Monte Mills is co-director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of...
Jeffrey Haas is founding partner of the People’s Law Office in Chicago and defended Mora County, New Mexico, which...
Since April, the Standing Rock Sioux tribe, alongside other Native American tribes, have been protesting the construction of Energy Transfer Partners’ Dakota Access Pipeline. The tribe claims that this pipeline, which will stretch from North Dakota to Illinois by way of their land, will be a threat to their drinking water, sacred land and the future of their children. They also claim that they were not consulted before the approval of the project.
On Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi join Monte Mills, co-director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana and attorney Jeffrey Haas, who is presently working with the Water Protector Legal Collective representing the water protectors at Standing Rock. They will take a look at the protesting of the Dakota Access Pipeline at Standing Rock and discuss the legal issues, history of land and people, the protest, the history and impact of the pipeline, the recent re-routing news, and what the future holds.
Monte Mills is co-director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. He teaches a variety of Indian law courses and works with clinical students on a range of legal matters in the Indian Law Clinic. Prior to joining the faculty at the Alexander Blewett III School of Law at the University of Montana, Monte was the Director of the Legal Department for the Southern Ute Indian Tribe in Colorado.
Jeffrey Haas is founding partner of the People’s Law Office in Chicago and defended Mora County, New Mexico, which was sued by a subsidiary of Shell Oil for passing an ordinance banning fracking. Jeffrey recently wrote a piece for Truthout titled “Lawyer’s View: Recent Days at Standing Rock.” He is presently member of the Camp’s legal team, presently working with the Water Protector Legal Collective representing the water protectors at Standing Rock.
Special thanks to our sponsor, Clio.
Lawyer 2 Lawyer – Law News and Legal Topics
Inside the Dakota Access Pipeline Protest at Standing Rock
Jeffrey Haas: Saturday of Labor Day weekend the pipeline company came and bulldozed those areas, and that was the thing that was captured with the dogs and the security guards trying to keep the water protectors away. So in other words, they sort of destroyed the evidence of whether or not that pipeline was interfering with sacred sites, and that was a particularly egregious, and I think that aggravated everything.
Monte Mills: One of the main disagreements through the consultation process was the tribe’s demand may be too strong a word, but what the tribe said was, look, Dakota Access may have done a survey to determine whether there were cultural sites within this route, but we, the tribe, we look at the land and the connection to cultural sites very differently, and so we need to be the ones out there doing the cultural survey to determine whether these sites are there.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.
You are listening to Legal Talk Network.
Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, this is Bob Ambrogi, coming to you from near Boston, Massachusetts, where I write a blog called LawSites, and also co-host another Legal Talk Network program called Law Technology Now, along with Monica Bay.
J. Craig Williams: And this is Craig Williams, coming to you from sunny Southern California. I write a legal blog called May It Please the Court.
Bob, before we introduce today’s topic we would like to thank our sponsor Clio. Clio is the world’s leading cloud-based legal practice management software. Thousands of lawyers and legal professionals trust Clio to help grow and simplify their practices. You can learn more at HYPERLINK “http://www.clio.com” clio.com.
Bob Ambrogi: Since April the Standing Rock Sioux Tribe, alongside other Native American tribes have been protesting the construction of Energy Transfer Partners’ Dakota Access Pipeline. The tribe claims that this pipeline, which will stretch from North Dakota to Illinois by way of land that runs along their reservation, will be a threat to their drinking waters, sacred land, and the future of their children. They also claim that they were not consulted before approval of the project.
J. Craig Williams: Well, these protests have drawn international attention and protestors have weathered frigid conditions and resistance by police, all in the name of fighting for their sacred land. After a plea to halt construction, President Obama on December 4, the U.S. Army Corps of Engineers announced that it would not approve permits for construction of the pipeline under the Missouri River near the sacred burial sites and would explore alternate routes for the pipeline and its crossing.
So Energy Transfer Partners and Sunoco Logistics blasted President Obama’s decision through the Army Corps of Engineers for abandoning the rule of law in favor of currying favor with a narrow and extreme political constituency. Ultimately they dismissed the decision. So what happens next?
Bob Ambrogi: Well, today on Lawyer 2 Lawyer we are going to take a look at the protests over the Dakota Access Pipeline at Standing Rock. We are going to discuss some of the legal issues, history of the land, and the people, the protest, the history, and the impact of the pipeline, and the recent news regarding the Army Corps of Engineers and what the future holds.
