lake Oahe a few miles upstream of the SRST water intakes." The tribes are "also concerned that the installation of the pipeline and a potential leak or rupture could damage or destroy cultural and sacred resources in the area," and maintain that the Army Corps "did not adequately consult on the DAPL pipeline alignment." The Corps goes on to pooh-pooh these concerns by citing the developer's impeccable EA, which clearly shows that the tribes were adequately consulted, and that the pipeline will pose no risk. The Corps finishes strong, asserting that DAPL's crossing of the Missouri River and Lake Oahe is "not injurious to the public interest" and would not "significantly affect the quality of the human environment." The project is so benign, in fact, that further study under an EIS is unwarranted. As a final flourish, the U.S. Army Corps of Engineers notes that it is now, as ever, in full compliance with the Law of the Land.
On the same day that it issued its FONSI for DAPL's crossing under the Missouri River and Lake Oahe, the Army Corps issued the Section 408 permits for those crossings, and nationwide permits for the other 200 waterways along the pipeline route. The only thing missing, at this point, was an easement pursuant to the Mineral Leasing Act, which the Lake Oahe crossing required. It appeared that DAPL was full steam ahead.
But so was the resistance. At this point, the Oceti Sakowin camp at Lake Oahe was in its fourth month. Runners from the nine Oceti Sakowin bands had already completed a 500-mile relay run from the camp to the Army Corps District Headquarters in Omaha, and had met with Corps officials to voice their concerns. On July 25, the day of all the bad news, another relay run was in progress, from the camp to Washington, D.C. Although the runners elected to stay the course, the new focus of the Oceti Sakowin became the camp itself. Water protectors from all around the nation--both "relatives," or fellow Natives, and "friends," or non-Native sympathizers--began arriving at the camp en masse, and the camp population swelled from dozens to thousands. Meanwhile, on July 27, the Standing Rock Sioux Tribe filed a lawsuit against the U.S. Army Corps of Engineers in federal court, alleging violation of multiple federal statutes, including the Clean Water Act, National Historic Preservation Act, and NEPA.
- SPECIAL MESSAGE FROM BEYOND THE FOURTH WALL -
At this point, I have to take a breather. I've been working on this blog post for five days, and I'm worn out. I haven't even gotten to what my Bead 4 action was. I didn't see this coming; didn't think I'd start to put together a simple timeline and would get swamped by the details, the insidious loopholes and shenanigans, the unfairness of it all. I should confess, though, that environmental review is what I do for work, and so I guess I was bound to become perversely fascinated with the legal technicalities of DAPL. I hope this post hasn't become exceedingly boring. If you're still with me, I promise to stop belaboring the Code of Federal Regulations. And I promise to get around to my Bead 4 action in short order.
The reason most of us first heard about DAPL in August 2016 is because that's when things started to get really big, and really ugly. By the time David Archambault II, chairman of the Standing Rock Sioux Tribe, wrote his op-ed piece in the New York Times on August 24, ninety tribes were represented at the Oceti Sakowin camp. On September 3, Democracy Now! reporter Amy Goodman arrived at Lake Oahe to cover an escalating situation: Dakota Access LLC was attempting to bulldoze a site that the Standing Rock Sioux Tribe had identified to the Court as containing sacred stone features and the graves of "chiefs, warriors, and Bear Medicine healers." Hundreds of men, women, and children stormed through the construction fence in an attempt to stop the destruction, and Amy Goodman narrated with emotion as private security contractors went after the Water Protectors with attack dogs and pepper spray, and as a Water Protector was thrown, belly-down, on the ground. The next day, September 4, Dakota Access LLC destroyed the sacred site. On September 8, Morton County issued a warrant for Amy Goodman's arrest, on charges of criminal trespass.
After the bulldozing of the sacred site, the Standing Rock Sioux Tribe stepped up its legal game. They filed for a temporary restraining order to stop construction (granted), appealed the Court's decision to deny a preliminary injunction (outstanding), requested an injunction pending appeal (denied). The result of these efforts was that construction at Lake Oahe was stop-and-go for much of the fall. The temporary restraining order halted work for three days, and an administrative injunction granted by the appeals court stopped it for more than three weeks, until the injunction pending appeal was denied on October 9.
Also around this time, the feds put on their Good Guy suits. On September 9 and October 10, after two DAPL-friendly Court decisions, the Department of the Interior, Department of the Justice, and Department of the Army issued joint statements requesting that Dakota LLC voluntarily stop construction near Lake Oahe while the agencies considered whether that portion of the project required further environmental review. Dakota Access LLC was unmoved by these statements, however, and continued working. And so the Water Protectors stayed on at Lake Oahe, and their numbers grew.
