Tag Archives: Tribe

Dakota Access Approved: Resistance Unfolds

With blatant disregard for tribal and environmental health, the U.S. Army Corps of Engineers has approved the majority of permits for the Dakota Access Pipeline — a project that will transport crude oil through several states and over 200 separate water crossings.

The Corps announced approval of nearly all of the project’s necessary permits last week, despite ongoing vocal and legal opposition from landowners, activists, and tribes of the Dakotas. Requests by the Environmental Protection Agency, the U.S. Department of Interior and the Advisory Council on Historic Preservation for a full environmental review prior to the permits’ approval were similarly ignored.

Undeterred by months of collective outrage, construction on the project has already begun. Energy Transfer’s spokesperson stated that their goal is to have the pipeline in operation by the end of this year.

For the Standing Rock Sioux Tribe, the pipeline is more than just another show of federal dismissal to tribal sovereignty, but a looming threat to the community’s water supply and their entire way of life. The disheartening news of approval for Dakota Access, however, has not stalled tribal activism against it.

By carrying crude oil through native territory, under the Missouri River, and across waterways significant to tribal peoples, the Dakota Access Pipeline is a high stakes gamble for the lives the Standing Rock Sioux. The simple fact of the matter is that fracking oil and then transporting massive distances is not safe and it threatens wildlife and human water sources. Between 2006 and 2014, there were 8,690 reported incidents of oil and brine spills in North Dakota’s oil industry; the completion of Dakota Access will surely increase this number to record-high levels.

On Wednesday, the Standing Rock Sioux Tribe filed a lawsuit against the Army Corps through Earthjustice in Washington D.C. The complaint cites a violation of National Historic Preservation Act, as well the Corps’ dismissal of tribal input and culturally significant sites when permitting the project.  

“We have laws that require federal agencies to consider environmental risks and protection of Indian historic and sacred sites,” said Dave Archambault II, chairman of the Standing Rock Sioux Tribe. “But the Army Corps has ignored all those laws and fast-tracked this massive project just to meet the pipeline’s aggressive construction schedule.”

Proposed by the Texas-based company Energy Transfer, Dakota Access is slated to cost 3.4 billion dollars and stretch 1,164 miles across North Dakota, South Dakota, Iowa, and Illinois. Also called the Bakken pipeline, it will carry 450,000 barrels of fracked oil from the Bakken Shale Formation in North Dakota to Illinois, where it will then be transported to Gulf Coast refineries.

Prioritization of Big Oil over Native American lives is troubling, but it’s not new.  “The Corps has a long history of going against the wishes and health of tribal nations” said the Indigenous Environmental Network.

Projected to be built in close proximity to the Standing Rock reservation’s northern border, the pipeline threatens contamination of the Missouri River. Because of this, the tribe launched a campaign called “Rezpect Our Water” several months ago, which has since gained international visibility and celebrity endorsements. The grassroots initiative involved tribal leaders and youth to raise awareness about the potential ramifications of the pipeline.

The ignorance of the Army Corps to the necessary legal and ethical parameters is systemic within federal attitudes toward native lands. It is simply unacceptable that a whole tribe’s way of life be put at risk for the sake of large energy revenues.

What’s worse is that the tax revenues being offered to other counties along the pipeline’s path will not be offered to Sioux County. Meaning, for the Standing Rock Sioux Tribe, their land will be put at risk while they will see no financial benefit from it.

The fight, as activists and indigenous communities have voiced, is far from over: “this decision,” said the Indigenous Environmental Network, “will not deter resistance against the dirty Bakken pipeline”.

Less than a week following the permits’ approval, there are already reports of vigilante resistance. Around 6am yesterday morning, Iowa news outlets began reporting fires on three separate construction sites along the Dakota Access route in the center of the state.

Jasper County Sheriff John Halferty noted that the fires seemed to be intentionally set along the pipeline, targeting the equipment, and caused a million dollars in damage to the machinery. There are no suspects thus far in the ongoing investigation.

This morning, protesters are gathered in Bismarck, North Dakota, on the grounds of Capitol to demand that legislators put a stop to the pipeline’s construction.

The U.S. Army Corps of Engineers refused to acknowledge the push-back of native interest groups, their allies, and environmental agencies when beginning construction; in doing so, they have opened up the door to new and increased forms of counteraction.

When Native Americans are totally discounted from major infrastructure decisions and their safety and ways of life are not prioritized, it shows the unethical framework in which development occurs in this country. Approving the Dakota Access pipeline is a dangerous and irresponsible move on behalf of the U.S. Army Corps. It reflects the devaluation of Native American lives and their ecological sovereignty, something that must perpetually be resisted.

