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Carter: Standing Rock

By now, most of us have heard of the Dakota Access Pipeline and the protests against it that have been marked by increasingly violent confrontation. And yet, few of us may be aware of the legal underpinnings that led to this modern day story of struggle for native sovereignty and human rights.

In 1851 and 1868, after years of aggression by the U.S. Government, the government and native people signed two treaties known as the Fort Laramie Treaties. In addition to ending hostilities with the Native Americans, these treaties created the Great Sioux Reservation and reserved millions of acres of land for the exclusive use and benefit of the tribes. Then, fewer than 10 years later, Congress passed the Allotment and Dawes Acts, allowing individual tribal members to acquire title to land and then sell it to non-members. The result: tribal lands went from 138 million acres in 1870 to 48 million acres by 1934.

Today, however, the Standing Rock Sioux maintain that because of treaty violations and the legal status of lands never formally ceded by the tribe, non-tribal landowners did not legally acquire those lands – including those they’re now leasing to the Pipeline. In fact, the tribe recently asserted that it could “reclaim” those lands through the use of eminent domain – a power that governments have to take private property for public use. And, they may just be right.

The U.S. Supreme Court concluded in Montana v. U.S. that tribes have authority over non-tribal owners of land on tribal reservations if the conduct of that non-tribal owner threatens the “health or welfare of the tribe.” While the exact status of the lands the Sioux and protesters now occupy may be in dispute, it is possible that the Tribe may be able to reassert ownership of these lands through eminent domain if it can show that the pipeline threatens tribal “health or welfare.”

To be sure, these are novel legal arguments that haven’t been thoroughly tested in the Federal Court system, but it’s widely accepted that when rights are trampled anywhere they are trampled everywhere. And, the battle for indigenous sovereignty is not simply an issue of the past. It’s front and center in Standing Rock and will play out on the plains of North Dakota and in the courtrooms of America in the weeks, months and years to come.

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
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