Celebrities increasingly aligned themselves with Standing Rock. Leonardo DiCaprio, Pharrell Williams, and Jason Momoa had been speaking out against the pipeline for several months by that point, and now famous people started to show up on the ground: Shailene Woodley, Mark Ruffalo, Jesse Jackson. At about the time Amy Goodman became wanted, Morton County also issued an arrest warrant for Green Party presidential candidate Jill Stein, after a video surfaced of her spray-painting a DAPL bulldozer. And on October 10, the same day as the second Good Guy federal memo, Shailene Woodley was arrested with 26 others while peacefully praying at a work site.
As the fall progressed, the Oceti Sakowin camp reached a zenith of over 10,000 souls. It became a city of sorts, and provided all the services you would expect in a city--food, sanitation, health, even child care. But because it was a city of relatives and friends, and was heavily subsidized by donations, everything was provided at no cost. It became a well-oiled machine. Jake Ratner of The Nation described waking each morning to the sound of a pre-dawn loudspeaker: "It's time to get up. This is not a vacation. We've got work to do, relatives." After prayer ceremonies, people involved in actions would be given their assignments for the day. Many others would stay behind to support the operation of the camp--preparing food, chopping wood, building shelters in advance of winter.
The police presence became overbearing. Marta D.'s November 22 post on the Daily Kos describes seeing 20 to 50 police cars at any given time, all parked on the north side of the Backwater Bridge. The Backwater Bridge passes over an arm of Lake Oahe at Cantapeta Creek. Although out-of-bounds of the Standing Rock Sioux Reservation and the main Oceti Sakowin camp, it has served as a front-line camp for Water Protectors, and has also been the site of well-known clashes with law enforcement. On November 20, Water Protectors attempted to clear a barricade on the bridge in order to re-open Highway 1806, which had been closed for nearly a month at that point and was posing safety issues for the Camp and Reservation. The Morton County Sheriff's Department, National Guard units, and other law enforcement jurisdictions responded by firing a host of non-lethal weapons on the Water Protectors for hours. Water cannons, tear gas canisters, rubber bullets, and concussion grenades were used; the water cannons persisted as temperatures dropped to 23 degrees. The Oceti Sakowin camp reported injuries to over 300 people that night, including one case of cardiac arrest, one arm facing possible amputation, and many instances of hypothermia. All of the Water Protectors were unarmed.
The police presence became overbearing. Marta D.'s November 22 post on the Daily Kos describes seeing 20 to 50 police cars at any given time, all parked on the north side of the Backwater Bridge. The Backwater Bridge passes over an arm of Lake Oahe at Cantapeta Creek. Although out-of-bounds of the Standing Rock Sioux Reservation and the main Oceti Sakowin camp, it has served as a front-line camp for Water Protectors, and has also been the site of well-known clashes with law enforcement. On November 20, Water Protectors attempted to clear a barricade on the bridge in order to re-open Highway 1806, which had been closed for nearly a month at that point and was posing safety issues for the Camp and Reservation. The Morton County Sheriff's Department, National Guard units, and other law enforcement jurisdictions responded by firing a host of non-lethal weapons on the Water Protectors for hours. Water cannons, tear gas canisters, rubber bullets, and concussion grenades were used; the water cannons persisted as temperatures dropped to 23 degrees. The Oceti Sakowin camp reported injuries to over 300 people that night, including one case of cardiac arrest, one arm facing possible amputation, and many instances of hypothermia. All of the Water Protectors were unarmed.
Not long after Backwater Sunday, as it is known to the Oceti Sakowin, the Good Guy feds resurfaced. On December 4, the U.S. Army Corps of Engineers announced that it would not, at present, be granting the Mineral Leasing Act easement for DAPL's crossing of Lake Oahe. The matter deserved further environmental review, the Corps said. The agency would start preparation of an EIS, in which it would give substantial attention to tribal treaty rights, the potential for an oil spill in Lake Oahe, and alternative routes.
Of course, I am telling this story with the benefit of hindsight. We know now that it was too little, too late from the Good Guy feds. They probably knew it, themselves, when they made their December 4 announcement. By then, Election Day had come and gone. They were making an eleventh-hour concession blessed by President Obama. They knew that, come January 20, they would have to change into their Bad Guy suits. The last thing they did, just before their transformation, was to publish a notice in the Federal Register soliciting public comments on the EIS. That was on January 18.