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Supreme Court Case May Endanger Native Women

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The legitimacy of tribal courts and the Violence Against Women Act is being questioned in a case that could cause severe negative repercussions for Native women. United States v. Bryant will determine if uncounseled tribal court misdemeanor convictions in domestic violence cases can be used in federal court for repeat offenders.

This case is a life and death matter for Native women according to legal experts like Tim Purdon, co-chair of the American Indian Law and Policy Group at Robins Kaplan Law Firm.

“Because I had the ability to use tribal court convictions, I could charge serial offenders and better protect Indian women and save lives. This is a tool that allowed us to intercede a lot earlier,” said Purdon in an interview with Indian Country Today Media Network. “No victim should be put in the position where their abuser goes free because he doesn’t accept the legitimacy of tribal court convictions.”

A member of the Northern Cheyenne tribe, Michael Bryant Jr. already has more than 100 tribal court convictions from 1997 to 2007, including five domestic abuse convictions to which he pled guilty. After being convicted in 2011 for two different cases of domestic violence, Bryant was found eligible for a habitual offender status and was indicted by Montana’s federal district court.

However, Bryant appealed to the Ninth Circuit Court of Appeals and asked to have the federal indictment dismissed. He argued that using his previous misdemeanor convictions to prove habitual offender status under the Violence Against Women Act (VAWA) violated his Fifth and Sixth Amendment rights. The court agreed with Bryant in September 2014 and his indictment and 46-month federal prison term were thrown out.

The case appealed to the Supreme Court in December 2015 for its 2016 session, and arguments were heard last month. A decision on the legitimacy of tribal convictions is expected by late June.

Bryant is arguing that tribal court convictions should be treated as non-existent for the purposes of prosecution under federal law. If the Supreme Court rules in favor of Bryant, this would damage the tribal court’s’ ability to protect Native women from repeat offenders.

Steven Babcock, Bryant’s lawyer, asserts that the use of prior convictions in prosecuting Bryant on new charges violated his constitutional right to an attorney. The justices were skeptical because Bryant never challenged his earlier convictions or prison sentences of up to a year. While the Sixth Amendment guarantees the right to counsel, the Indian Civil Rights Act of 1968 does not guarantee defendants an attorney provided by tribal courts unless the defendant faces a prison sentence of more than a year.

Elizabeth Prelogar, who’s representing the United States, pointed out that Bryant was represented by appointed counsel through his case and admitted guilt to all his prior convictions. She added that a previous Supreme Court ruling held that uncounseled convictions remain valid in determining when to classify a defendant as a repeat offender.

Tribal courts are necessary in ensuring public safety on Indian reservations, this case has the potential to delegitimize them to the point where the tribal courts wouldn’t be able to protect Native American women from being attacked by repeat offenders.

The Violence Against Women Act (VAWA), which was amended in 2013 to allow tribal courts to prosecute non-Natives, also allows tribal convictions to count toward the number of offenses needed to be charged as a habitual offender. This helps protect Native women from abusers, which is much too common.

Forty-six percent of Native American women have been victims of domestic violence, rape, or stalking, according to the U.S. Center for Diseases Control and Prevention. Native American women face the highest rates of domestic violence — twice as much as women of any other race. It doesn’t help that tribal courts have been severely limited in handling such cases until the past three years.

VAWA has become crucial in the fight against domestic violence in Native communities because most abusers are non-Native men– who make up 86 percent of attackers in reported rape and sexual assault cases against Native American women– and could come back repeatedly and continue abusing Native American women without legal repercussions.

If the Supreme Court rules in favor of Bryant, then tribal court convictions would not be able to count towards habitual offender status, making it much easier for abusers to get away with their crimes in Native communities.

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FEDERAL WORKGROUP TO PROTECT ICWA

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Recent attacks on the Indian Child Welfare Act (ICWA) by the adoption industry have prompted federal agencies to join forces in support of ICWA. Lawsuits have been filed by the adoption industry in hopes these lawsuits will reach the Supreme Court with the decision being in favor of  the nullification of ICWA.

A Memorandum of Understanding (MOU) was announced earlier this month to innovate ICWA legislation, which will help deflect the reasons the adoption industry wishes to overturn the statute.

The MOU is the merging of three federal agencies: Bureau of Indian Affairs (BIA), Department of Justice (DOJ), and Health and Human Services (HHS).

The development is imperative considering the hysteria surrounding ICWA lately, generated by inaccurate representations of the law in the media. The MOU will help solidify the necessity of ICWA, and ensure the legislation fulfills its intended purpose of protecting the Indian community.

