The confrontation at Standing Rock in 2016 over the Dakota Access Pipeline began in 2012 over the Keystone XL pipeline. Toward the end of President Obama’s first term, Keystone was bringing tons of tar sands oil across the border from Canada, despite strong environmental opposition. It was supposed to extend across the U.S., south into the Gulf of Mexico, where it would be refined.
Since part of the pipeline would cross the territory of the Great Sioux Nation, specifically at Standing Rock, the tribal council decided they must stop it. They managed to bring things to a standstill. In 2015, President Obama refused to sign authorization allowing the pipeline to built from Canada into the United States.
Relief lasted only briefly. Suddenly, we started hearing announcements that Energy Transfer Partners (ETP), the same company responsible for Keystone XL, planned to build a pipeline from the Bakken oil fields along the northernmost border of North Dakota, right down onto the Great Sioux Nation.
ETP’s own data showed three other routes, all preferable to the one they ultimately chose. Two wouldn’t cross the Missouri River at all, and a third would pass 10 miles north of the 92 percent white community of Bismarck, North Dakota. However, in response to a strong opposition from that community, they changed their plans and routed the pipeline under the largest source of fresh drinking water for the Standing Rock Tribe.
To obtain the easements (land permissions) to build this pipeline, and to avoid violating the Federal Civil Rights Act, ETP fabricated a study showing no disparate impact on any minority community. Prior to the Federal Civil Rights Act, 95 percent of all noxious infrastructures—toxic waste dumps, recycling dumps, sewage plants, and pipelines, for example—had been built through minority communities. In 1997, however, President Clinton issued Executive Order 12898, which interpreted Title VI of the Act to prohibit these noxious infrastructures from being built in minority communities.
The Energy Transfer Partners study cited a detailed demographic survey of the impacted area, which seemed to show that nobody would be negatively impacted. Yet, crucially, their study area ended just a quarter mile from the reservation, which is 82 percent Native American. In addition, they avoided inclusion of the mandatory Environmental Impact Statement, an Environmental Protection Agency requirement for any such large-scale operation. They did this by applying for a string of half-acre building permits covering hundreds of miles.
In response to this bad-faith legal sleight-of-hand, the Lakota people, primarily those from the Standing Rock Sioux Reservation (one of nine Sioux reservations that straddle the Dakotas) began demanding meetings with the Obama administration. They had been successful in stopping the XL Pipeline, and they thought that they could be successful here, too.
But the corporation kept right on coming closer and closer with their little half-acre permits, while the U.S. Army Corps of Engineers kept accepting whatever the company said. Meanwhile, the Lakota filed statements in federal court pointing out places containing sacred relics, burial grounds, etc. That same night, however, Energy Transfer Partners moved heavy equipment 20 miles to sacred sites and bulldozed them under cover of darkness. They then argued that it was a fait accompli, and there was nothing more that could be done about it.
The Standing Rock Tribal Council, the only entity the United States government officially recognizes as having standing to speak on behalf of the people, could do nothing. According to Article 11 of the Indian Reorganization Act of 1934 (when the councils were given to the reservations), tribal councils have no authority to challenge the seizure of tribal land, no matter how unlawfully it was taken. On the other hand, they are the only entity that will be recognized as having any standing to speak officially on behalf of their people. It was a Catch-22, just one more trick from the white man to limit indigenous activism and power.
But this tribal council began having meetings with the Obama administration to figure out what to do. Meanwhile, some of the young people in the tribe decided they would go out and sit and hold ceremonies on the land in the pathway of the pipeline. This was their land; it was recognized as theirs pursuant to the Treaty of 1851 and then again in 1868. Soon more and more people went up to spend a few days or a week or so camping with them in the pathway of the pipeline.
At the beginning of this demonstration, it was comparatively friendly. People would go and chain themselves to the bulldozers, and the police would come over, gripe a bit, then take the trouble to cut them off. Some people may have spray-painted the bulldozers with peace signs and the like. It was a typical non-violent demonstration. But then things took a turn for the worse. A private security company, Leighton Security, brought in savage police dogs and started siccing them on the demonstrators and telling them they had to stand back behind a particular line.
