President Joe Biden promised us he’d take tribal sovereignty seriously. Under his leadership, the Keystone XL pipeline hit pause and Sec. Deb Haaland became the first-ever Native American to lead the Interior Department. Yet when given the opportunity to shut down the controversial Dakota Access pipeline Friday, the president did not. Instead, his team kicked that power back to the courts, leaving many Indigenous advocates scratching their heads.
Throughout all the back and forths, the filing of legal memos, and cost-benefit analyses surrounding the crude oil pipeline, we seemed to have lost sight of why this lawsuit exists in the first place. A private energy company constructed a 1,172-mile long pipeline through the ancestral and sacred lands of several tribal nations despite their pleas not to.
Welcome to The Frontline, where we’re assessing what comes next for the Indigenous youth whose futures are at the heart of this battle. I’m Yessenia Funes, climate editor of Atmos. The Dakota Access pipeline continues to pump hundreds of thousands of crude oil a day despite the courts explicitly noting that the project does not meet legal standards—and despite Biden having a clear opportunity to shut it down, leaving Indigenous tribal advocates confused and betrayed.
The first resistance camp against the Dakota Access pipeline was formed on April 1, 2016. The Sacred Stone Camp arose near Cannonball, North Dakota, out of a love for water and land, sparking a worldwide movement for Indigenous rights. One key woman made it happen: LaDonna Brave Bull Allard.
On the morning of April 10, 2021, Allard died of brain cancer. Weeks earlier, on the fifth anniversary of Sacred Stone Camp’s birth, Indigenous youth whom Allard mentored delivered a petition to federal leaders in D.C. demanding President Joe Biden shut down the Dakota Access pipeline. On April 9, 2021, the president and his team chose not to listen. Allard died without seeing an end to the 1,172-mile-long “black snake,” as Indigenous opponents refer to the many oil and gas pipelines across the U.S. Allard’s death, however, is further fuel to those who remain. The fight continues—in honor of Allard and all that she helped start five years ago.
“With her passing, we know that the best way to honor her is to continue fighting the Dakota Access pipeline and all the black snakes across Turtle Island,” said Monique Runnels, a mentor of the Standing Rock Youth Council who’s been organizing against the pipeline since 2016.
The legal efforts against the crude oil pipeline, which has been operational since 2017, don’t end with this latest court action. Judge James Boasberg, who’s been on the case since the beginning and ordered to pause operations last year, is giving developer Energy Transfer 10 days to outline the economic implications of a shutdown, according to Bloomberg. After that, he may very well rule to shut down the pipeline again. Or he may not. Either decision will likely result in either Energy Transfer or the sovereign tribal nations to file an appeal and drag the legal proceedings out longer. If no one orders a shut down, the pipeline will ostensibly continue operating until the Army Corps of Engineers conducts a proper environmental review.
“We here at Standing Rock are disappointed that the decision is to allow the pipeline to operate, but I can’t say that we are surprised,” said tribal councilman Brandon Mauai, in a press call last week. “Standing Rock, we are a resilient people here, and we’ve been fighting for just our inherent human right, but this pipeline doesn’t just affect Standing Rock—but millions of people.”
“It’s embedded in us and our culture to fight for Unci Maka, Grandmother Earth.”
While we don’t know the discussions or strategies behind the Biden administration’s passive approach Friday, Stanford University Environmental Law Professor Deborah Sivas speculates politics were to blame. The administration has been quick to amend other environmental lawsuits regarding deregulation from the Trump administration, so it is a little unusual to see the administration not even do that in this case. The ultimate step—shutting down the pipeline—would’ve been a powerful show of solidarity with Indian Country, but it also would have pissed off right-wing politicians whose support Congress needs to make Biden’s proposed $2 trillion infrastructure plan a reality. Do we need to rehash the conservative response to Biden’s killing of Keystone XL?
“That’s my best guess about what’s going on, that it’s just a political hot potato, and I know they could be making a statement about tribes and fossil fuels by taking a hard line, so it’s probably frustrating to a lot of the type of groups that I work with,” Sivas said, whose Environmental Law Clinic at Stanford University has represented clients like the Pit River and Winnemem Wintu tribes in California. “There’s a lot of hope out there… We represent some tribes, and they really feel like they’re going to have the ear—for the first time ever—of the secretary of Interior, so it’s not a great start to have the admin punt.”
What this lawsuit highlights, unfortunately, are the limitations of our legal system. Standing Rock sued to pause the project when it was still under construction in 2016. President Barack Obama recognized the pipeline’s shortcomings and denied a key federal permit before leaving office. President Donald Trump, however, quickly gave the pipeline a stamp of approval upon entering office. The courts still hold power throughout all this, but environmental laws can be highly procedural. They haven’t exactly welcomed the urgency that environmental groups or tribal nations bring to the table. Instead, the cases can drag on and on—all while a private company continues to build a project that the federal government unlawfully approved.
This element of tribal sovereignty gets lost throughout the legalese. Sivas noted that the National Historic Preservation Act is an environmental law meant to protect the interests and cultures of tribal nations, but it requires consultation—nothing more. The developer and federal government can examine concerns tribal nations bring forth, but they also have the power to override them. “Those are the limits, and this particular pipeline has just been just caught in the politics,” Sivas said.
Standing Rock became a global awakening for tribal people everywhere seeking justice—and inspiration for the climate movement seeking to end oil and gas infrastructure. It shouldn’t have become a political debate, but it did. Putting bodies in the line of bullets, water hoses, and violent dogs didn’t stop the illegal project. Neither have the courts—not yet.
President Biden had the power to do what water protectors and the courts have struggled to do; an inaction that speaks volumes. Allard must be looking down at her fellow water protectors from the stars with generations of resilient land stewards behind her. Frontline opponents won’t stand down—even if the president won’t stand with them.
“As Native people, we’re used to barriers—we’re used to things being hard,” Runnels said, speaking of carrying on Allard’s legacy. “This is just another one of those things that we’re going to push through and overcome. It’s within us—it’s in our DNA. This is what we do. It’s embedded in us and our culture to fight for Unci Maka, Grandmother Earth.”