The BIA has announced the four central objectives of the MOU. First, and perhaps of utmost importance, is the agency’s committed dedication to ICWA as a priority worthy of maintenance for the health and well-being of Indian children, families, tribes, and communities.

Second, to assure the implementation and compliance of ICWA by formally establishing the ICWA Interagency Workgroup. The Workgroup will work to advocate the purposes of ICWA, and staff member meetings of the Workgroup will be held monthly.

The third objective is to promote communication and collaboration of federal activities aimed at supporting the implementation and compliance of ICWA.

The final objective is  to conceive structures and procedures for the Interagency Workgroup in order to ensure the organization operates effectively.

Additional movements by the federal government to secure ICWA are currently visible. A proposal by the Administration for Children and Families (ACF) made earlier this year seeks to record data of Native American children in the foster care system, which has never been done before.

The proposal will amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) to record ICWA related data, which will illuminate the extent of overrepresentation of Native American children in foster care and collect information that will help address this problem.

ICWA receiving attention from the federal government in the above mentioned ways demonstrates an acknowledgement of the necessity to rebuild relations with tribal governments, and restore Native communities.

Although the MOU is not a legally binding entity, the development signifies a mutual respect between tribal government and the United States federal government. The Lakota Law People’s Project views the creation of the MOU as a step toward reconciliation.

The MOU is an essential establishment for strengthening ICWA and protecting Native children, who are the source of revitalization for the tribal communities. Proper implementation of ICWA is indispensable, but further action is required to repair the Native community, which remains in an impoverished state due to historical and current mistreatment of the community by the United States government.

The Lakota People’s Law Project is calling for the United States to enact a Truth and Reconciliation Commission to address the ongoing mistreatment against Native American families. To learn more about our call for a Truth and Reconciliation Commission visit our website.

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Check out our report calling for a Truth and Reconciliation Commission: http://lakotalaw.org/special-reports/truth-and-reconciliation

Please sign our petition calling for a Truth and Reconciliation Commission: http://lakotalaw.org/action

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Judge to Pay for Indian Child Welfare Act Violations

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South Dakota Judge Jeff Davis agreed to pay $50,000 to plaintiffs from the Oglala Sioux and Rosebud Sioux Tribes for attorneys’ fees after a 2015 ruling found he had violated the Indian Child Welfare Act (ICWA) on numerous occasions.

The plaintiffs filed the lawsuit in 2013, claiming that Pennington County officials were wrongfully taking Sioux children from their homes. The custody hearings held by 7th Judicial Circuit Judge Davis lasted less than five minutes, sometimes as little as sixty seconds. Parents were not allowed to see the evidence against them, produce their own evidence or cross-examine witnesses.

Judge Jeffrey Viken ruled in favor of the two tribes in 2015. In the 45-page ruling, Viken ordered South Dakota officials to hold fairer removal hearings, including adequate notice beforehand and final decisions based on evidence from both sides.

Davis continues to adamantly deny ever withholding information from those hearings. His blatant disregard for federal law and constitutional rights reflects the vast history of mistreatment against Native Americans.

ICWA was enacted in 1978 to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” after thousands of children were wrongfully taken from their homes during the Boarding School Era. ICWA limits when Native American children can be removed from their homes, and places them in Native American foster or adoptive families so they do not lose connection to their cultural roots.

However, the law is rarely enforced as Native American children are still put in foster care at an alarming rate, making up two percent of total children in foster care even though they only make up one percent of the child population. In the state of South Dakota alone, which is most notorious for ICWA violations, more than 750 Native American children per year are placed in foster care and make up more than half of the state’s foster care population despite only making up 13.8 percent of the state’s child population.

A Truth and Reconciliation Commission needs to take place to address the ongoing mistreatment against Native American families. This commission would document stories of survivors from the Boarding School Era and investigate how the boarding school policy continues to impact Native American communities today. For more information about Truth and Reconciliation check out our website.

The lack of ICWA’s enforcement continues what the Boarding School Era started: destroying future generations of Native Americans by ripping children from their families and cultural roots. However, there is hope for a reversal of this trend with this victory for the Sioux tribes. Only time will tell if the officials will follow through with the hearing and properly follow federal law.

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Check out our report calling for a Truth and Reconciliation Commission: http://lakotalaw.org/special-reports/truth-and-reconciliation

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Indian Child Welfare Act Data to Finally be Recorded by ACF

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The Administration for Children and Families (ACF) collects demographic and case-specific  information on children who are in foster care or adopted, yet has never collected Indian Child Welfare Act (ICWA) related data on American Indian and Alaska Native children in child welfare systems. A recent proposal may change this and increase the efficiency of ICWA.