At the same time, Energy Transfer Partners hired another private security corporation called TigerSwan, staffed by militarized mercenaries similar to Blackwater. In fact, TigerSwan’s founder, James Reed, had been the head of the anti-terrorism division for Blackwater in Iraq and Afghanistan. Like Blackwater, TigerSwan employs ex-Special Forces people, who are essentially anti-terrorist throat cutters. Hardened veterans of the Special Forces are specialists in covert operations for the CIA or the Pentagon. For example, they’ll swim underwater for half an hour at nighttime to blow up a bridge.
During the Second Gulf War, Vice President Dick Cheney rejected the Secret Service as his private security detail, instead hiring Blackwater. They also started tasking Blackwater with going out and doing nighttime “surveys” in the Middle East. The Blackwater mercenaries would come back having killed any number of suspected jihadists.
Eventually, over 53 percent of all of the “military” deployed in Iraq and Afghanistan were, in fact, from Blackwater and other private military-style corporations. Private companies were doing more and more U. S. military work. Returning from Iraq, these companies and their successors became available to do police work—at the same time that police forces across the country had been buying military equipment left over from the two Gulf wars.
This is the larger backdrop to what happened at Standing Rock. Events there continued—and moved to domestic terrain—a pattern of militaristically subjugating the local indigenous population in order to protect fossil fuel investments.
In the early 1990s, when word started getting out that the Soviet Union would back out of the 75-year Cold War, the first Bush Administration—with Dick Cheney as Secretary of Defense—contrived the First Gulf War to occupy the Middle Eastern oil fields. They were basically renewing a 60-year exclusive lease agreement on Middle Eastern oil. They felt that the seven major Western oil companies—the “Seven Sisters” of Arab-American oil corporations—had dibs on all of the oil in the entire Middle East.
In response, the inhabitants of the region under the umbrellas of the Taliban, the Islamic Brotherhood, and others, rose up against the foreign oil companies and tried to drive them out—a jihad. They blew-up embassies in Africa and the Marine Corps barracks in Lebanon, and they blew a hole in the side of the U.S.S. Cole in Yemen, trying to get them—and us—to leave.
That didn’t happen. Rather, the U.S. government reacted by proclaiming that our American interests were being threatened by these “jihadist terrorists,” who, from their own perspective, were trying to get America out of the Middle Eastern oil fields and leave their holy land. We generated a major anti-terrorist furor that eventually paved the way for the right wing of the Republican party to take over.
It began right after the dissolution of the Soviet Union on December 31, 1991. In a series special meetings inside George H. W. Bush’s Defense Department the following Monday, Paul Wolfowitz, Scooter Libby, David Addington, and Elliot Abrams prepared a comprehensive 1992 United States Defense Department policy planning document. It recognized the United States as the remaining superpower on the planet but decided that rather than cutting back on our military budget, this was the moment to increase our military budget so that we could establish full spectrum dominance over every square foot of the planet.
The purpose of that entire endeavor was to “maintain continued privileged access to the strategic raw materials needed by the United States.” You can see Henry Kissinger’s fingerprints all over that—he said the same thing in the course I took from him at Harvard in 1968.
That’s the backdrop. Fast forward to 2016 at Standing Rock. On December 4th, the prayerful protesters seemingly won a major victory. The Obama Administration—the Justice Department, the Bureau of Indian Affairs, and the Department of Interior—all wrote opinion letters requiring a full-scale Environmental Impact Study before the pipeline could lawfully be finished. Any elation would be short-lived. Despite President Obama, ETP pressed forward with the knowledge that Hillary Clinton had lost the election on November 8th—and that Donald Trump’s presidency was just around the corner.
So it was that, even though the Federal Government, including the Justice Department, had issued the requirement for a full-scale Environmental Impact Study, as soon as Trump got into office, he unilaterally reversed the whole thing. In committee he said, and I’m paraphrasing, “No matter what the law is, no matter what the environmental issues are, I want you to give that easement. I want you to take a relook at all the data, and I want you to come up with the opinion that you don’t need to have an Environmental Impact Study.”