Of course, I am telling this story with the benefit of hindsight. We know now that it was too little, too late from the Good Guy feds. They probably knew it, themselves, when they made their December 4 announcement. By then, Election Day had come and gone. They were making an eleventh-hour concession blessed by President Obama. They knew that, come January 20, they would have to change into their Bad Guy suits. The last thing they did, just before their transformation, was to publish a notice in the Federal Register soliciting public comments on the EIS. That was on January 18.
One week later, all of us liberal white Americans felt like we'd been overtaken by a hostile race. It was unbelievable. Everything was falling apart around us. Promises broken, policies upended, a hateful new language on the tongue of our elected officials, every time we turned on the news. But to the Oceti Sakowin and the rest of the original inhabitants of our nation, it probably felt like business as usual. On January 24, the newly-minted President Trump issued a Presidential Memorandum to the Secretary of the Army. In a nutshell, he instructed the Secretary to review and approve DAPL in an expedited manner, consider rescinding or modifying the Good Guy memo of December 4, consider NEPA satisfied, and issue the Mineral Leasing Act easement for passage under Lake Oahe.
Who knows what the period between January 24 and February 7 was like for the U.S. Army Corps of Engineers. Maybe they struggled. Maybe there were some holdout ethical types who didn't want to bend to the caprices of the new administration. Kudos to them, if they existed. But in the end, on February 7, the Army Corps issued a Notice of Termination of the EIS process. They were done reviewing DAPL, evidently for good. The public comment period was over, and the comments received on the EIS to date didn't matter. It was over. The next day, February 8, the Army Corps issued the Mineral Leasing Act easement for the Lake Oahe crossing, the last piece.
The Standing Rock Sioux Tribe is still active in the courts, and as of the writing of this post, there are still Water Protectors on the ground, albeit a skeleton crew. Shortly after the Bad Guy feds issued the easement, military veterans began making the trek to Standing Rock, pledging to serve as a human shield for the remaining Water Protectors. It was the second such mission for the vets; in December, over a thousand vets came to the Oceti Sakowin camp for the same purpose. At a ceremony celebrating the Army Corps' December 4 decision, a group of veterans lined up by rank, knelt down before Sioux elders, and begged forgiveness for the myriad crimes of their military forbears. They allowed as how these were their crimes, too. They committed to serving the Oceti Sakowin however they were needed.
Chief Leonard Dog Crow of the Sicangu Lakota people offered forgiveness. He said, "We do not own the land. The land owns us."
Chief Leonard Dog Crow of the Sicangu Lakota people offered forgiveness. He said, "We do not own the land. The land owns us."
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| Photo courtesy of Democracy Now! |
I was born a white girl in Washington, D.C. My father was serving in the U.S. Army at the time, the same institution that slaughtered hundreds of Native people at Wounded Knee in 1890. The same institution that issued the Mineral Leasing Act easement to DAPL a week ago. My father is a child psychiatrist and a gentle soul; he has never been in combat. But still. I was raised Mormon, a religion that believes Native people are all descended from a single family that came to the Americas from Israel, by boat, about 2,500 years ago. More specifically, Native people are derived from the wicked half of that family, the Lamanites. My uncle served a Mormon mission on the Navajo reservation in the 1970s. He converted some people. Many years later, at a bar in West Yellowstone, Montana, I drank beer with a Navajo man and apologized on behalf of my uncle. The man was not one of his converts. He forgave me, and named me "white feather" in Navajo. I am saying all this to tell you that I am roughly the most unqualified person in the world to speak for Native people, or tell their story. At the same time, Native customs and spiritual beliefs resonate with me deeply. I am as white as it gets, and I hate that sometimes.
I hardly need to mention my Bead 4 action. You know it from the title. But I promised I would come back to it, and so here I am. (The "short order" part was an unintentional fib.) Bead 4 is in progress, and will be for some time. I am divesting from Bank of America and U.S. Bank. Neither is among the 17 worst-of-the-worst banks that are actually funding DAPL, but I understand that both have issued lines of credit to Energy Transfer Partners. And that's enough. Bank of America is my checking account, and savings for both my son and me. U.S. Bank is my credit card and home mortgage. I will confess, I am not actually about to refinance my mortgage, but I am preparing to put my home on the market. Bead 4 won't be officially complete until it sells, likely this summer. In the meantime, I will string a bead, and say a prayer for the Oceti Sakowin.
Wow, you've done your research! I was struck by the connections you made at the end between your (our!) heritage and the oppression of Native people. I love you, White Feather.
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