J. Craig Williams: And to do that Bob, we have got a great lineup today. Our first guest is Monte Mills. He is an Assistant Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. He teaches a variety of Indian law courses and works with clinical students on a range of legal matters in the Indian Law Clinic. Prior to joining the faculty at the Blewett School of Law, Monte was the Director of the Legal Department for the Southern Ute Indian Tribe in Colorado.
Welcome to the show Monte.
Monte Mills: Thank you very much.
Bob Ambrogi: And also joining us today is the attorney Jeffrey Haas. Jeffrey is Founding Partner of the People’s Law Office in Chicago, a law office that was formed in 1969 to help defend demonstrators against the Vietnam War, Black Panthers, SDS, and others of the time. Jeffrey has represented a number of notable clients and groups over the years.
He has recently been at the Standing Rock Camp as part of the legal team there, the Red Owl Collective, which is assembled by the National Lawyers Guild. He has been writing some articles about activities there and is not too far from there right now.
So welcome to the show Jeffrey. Happy to have you on.
Jeffrey Haas: Thank you. Glad to be here.
Bob Ambrogi: And we should also note that we have actually reached out to Energy Transfer Dakota Access Pipeline Project to invite them to be on the show and they did decline our invitation, and we reached out to the Army Corps of Engineers and received no response from them.
So what I would like to do, I want to — of course this has been a big week, a lot has happened this week and I want to get to that, but before we do, I wonder if one of you could kind of walk us through how we got to where we are. What is the history of this protest, what is at issue here? Jeffrey, could you address that for us?
Jeffrey Haas: Well, I certainly will try to. The partners of the Dakota Access Pipeline want to build a pipeline from the Bakken Oil Fields to deliver as much as half a million barrels of oil a day down to Illinois and possibly it goes down to the Gulf. So they have been looking for the route to do. And they went through various efforts.
And the original route they took would have placed them going across the Missouri River right above Bismarck, but they decided that that was too much of a danger to the Bismarck water supply, so they rerouted themselves right above the Standing Rock reservation, and on treaty land that had historically belonged to the Sioux Tribe and also where many of their sacred sites and burial sites were. And so their pipeline path went right through this area.
And so in response, originally the Standing Rock Sioux, but they were joined by the other Six Nations and ultimately by 200 Native Nations, joined in building a camp just a few miles, a couple of miles south of where the pipeline would go across the highway, and have been protecting it, because they say it will endanger their water supply, which they get from the Missouri River and the lake adjoining it.
They also say that the construction interferes with and destroys many sacred sites and burial sites of their land. And they also say that they were not consulted, either from the sacred site standpoint, nor was there a proper consultation done in terms of the environmental impact. It was a rather superficial environmental study that was done for this pipeline, not the much more in-depth environmental EIS that is normally required when you have a pipeline going through this many lands.
So when the pipeline got very close to the Sioux land, they actually filed a lawsuit in DC claiming they haven’t gone through the proper line of consultation with the tribes, saying that the pipeline violated both the Historic Preservation Act, the NHPA and the National Environmental Protection Act.
The court in DC then ruled that the pipeline had gone through enough consultation and therefore should be allowed the permit, and then a few days later the Corps of Engineers — or actually a few minutes later the Corps of Engineers said, no, they did not have the proper permit to go under and they had not done the proper impact study to go under the Missouri River. So they have been denied that easement.
And they advised the pipeline to stop building 20 miles on each side of the Missouri River; however, the pipeline did not stop building, they kept going closer and closer to the camp and closer and closer to the river, and the camp grew, and over the last few months there have been several confrontations.
99% of the people at the camp have really practiced nonviolent, civil disobedience, and that has been the tenor. There may have been a couple of rocks thrown or may have been a hay bale set on fire, but by and large, the tone and the attitude, most of the people have been praying, they have been nonviolent, but they have put their bodies in the way of the machinery to build this pipeline, which they see as an encroachment on their sacred lands and a threat to their water supply.
The main call at camp is water is life and they feel that this pipeline that goes through and under their water source and drinking source and fishing and hunting area is a violation of their treaty rights.
And so they have been joined, not just by other Native Nations, but by thousands of people who are there also because of the importance of water and because they don’t want to see this oil delivered and put more carbon in the air when it’s burned.
Bob Ambrogi: What type of studies, you are talking about basic environmental study that was done, how detailed was it, did they get into touch at all with the tribes?
