Judge’s Ruling on Standing Rock a Second Chance for Justice

The federal court decision could start a new chapter in the DAPL saga, beginning with dropping prosecution of water protectors.

#noDAPL protest in San Francisco in September 2016. Photo credit: Peg Hunter / Flickr (CC BY-NC 2.0)

By Mark Trahant | Posted June 20, 2017

Remember the “rule of law” invoked at Standing Rock?

That was the phrase used over and over by law enforcement from the state of North Dakota and Morton County. It was supposed to serve as a box to limit First Amendment and civil disobedience actions by water protectors opposing the Dakota Access oil pipeline crossing under the Missouri River.

But rule of law didn’t apply to treaty rights. Morton County Sheriff Kyle Kirchmeier told The Bismarck Tribune that was beyond his job parameters. “That cannot be worked out in Morton County,” the sheriff told the newspaper. “That has to be worked out with the federal government.”

This statement was and still is nonsense. The Constitution of the United States declares treaties to be the supreme law of the land. That’s higher than state law. And weightier than the claim of a property right on federal property. And significantly more potent than the urgency to construct an oil pipeline before the price of oil drops.

To enforce the so-called rule of law, virtual armies were sent in to arrest hundreds of people for speaking out. And today the county continues to cloud people’s lives, even manipulating the prosecution to ensure a guilty outcome without trial.

But here’s the thing: The Petrostate of North Dakota lost the rule of law argument a long time ago.

It lost the debate when investigative reports showed that the state colluded with the company’s hired thugs to turn a powerful, beautiful, and nonviolent protest into a “jihadist” moment. “As policing continues to be militarized, and state legislatures around the country pass laws criminalizing protest, the fact that a private security firm retained by a Fortune 500 oil and gas company coordinated its efforts with local, state, and federal law enforcement to undermine the protest movement has profoundly anti-democratic implications,” as reported by The Intercept last month.

All the company, the county, and the state, had to do was to be patient. Accommodate the camps. Learn from the community. Take heart from any lessons that might surface. Perhaps, even then, there would be disagreements, but at least there would also be respect. And there would have been an honorable place for the rule of law. Instead the company, state, and county, opted for might makes right.

This week a federal court had its own interpretation of the rule of law.

U.S. District Judge James E. Boasberg wrote: “Lake Oahe holds special significance for the Standing Rock and Cheyenne River Sioux Tribes. Its creation necessitated the taking of approximately 56,000 acres of some of ‘the best land’ from Standing Rock’s Reservation, as well as 104,420 acres of Cheyenne River’s trust lands. Today, Standing Rock members rely on Lake Oahe’s waters to service ‘homes, a hospital, clinics, schools, businesses, and government buildings throughout the Reservation’ and to support agriculture and industrial activities. The lake is also the primary source of water for the Cheyenne River Reservation. Both tribes consider the waters to be ‘sacred’ and ‘central to [their] practice of religion.’”

In other words: Water is life. And that notion is backed up by a treaty relationship between the Standing Rock and Cheyenne River nations. My favorite part of the ruling is that the obligation requires “early involvement.”  Or as the regulations say, that “means that a tribal government is given an opportunity to comment on a proposed action in time for the tribal government to provide meaningful comments that may affect the decision.”

Clearly that’s part of the rule of law, too.

So what now? There will be a continued legal back and forth. Some rulings will favor the tribes, others the pipeline company. And perhaps there will be a new Environmental Impact Statement. That’s expected and fits in with the rule of law.

This is a moment for the Dakota Access pipeline partners, the state of North Dakota and Morton County, to change tactics, too. This is the moment where the rule of law – and respect – can earn their way back into the conversation. I’d start by ending the criminal prosecution of water protectors. It’s excessive and clearly an affront because it so disrespected the rule of law. The company and state can start over, too, building on this court decision to start a new chapter.

So many lessons came from what happened at Standing Rock. Let respect for the rule of law be one lesson learned.

Mark Trahant wrote this article for YES! Magazine. Mark is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota and a member of The Shoshone-Bannock Tribes. He writes a regular column at YES!, where he is a contributing editor. On Twitter @TrahantReports.

This article was first published by YES! Magazine. It’s re-published here under this Creative Commons licence.

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