ICWA was enacted in 1978 to address the widespread separation of large numbers of Native American children from their families and tribes. ICWA allows tribes to be notified when Indigenous children are placed in the foster care system, in turn giving the tribe a chance to intervene in state proceedings. Furthermore, placement preference for the child is given to extended family or tribal families.

ACF is proposing to require state title IV-E agencies to collect and report additional data elements related to ICWA in the Adoption and Foster Care Analysis and Reporting System (AFCARS). This is long overdue, and can ultimately help address why Native American children continue to be drastically overrepresented in foster care.

Upon ICWA’s implementation Congress found that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” ICWA’s purpose is to protect the rights of Native American children to live with their families, to foster continued tribal existence and to facilitate permanency for children, families, and tribes.

Native American children continue to be overrepresented in foster care, where they represent two percent of all children in foster care, but only make up one percent of the total child population. Some states are worse than others, in South Dakota for example, Native Americans comprise half of all children in foster care even though they only represent 13 percent of the state’s child population.

If the proposal is successful, AFCARS would collect statistical data which has never been traced before, including the child’s tribal citizenship and the name of the child’s tribe. This new reporting system could provide the mechanism to assure the success of ICWA.

Collecting ICWA related data will enhance the welfare of Native American children and thereby help preserve the most vital resource for restoring the community’s integrity.

The ACF intends to use the data to accomplish the following five goals:

First, ACF plans to use the ICWA related data to address the unique needs of Native American children in foster care or adoption, and their families, by clarifying how the ICWA requirements affect placement of Native American children.

Second, ACF will assess the current state of adoption and foster care programs and relevant trends that affect Native American families, considering Native American children are overrepresented at higher rates than any other racial or ethnic group.

Third, they will use the data to improve training and technical assistance to help ensure that states comply with ICWA.

Fourth, ACF plans to develop future national policies concerning its programs, and will use the data to help align performance measures, build an evidence base that informs policy and practice, and better ensure that federal funds are being directed in a way that delivers better results for Native American families.

Lastly, they plan to inform and expand partnerships across federal agencies that invest in Indian families and that promote resilient, thriving tribal communities through initiatives.

Collected data will illuminate the welfare of indigenous children in the foster care system and adoption rates. Knowing this information will help to construct future federal policies that can improve ICWA, and in turn improve the native community.

The new system can help eliminate tension between tribal and state governments that arises when child welfare agencies consult with tribes regarding ICWA cases. Fluidity and cooperation between state and tribal agencies is paramount to the success of ICWA.

The Lakota People’s Law Project views the ACF’s proposal as a small step in the right direction toward reconciliation and the empowerment of Native American communities.

 

Pipeline Leak Increases Concerns in Native American Communities

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What was originally estimated as a 187 gallon Keystone Pipeline oil spill in Freeman, South Dakota has now drastically increased to nearly 17,000 gallons. TransCanada, the energy company that created the Keystone Pipeline, shut it down for repairs and cleanup when a leak was reported on April 2nd. No threat to the environment or public health was reported, and the pipeline is running again at a reduced pressure.

Despite TransCanada’s quick response, the threat of environmental damage still worries environmental activists and especially Native American communities, who oppose further construction of pipelines. This leak is the Keystone Pipeline’s 35th since it was established in 2010. It should have been reported by one of TransCanada’s automatic monitoring systems, but was instead found by local farmer Loren Schultz.

According to a report by the Pipeline and Hazardous Material Safety Administration (PHMSA), the leak was caused by a problem in the welding that connected the pipes together. The pipe that failed was made by Welspun,  headquartered in India, which is known for their low-quality pipes.

These developments are fueling concerns from communities like the Standing Rock Sioux reservation in North Dakota, who face the proposed Dakota Access Pipeline being built on their water supply in the Missouri River. There is a high possibility that Dakota Access, the company building the pipeline, will repeat the same mistakes as TransCanada. This time, a leak could bring more severe damage, considering it would contaminate the water supply that thousands of people rely on.

The Dakota Access Pipeline, recently approved by the Iowa Utilities Board (IUB), will run from the Bakken oil fields in North Dakota through South Dakota and Iowa, and will end in Patoka, Illinois. Dakota Access still needs approval from the Army Corps of Engineers and the Iowa Department of Natural Resources before constructions begins. However, none of the Sioux people on the nearby reservations were consulted about the pipeline crossing over their water supply, and their pleas for it being built elsewhere are being ignored.