Jeffrey Haas: Well, that’s a matter of dispute in the DC case. There was some consultation. They say it was adequate; the tribe says it wasn’t adequate. And so there is an issue about how much consultation was done and how deep was it.
Similarly, in terms of the environment, they didn’t do an overall Environmental Impact Statement or Study, which would have required to talk about the effect of — the entire effect of the 1,100 miles of the pipeline, not just a particular segment of it.
So that’s one of the arguments and that’s one of the reasons that the Army Corps of Engineers said, we have to look at the bigger picture, we have to look at our effect on sacred sites, we have to do more consultations. And they said, we are going to do now an Environmental Impact Study. And if they do that procedurally, and I am sure your other guest can probably talk about that more than I can, that would require a new study and a requirement that the public really have input and response, and it would delay the pipeline considerably, and I don’t think either the financiers or the pipeline itself are going to accept that, and one way or another they are going to try to get this decision overturned.
Bob Ambrogi: Monte, let’s bring you into this conversation. You are Assistant Professor of Indian Law at the Indian Law Clinic. Is there precedent here? Are these issues of Indian Law or are these broader issues of environmental law, how do you view what’s at issue here?
Monte Mills: They are really both. I tell my students who are studying Indian Law here all the time. The one thing about Indian Law is, among many things that makes it great, it is every other area of law wrapped into history and questions of justice over time. And I think that’s really what you are seeing here.
I think Jeff did a great job of sort of summarizing the big picture, but in some ways this dispute, you can look at it in an even bigger picture, because it does raise questions, not only about environmental law and about Indian Law, but about the history of the treatment of tribes and the history of this particular region of the country.
Jeff mentioned treaty rights that are over 150 years old that are relevant still in the determination of this modern-day pipeline and this dispute. So it incorporates aspects of Indian Law, including the federal government’s relationship to and obligation to Indian tribes, tribal sovereignty, treaty rights.
It incorporates environmental law and really administrative law, because a lot of the questions, particularly in the litigation, turn upon the Army Corps of Engineers’ permitting process and how and whether the Corps either did or did not take into account environmental impacts that they should have, tribal cultural concerns that they should have, when they should have taken those into account, and in many ways the tribe’s challenge to this project is sort of based in all of these areas, but as much as anything else, it’s really a challenge to the way in which the Army Corps has chosen to authorize infrastructure projects of this type.
Because essentially Dakota Access was able to design a pipeline route in such a way to minimize the potential for federal oversight or delay review and permitting, and that is really how the Corps has sought to say, look, we have done everything we have needed to do. We don’t need to do an Environmental Impact Statement because we only have jurisdiction over 3% of this 1,172 mile long pipeline. Therefore, the environmental impacts we are going to analyze are really only the environmental impacts associated with that narrow piece of this broader picture.
J. Craig Williams: But don’t they typically appoint a lead agency to supervise the entire thing, isn’t there one agency that’s responsible for the entire pipeline?
Monte Mills: You would think so, particularly a project of this scope, and in fact, in the District Court judge’s ruling on the preliminary injunction from the DC District, that was where he started. He said, you might think that a project of this scope would have a lead agency who looks at the impacts of this project across the entire range, but that’s not the case here. There is no overarching federal law that gives a federal agency responsibility to oversee this type of pipeline projects on a sort of cumulative basis.
Now, there’s an argument I think to be made that, but for the Corps’ approval of the 3% over which they have jurisdiction, the whole project wouldn’t go forward, and therefore the Corps should look at the cumulative impacts, even if they are only approving now what is really about a quarter of a mile, maybe a little bit longer of this whole stretch. If they don’t approve that, that defeats the whole pipeline, potentially. So arguably they have to look at the cumulative impacts.
But it really is in some ways a matter of agency discretion how they define what the impacts of their approvals are, what the scope of the effects of that approval are, and in this case, at least thus far, up until really the last couple of months, the Corps as a legal matter had said, we are only looking at this very narrow piece of the pipeline, only those areas where we have jurisdiction to review and approve and permit, and in terms of environmental impacts and environmental assessment, we are only going to assess the impacts at those locations, and maybe a little bit of a buffer zone, but we are not going to look at the whole pipeline route.
J. Craig Williams: How does the law of trespass apply here, I mean I presume that the Indians own the land, or if not, then someone else, but who owns this land?