And that’s what he did. That’s what they did. ETP kept on building. Many Lakota people said, “Look: this is unlawful, what is happening now. This is without the support of the Obama Administration, without the support of the Justice Department, without the support of anything except Trump, coming on the day after he ordered the exclusion of all Muslim people from entering the country. The second thing he did was ordering the Dakota Access Pipeline to be built.”
And, by the way, he ordered the XL Tar Sands pipeline to be built, too. It is no longer about energy independence, but energy “dominance.” As Trump said, “An energy dominant America will export to markets around the world, increasing our global leadership and our influence.”
Not a single drop of this oil is going to anyone in the United States. It’s all going down to the Gulf of Mexico, where it will be sold to foreign markets to increase the profits of oil corporation stockholders. And that is what the confrontation at Standing Rock was really all about.
The initial legal challenges could do nothing to stop it. While a court in Washington D.C. put off issuing a temporary restraining order, ETP finished the pipeline. By that time, Lakota People’s Law Project lead counsel Chase Iron Eyes and 75 others had given up on waiting for the court. They went up to a high piece of land and began a major religious ceremony to call the world’s attention to the fact that the so-called “victory” under the Obama Administration was not holding. The oil company didn’t like that.
On February 1, 2017, the state moved in. There were at least 843 arrests from the protests. The water protectors of Standing Rock were charged with criminal offenses ranging from obstructing an officer in the performance of his duties to, in Chase’s case (and only Chase’s case), inciting a riot. Chase, as you may know, was also the Democratic Party nominee for North Dakota’s single seat in the United States Congress in 2016. He’s an activist, but he’s no starter of riots. This charge was simply the culmination of a coordinated attack.
When TigerSwan arrived in September of 2016, it changed the face of the entire operation. They held “Order of Battle” meetings every day, and hearkening back to their experience in the Middle East, characterized the people defending their land as “indigenous, religiously driven, jihadists.” As they went into full military mobilization, they started telling their workmen to “carry guns while you’re working on the pipeline.” They told the National Guard and the state police that the Lakota and their allies were all “terrorists” who planned to blow up the pipeline and that they suspected people from Palestine and other places had joined them.
TigerSwan forwarded this scenario to all the state officials to ensure they were on high alert, leading to attacks on the demonstrators, who endured stun grenades, pepper spray, and water cannons in twenty-degree weather. It’s all on video.
This is why we’re fighting back in court. As part of Chase’s defense in North Dakota, we’re waging a counterattack. We will point out our good-faith belief that Chase and others have been targeted by a criminal anti-civil rights conspiracy depriving the Native people of the Great Sioux Nation of equal protection of the law. ETP gave protection to the 92 percent white community up in Bismarck but did not give the same kind of legal considerations and legal protection to the Native people. This is nothing less than class-based, racially discriminatory invidious animus—the term of art in the Federal Civil Rights Act.
Energy Transfer Partners has also filed a major federal criminal racketeering complaint against Greenpeace, Earth First, and others, asserting that they were all engaged in spreading terrible lies about the oil industry by accusing it of exacerbating global climate change. They also claim that these environmental groups recruited terrorists from around the world to come destroy the pipeline. They’ve pulled out all the stops.
Note that their lawyer also works for Trump. Like Trump and his fossil fuel cronies, he is defiant in his direct contradiction of proven fact. While they walk away from the Paris agreement to reduce the global greenhouse gas emissions and the Intergovernmental Panel on Climate Change at the United Nations, the world suffers. Global temperatures are at an all-time high, the Gulf Stream is starting to slow, and scientists are getting concerned about it dissipating and changing the entire temperate zone of our planet. The permafrost fields across the Northern Hemisphere are starting to thaw, and there are literally billions of tons of methane gas waiting to fill the atmosphere.