The Dakota Access Pipeline violates the Rivers and Harbors Appropriation Act, since its construction over a body of water was not authorized by the U.S Congress. It also violates the National Historical Preservation Act because the reservation is home to sacred Native lands and the burial site of the Lakota leader Tatanka Iyotake, better known as “Sitting Bull.” The IUB is also facing a lawsuit from the Northwest Iowa Landowners Association, which argues that Dakota Access has no right to seize property for the pipeline.

According to Standing Rock Chairman Dave Archambault, the Dakota Access Pipeline not only threatens their water supply, but also sacred natural lands where eagles gather every spring.

“We still exist and we need to protect what little we have left because so much as been taken from us,” Archambault said in an interview with RT America.

Earlier this week, the Environmental Protection Agency asked the U.S. Army Corps of Engineers to more carefully review and revise its preliminary plan for the Dakota Access Pipeline, adding there should be a closer look into the impacts a spill would have on drinking water for Native American tribes. If a proper investigation is not done and the Corps approves the Dakota Access Pipeline, the Standing Rock Sioux Nation is prepared to sue for environmental and historical preservation violations.

Dakota Access claims to care about the surrounding communities, but their actions have proven the opposite, they’re blinded by dollar signs and are spewing lies meant to comfort and assure people that nothing will go wrong. Considering how prevalent leaks are, the Dakota Access Pipeline will leak sooner or later, especially if they choose to cut corners and buy the cheapest pipes like TransCanada. Energy Independence should not come at the cost of endangering thousands of lives, forcibly taking property and destroying the environment—TransCanada and Dakota Access would beg to differ.

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Dakota Pipeline Threatens Tribal Water Sources

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In a last ditch effort to protect the Missouri river from the Dakota Access Pipeline, dozens of tribal members from South and North Dakota gathered last Friday to protest. A camp has been set up at the point where the proposed pipeline would cross the river, and protesters plan to stay until the pipeline is stopped.

Members from the Standing Rock nation, Cheyenne River Lakota, and Rosebud Sioux, are saying Tribes were not properly consulted about the proposed pipeline, which has been approved by state regulators and now awaits federal confirmation by the U.S. Army Corps of Engineers.

The proposed 1,130 mile, $3.8 billion pipeline will carry approximately 500,000 barrels a day from the Bakken oil fields in the western part of North Dakota to Illinois, and will also travel through South Dakota and Iowa in the process. It would cross the Missouri river, just yards from tribal lands, and pass through historic lands including burial grounds.

A portion of the pipeline would be constructed sixty-feet underneath the mouth of the Cannonball River, a tributary of the Missouri river and the municipal water source of the Standing Rock Tribe. If a leak or malfunction were to occur, the Tribe’s cherished water source would immediately be jeopardized.

There are approximately 2.5 million miles of pipeline transporting natural gas and crude oil throughout the United States, and leaks resulting in catastrophic consequences for the surrounding communities and environment occur annually.

Last year in May, a devastating spill occurred near Refugio State Beach in Santa Barbara, California. The corroded pipeline spilled approximately 142,800 gallons of crude oil into the pacific ocean and coastline. Within 24 hours, the oil polluted nine miles of coastline in Santa Barbara, with an estimated $250 million in damages.

Earlier this week, a “potential leak” in southeastern South Dakota has led TransCanada Corporation to investigate and cease operations on a portion of the Keystone XL pipeline.

While most of these leaks are due to corrosive pipes that had been constructed decades prior, the same notion of “it’ll happen eventually” is at the forefront of the Dakota Access pipeline protests. Additionally, the recent developments of the Keystone XL pipeline’s infrastructure, which was built less than a decade ago, raises further issues.

Energy Transfer Partners, the Dallas-based energy company behind the Dakota Access Pipeline, insists they are committed to “minimizing and mitigating the impacts to land properties,” boasting that pipelines are the safest and most efficient method of transporting energy resources.

ETP’s statements are deceptive, the proposed pipeline’s construction could seriously jeopardize the livelihood of the tribe and surrounding communities. Energy Transfer Partners are disregarding the concerns of local tribes, and a federal approval for the pipeline without a proper environmental impact study could ultimately lead to a grave environmental disaster in the region.

Pipelines are “ticking time bombs,” said Tony Iallonardo, communications director for Safer Chemicals, Healthy Families, in an interview with ProPublica.

Any pipeline could rupture from inevitable exposure to the elements over time, and in this context, it is clear why Standing Rock and others are opposing it and pushing for a comprehensive environmental impact assessment.