Monte Mills: You are right. And one thing to clarify, the pipeline does not cross reservation land. So it’s not within Indian country. If it were, then the tribe would have very different rights; in fact, they would have to get the tribe’s consent to grant a right of way across tribal lands. But much of this pipeline, a significant majority, I think it’s like 97%, crosses private land, and so the company has gone out and purchased easements and rights of way through the open market with those private landowners to get the permission to install this pipeline.
So it’s not a matter of crossing Indian lands, which would raise a wholly different set of issues; many of the same issues would still be present, but the tribe would certainly have a different role and authority.
Bob Ambrogi: It does run adjacent to their property, right? I think the court decision that we talked about says it runs within a half a mile of the reservation and the plaintiffs say that it will potentially destroy sites of cultural and historical significance.
Monte Mills: Exactly. And I think that’s really where I kind of began with the bigger picture, because Indian tribes across the country, because of the federal policies over the centuries of removal and reservations and treaty making, tribes have claims and cultural sites and connections with places far from their current present-day locations.
And so one of the underlying and central issues here is, how do those claims play out? How are those rights that tribes have reserved in these treaties honored? Particularly when you are talking about a large national infrastructure project that crosses a number of different states, a number of different types of land and doesn’t cross Indian country, and yet tribes retain, whether it’s treaty rights or cultural connections with lands in those areas, how do those rights get recognized, how do those rights get honored? And particularly, when a federal agency is responsible for reviewing and approving those projects, what are the federal agencies and the federal — more broadly, the federal government’s obligations to recognize and engage with the tribe to do that.
I just wanted to add one more thing too about — your question about private land, one of the issues that came up in the context of the preliminary injunction motion was, as you are probably familiar and much of your audience who are lawyers will be familiar with sort of the standards for preliminary injunction, and being able to demonstrate that without an injunction, irreparable harm would ensue. Well, one of the things that the District Court looked at was, well, much of this pipeline is already in the ground, because it’s already on private land, there was no federal review, permit, et cetera needed for the company to go ahead and put in this pipeline. So to the extent the tribe is saying, putting in this pipeline will irreparably harm our interests, the court found it important that, well, that can’t be the case on these areas of private land where the company has already put in the pipeline.
The tribe is not going to be able to demonstrate that they would be irreparably harmed, because whatever harm that’s happened, it has already been done, because the company had the right, largely because they designed the route to stay primarily on private land. They have already done it.
Jeffrey Haas: I just would like to comment on that particularly, that in the DC lawsuit, right before the judge was ruling, one of the landowners who had granted an easement let the archaeologist from the Standing Rock Tribe come on the land to do a study. And on Friday, September 22, he filed with the court a statement indicating there were sacred sites, burial sites and sites like reproductions of astronomical bodies on a particular area just west of Highway 1806.
The next morning, Saturday of Labor Day weekend, the pipeline company came and bulldozed those areas. And that was the thing that was captured with the dogs and the security guards trying to keep the water protectors away. So in other words, they sort of destroyed the evidence of whether or not that pipeline was interfering with sacred sites, and that was particularly egregious and that sort of — I think that aggravated everything.
Monte Mills: Yeah, absolutely. I would agree with that. I totally agree with that. And I think it highlights the tribes’ concern. You mentioned earlier Jeff the concerns about the tribe’s role and consultation. One of the main disagreements through the consultation process was the tribes’ demand may be too stronger, but what the tribes said was, look, Dakota Access may have done a survey to determine whether there were cultural sites within this route, but we, the tribe, we look at the land and the connection to cultural sites very differently. And so, if we need to be the ones out there doing the cultural survey to determine whether these sites are there, and I think that episode over Labor Day weekend you described is a perfect example of the tribes’ concern.
The tribes’ own folks went out and looked in the route and saw all these sites that they believed hadn’t been identified. Unfortunately, the next morning the bulldozers were fired up and those sites were gone.
J. Craig Williams: So with the decision now from the Army Corps of Engineers to hold off on this, what’s the mood there, what’s happening at the camp now, does this mean the camp is going to disband, are people satisfied or will the protect continue?
Monte Mills: I think momentarily there was a great deal of excitement because I think it was a recognition of the legitimacy of their claims that there were sacred sites that they had not been consulted and that either other routes might be considered.