We’re truly confronted with a massive crisis. Now Trump has issued an executive order opening up all Indian reservations to oil drilling, coal mining, and uranium mining for nuclear power plants. He wants more of those. He wants to open up the National Parks for oil drilling, and the Pacific, Atlantic and Gulf Coasts to new oil platforms. Not because there’s an energy crisis in the United States, and not to establish energy independence, but in order to establish major domination over the entire energy market in the world, and have it be fossil fuel at the expense of the planet that sustains us.
In 2018, justice for the people who stood tall at Standing Rock has become the tip of the spear for the battles to preserve Native rights and our environment. Pipelines must be stopped. They represent the template for this administration and for the petroleum industry to show what it is they can do, in defiance of the entire world. The people have to take a stand. Not only is this battle not over, in many ways it’s just beginning.
In addition to Chase’s landmark defense, which could set precedents to protect our first Amendment rights to free assembly and free speech, I’m working with Greenpeace, Earth First, and the other groups using the Racketeer Influenced and Corrupt Organization (RICO) Act to counter-claim against the fossil fuel axis. Thirty-two years ago I filed the most effective RICO case ever put forth in the United States—against the criminal Iran-Contra enterprise of Oliver North. We ran those guys into the ground. I know what a RICO suit looks like, and their suit is total baloney, based on libel and slander. The great thing about a libel case is that the defense is truth. So we have an opportunity to establish what the truth of the matter really is and put all of those issues on the line. Would you like to be a lawyer and go up against the petroleum industry, while they assert that it’s a lie to say that they’re contributing to global greenhouse gasses? That’s what I thought. That’s the opportunity that we have.
Global climate change is the crisis of our time. Native people have stood up; they’ve confronted the bad actors using spiritual power, prayers, and peaceful action. And they’ve gathered lawyers together to help them, so that’s what we’re going to do.
Activist filmmaker Chuck Banner, Lakota lawyer and activist Chase Iron Eyes, Daniel Sheehan, and lawyer and environmental activist, Lanny Sinkin, the legal team defending the Water Protectors and Chase in particular, Bismarck, North Dakota, July 2018.
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Daniel Sheehan continues…
We welcome Joel’s contribution to our cause. His photographs are not only exquisitely beautiful, but particularly appropriate to our struggle.
Long before the camera was invented, the men and women of the Great Sioux Nation, as well as Native Americans across the continent and indigenous peoples everywhere, developed deep and complex relationships with the natural world. They lived within its beauty and honored it with a profound nature-inspired spirituality. They recognized and respected the great power of the unseen.
Joel and his camera, on the other hand, show us a visible natural world, one that is so astonishing in its sublime beauty that it smoothes the way for us to understand the power of the bond between indigenous peoples and our natural world. These beautiful images bring us closer in spirit to our Native brothers and sisters who live in sustainable relationship with that world—a relationship that, sadly, is now being threatened by those who view the natural world through the narrow and destructive lens of material profit.
We at the Romero Institute and the Lakota People’s Law Project are especially grateful to Joel for dedicating this exceptional book to helping us defend the Water Protectors of Standing Rock.
DANIEL P SHEEHAN, Constitutional and public interest lawyer, political activist, educator and public speaker, graduate of Harvard Law School. He was counsel for Daniel Ellsberg in the Pentagon Papers Case, for the family of Karen Silkwood, and he worked on the Watergate Break-In Case, the Greensboro Massacre Case, and the defense of the Black Panthers. He played a key role in the exposure of the Iran-Contra Scandal, and he has amassed evidence of who the real key players were in the JFK Assassination. He established the Christic Institute and later the Romero Institute as a base of operations for his public interest work. Currently he is lead counsel for the Lakota People’s Law Project, working to uphold the rights of the Great Sioux Nation to oppose the Dakota Access Pipeline and defend those, like Lakota lawyer Chase Iron Eyes, who have been targeted by authorities for protesting the pipeline. His autobiography is The People’s Advocate: The Life and Legal History of America’s Most Fearless Public Interest Lawyer (2013). http://www.romeroinstitute.org