Practically speaking, I don’t think the APL is going consider other rights they kept building right up to both sides of the Missouri you can exactly – particularly in the middle of winter, we ratchet your pipeline. They also are a little bit under a time crunch because the banks and the shippers have contracts that won’t necessarily get extended if they don’t have the easement to go through. So I think a number of things are going to happen.
In DC already, the pipeline is asking the court there to overrule this determination, this denial of the easement saying, you’d already decided in court that they had gone through a proper consultation, and so they’re going to try certainly one way is to get the court to overrule the Corps of Engineers.
And then I think if that doesn’t work, I think what the Trump administration coming in, they are hoping to get either an administrative or an executive order that either rescinds this completely or really restricts the EIS procedure so that it’s much quicker.
My personal feelings, this is not exactly my area of expertise, if for fully EIS has done, it would take much longer, and I don’t think the pipeline would be able to sustain itself for the 6 months to 18 months that it might take to do a full environmental impact study.
So there is a mixed feeling at camp, there is jubilation and there is skepticism. And there’s also the winner and its tops are blowing off of tents, people are cold, running out of water, running out of wood, there is going to be people leaving, there were tremendous number of veterans who came up this weekend who would naturally go back, and it’s not clear the chief has said it we can go home now, there are other people that are skeptical, so I think you have all those sentiments going on.
Bob Ambrogi: Well, gentlemen, we need to take a quick break before we move on to our next segment, we have here a short message from our sponsor.
Advertiser: Clio is an invaluable software solution for law firms of all sizes, handling all the demands of your growing practice from a single cloud-based platform. Clio enhances your firm with features such as matter and document management, time tracking, and even billing. Clio is an effortless tool that helps lawyers focus on what they do best to practice law. Learn more at HYPERLINK “http://www.clio.com” clio.com.
J. Craig Williams: And welcome back to ‘Lawyer 2 Lawyer’. This is Craig Williams with Bob Ambrogi, my co-host, and with us today is Monte Mills, an Assistant Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana and attorney Jeffrey Haas, the members of the Camp’s legal team; the Red Owl Collective assembled by the National Lawyers Guild. Bob.
Bob Ambrogi: Yeah, Jeff, I wanted to ask what you are actually doing as part of the legal team there. I understand you are, I think, primarily a criminal defense lawyer and a civil rights lawyer and I know that you have been doing some of that, there have been some criminal cases brought, as I understand it. Where are those cases and what’s the legal team that’s sort of on the ground there involved in?
Jeffrey Haas: Well, we are the Red Owl Legal Collective and now we are the Water Protector Legal Collective. Apparently the owl was a different symbol, different tribes had different views of the owl as a positive or negative symbol, so we have sensitive to that and now the Water Protector is a legal collective.
There are about 450 criminal cases that have arisen from a non-violence civil disobedience and we are doing our best to defend those. There are quite a lot of out-of-state lawyers from the Lawyers Guild willing to come in and take the cases. The problem is North Dakota Law does not allow other lawyers to come in even pro hac vice without a local lawyer being there for the entire court proceeding.
So the difficulty is finding local lawyers who will allow our State lawyers to come in. There have been some local lawyers who have taken, some of them have 8, 10, 12 cases and they are overloaded and we’ve asked the Bar to relax the requirements that for pro hac vice that the local lawyer be there the whole time.
So we are both working on common motions, they have overcharged people a great deal. There was one demonstration on October 27 where 200 people were basically trying to stop the pipeline from moving directly across the road, and many of them or most of them were praying and so forth.
A couple of people said fires are hay bales, somewhere like on a road they weren’t threatening anything, they were part of an effort to stop the movement of the pipeline across the road.
So they raised a 147 people and everybody gets charged with conspiracy to endanger by fire and set their bond real high. Well, I think — actually a judge subsequently sua sponte said, well, there is no evidence connecting any of these people with the fire. So they had to drop all of those felony charges and now people are charged with trespass and some with riot, a misdemeanor.
So we have a lot of cases. We have people who have locked down to equipment, they are locked down to bulldozers even though and they are charged with reckless endangerment, even though they come with instructions here is how to get me off the equipment and so forth. It’s really mostly been nonviolent disobedience, but there are quite a number of cases, as I said, 450 local lawyers have been somewhat overwhelmed. We think in many of the criminal trespass cases they gave no warning to leave. There were no trespassing found. A lot of these charges we think are suspect, but of course, people now have gone all over the country and just getting everybody to court, making sure they have a lawyer, many people have filed for a lawyer and some have been appointed lawyers, some applications have been denied for sort of bureaucratic reasons, it wasn’t signed completely.
So we are really trying to make sure that everybody has a criminal defense, can challenge the charges against them.
We have also filed a suit around what happened on November 20 when this bridge was blocked and a lot of protesters came out and law enforcement used water cannons and rubber bullets and massive amounts of tear gas on people on the bridge, which we think was excessive force, the officers weren’t threatened and they used this kind of equipment and there were a couple of people seriously injured.
J. Craig Williams: What do you think the possibility is that there could ever be one agency that’s responsible for this thing, I mean, is there any precedent for that? Is there any hope that there is one organization that would be responsible for overseeing this whole thing? It seems like given the size of it and the volume that it’s being as an interstate commerce situation that someone ought to be able to grab a hold of it?
Monte Mills: Potentially, I mean, as you mentioned, it would be something given the interstate impacts Congress would have to create or at least recognize regulatory authority in a particular agency. In terms of changes going forward that I think kind of go back to the bigger picture and the potential for other things to happen beyond just this particular pipeline, I think Jeff mentioned earlier the statement from the Corps of Engineers, the Department of Justice and the Department of Interior that came out within minutes of the District Court in DC’s ruling in the preliminary injunction motion. And that statement in addition to saying the Corps was going to go back and review its compliance with NEPA and some of the environmental permitting statutes also called for additional consultation with tribes about these types of infrastructure projects and not only how consultation can work better for these projects, but also what types of statutory changes or regulatory changes could be made in order to enhance Federal engagement with tribes and going forward at least potentially avoid the issues that arose Dakota access.
And so, while that doesn’t get to the level of creating or recognizing one Federal agency with responsibility for oil pipelines nationwide, it does suggest —
J. Craig Williams: Doesn’t that lie with the Energy Regulatory Commission, isn’t that the right agency?
Monte Mills: Potentially, yeah, but there is a gap here, as I understand specifically as it relates to pipelines carrying oil, there are Federal agencies that oversee for example, natural gas pipelines and other types of infrastructure projects, and it could be other agencies. In this particular case though because it is an oil pipeline that trigger for the Federal regulatory review was the areas where this particular pipeline would cross Federal facilities or waters of the United States.
That’s what brought the Army Corps of Engineers in. Also, were across say, Wildlife Refuge, the United States Fish and Wildlife Service had some oversight, to the extent it affected those Federal facilities.
Bob Ambrogi: Here is what the Federal Court decision on this said, “A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here. Domestic oil pipelines, unlike natural gas pipelines, require no general approval from the Federal government.”
Monte Mills: There you go.
Bob Ambrogi: “In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land.” So that’s what the Judge said at the September ruling.
Monte Mills: Right. The reason 99% of this particular pipeline is on private land is I think the Judge describes later in sort of his factual review of this scenario. Dakota access designed the route and had a software system that would identify the “easiest” and most efficient “route” for the pipeline to be constructed.
Bob Ambrogi: I would just ask, I am curious, I think both of you have alluded to the fact that the United States has a long history of essentially exploiting native American, taking advantage of them with regard to land claims and mineral claims, what do you think it is that so sort of brought this to a head this time? Why has this case, this situation drawn protests not just from this one tribe, but from native Americans all over the United States?
Jeffrey Haas: Well, I will give my opinion and/or at least what I understand. First of all, the land where the pipeline has gone through was land that was granted to the Sioux Tribe and the Laramie Treaty of 1851, and it was never legally taken back from them.
So they call that Treaty Land, which technically they don’t have the property right too under U.S. Law but they claiming that right was given to them and it’s never actually been taken away in a legal manner. So even though it’s not the reservation it is Treaty Land. They are also, of course, claiming that that land contains many sacred sites, and so there is that claim, this history is beginning in the 1800s, then you have a number of years ago the Army Corps of Engineers decided to dam the Missouri River, and I don’t know several hundred thousand acres of standing rock land was — even though they were compensated for, they didn’t agree to it. I don’t think they have ever cashed the check. But anyway, some of their most fertile land on the western side of the Missouri River was taken away to create a reservoir. So this was also part of the background here.
So then you put that all on the fact that also they decided the pipeline was too dangerous for the water supply for Bismarck, which is mostly wide, but apparently is not too dangerous to cross the Missouri River and the lake right where they get their water supply from. I think all those things combined with this history was why they finally said that we’ve had enough and why they were joined by the other nations of the Sioux tribe and so many other indigenous people as this was just an extension of a long history. And I think the threat to the water supply as well as a disregard of their sovereignty and their sacred sites all played on that.
J. Craig Williams: Well, gentlemen, we have just about reached the end of our program and it’s time to wrap up with your final thoughts and get your contact information if our listeners would like to reach out to you after the program.
So, Monte, let’s start with you.
Monte Mills: Sure. I would just kind of follow on that last question really to sum up. I think while there has certainly been more attention paid to the issues in North Dakota with Dakota Access Pipeline, in some ways this issue is no different than the fights and the interests and concerns and the struggle that Indian tribes have been undertaking for hundreds of years, really since first contact.
I think part of the difference about this particular fight is, it has largely through the position that tribes are in now, a position of political influence, of sophisticated legal representation and really media influence. They have been able to draw others to the righteousness of their positions.
So I think while more people are paying attention to this one particular issue, it’s not alone in terms of its basis, its historical context and the issues that are at stake, tribes are fighting for these issues across the country.
So hopefully going forward the big picture solution regardless of how a new administration or a new Congress addresses the Dakota Access Pipeline in particular, the question remains, what comes out of this situation in a larger context, and hopefully, it will engender more understanding, a more desire to understand the bigger picture context, the historical context, the rights of tribes, tribal sovereignty, the federal-tribal relationship so that more folks can better understand those issues going forward.
In that regard I appreciate the opportunity to talk about this issue with your folks and your audience, because I think the more the people understand the context the better they will appreciate those issues and then the next time these issues come up, folks would be better informed.
If folks want to contact me, I am happy to give my contact information, you can find me on the webpage for the Alexander Blewett III School of Law here at the University of Montana in Missoula.
J. Craig Williams: Wonderful. Thank you very much, and Jeffery, your final thoughts and your contact information, please.
Jeffery Haas: Yeah, well, I also think there is definitely imaginable context to this. The native lands have frequently been sacrificed zones where their energy has been taken. I live in New Mexico, where there is huge co-powered power-plants on Navajo land. The people don’t even have electricity, but they live in the fumes of these huge coal plants. So this was true having to deal with the uranium on native lands, and everywhere there is fracking going on and so there is a real fight over to what extent can they protect their lands and their sovereignty, and to what extent are they going to be exploited for their natural resources. I think the new administration already has set up an Indian council who wants to I guess from their standpoint develop these resources but also frack and mine for coal and uranium and continue sort of the sacrifice zones that native reservations and native lands have been.
So I think this pipeline is sort of the question of what travel sovereignty do we have, how much control do we have over our land. I am part of the Water Protector’s legal collective, you can go to our Facebook page, Water Protector Legal Collective or HYPERLINK “mailto:[email protected]” [email protected].
Bob Ambrogi: Well, thank you very much to both of you for taking the time to be with us, this is a really interesting discussion, we have been talking with Monte Mills, Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexandra Blewett III School of Law at the University of Montana.
And Attorney Jeffery Haas, founder of the People’s Law Office in Chicago and member of the legal team the Water Protector Legal Collective. Thanks so much for taking the time to be with us today.
Jeffery Haas: Thank you.
Monte Mills: Thank you.
J Craig Williams: Great, well that brings us to the end of our show, Bob, this is Craig Williams, thanks for listening. Join us next time for another great legal topic, when you want legal, think ‘Lawyer 2 Lawyer.’
Outro: Thanks for listening to ‘Lawyer 2 Lawyer’, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast covering the latest legal topic.
Subscribe to the RSS feed on HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.
Elizabeth Slattery, and David Lat join Laurence Colletti as they discuss Justice Kennedy's retirement and Judge Kavanaugh's nomination.
Chas W. Freeman, Jr. and Morse Tan discuss the Trump-Kim summit.
Jerry Larkin discusses ARDC's recent report on client-lawyer matching services, lawyer participation in these services, and regulation of for-profit referral services.
Karla Fischer, Joan Meier, and Julie Owens discuss the abuse allegations against New York Attorney General Eric Schneiderman.
Bicka Barlow and Nancy O’Malley discuss the Golden State Killer and talk about DNA techniques attorney's use today in cases similar to this.
Gina Passarella and Nicholas Bruch take a look at the 2018 Am Law 100, analysis of data, the process, what this means for law...