Standing Rock Sioux Attorney: Deliberate Destruction of Sites Should Invalidate Pipeline Permit

Energy Transfer says protests against the pipeline are taking place on private property, but an attorney for the Standing Rock Sioux government says the land was long ago given to the tribe in a treaty with the U.S.

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KIM BROWN, TRNN: Welcome to the Real News Network. I’m Kim Brown in Baltimore.

The latest in the fight over the Dakota Access Pipeline in North Dakota. A federal appeals court ruled against the Standing Rock Sioux Tribe in their effort to seek an injunction to halt the construction of the pipeline. The tribe has vowed to continue the fight. But if the pipeline is completed, it will carry crude oil across four states, run over a thousand miles and run through sacred tribal lands and near sources of drinking water people depend on.

Here to bring us up to speed on these latest developments is Jan Hasselman. He is the lead staff attorney representing the Standing Rock Sioux government from Earth Justice’s northwest regional office. He joins us today from Seattle. Jan, thank you for speaking with us.

JAN HASSELMAN: Pleasure to be here.

BROWN: Jan, the US Court of Appeals for the DC circuit issued the latest ruling against the Standing Rock Sioux on Sunday night, on the eve of the federally recognized holiday of Columbus Day or Indigenous People’s Day. I just wanted to point that out. But this latest ruling is a little confusing because about a month ago there was a jubilation because the Obama administration seemed to have stepped in and somewhat saved the day. What happened here?

HASSELMAN: I think it’s important to understand there are two different tracks going on with respect to the tribe’s concerns about the pipeline. One of them is the court track. The other is the political track. And there’s somewhat independent of one another. The decision that came out Sunday night I think we need to understand is a very narrow ruling. What we’re asking the Court of Appeals to do was block construction until the appeal could be heard. It wasn’t a resolution of the legal issues in the case, it wasn’t even a resolution of our appeal of the lower court’s decision. It was just a response to our request that construction stop until the appeals are resolved. The court recognized that it’s very difficult to get that kind of conjunction from the court of appeals. It’s a narrow and stringent standard.

So they said no. We’re disappointed with that. But they also seemed to recognize that there are some very legitimate issues here and they recognize that other people have a lot to say about this, including the Obama administration which is where the focus is now.

BROWN: So the court’s ruling also referenced the National Historic Preservation Act, specifically section 106. What’s the significance of this?

HASSELMAN: Well, section 106 is the statute that requires that before agencies issue permits, that they work with Indian tribes to make sure that their permits or the actions they’re authorizing don’t harm sacred sites, burials, and that kind of that. That law was the basis for our challenge. This pipeline is pushing through the tribes ancestral and treaty lands through areas of great cultural and religious significance to them and there never was the true opportunity to participate in making sure that the project wouldn’t harm those sacred sites. So that’s the legal issue that the courts are grappling with right now. What is the scope of the government’s duties under that law?

BROWN: But Jan haven’t we already seen some of the tribe’s burial sites, some of their sacred sites already dug up, bulldozed, and violated? Are there going to be any repercussions for the actions that have already occurred?

HASSELMAN: Well you’re absolutely right. Over Labor Day weekend there was a tragedy that happened just a few miles away from the Missouri River, very close to the tribe’s reservation when some really profoundly important archeological and cultural discoveries that had just been found and that were reported to the court were dug up and that’s when we saw the scenes of protestors being attacked by dogs and pepper spray. They expressed their outrage over that violation of their cultural heritage.

Will there be repercussions? We certainly think there should be. One of the things that the National Historic Preservation Act does is it prohibits agencies from granting permits where a private entity has deliberately destroyed culturally or historically important sites and in our view this means that Dakota Access really can’t get a permit under Lake Oahe. We’re certainly going to press that issue with the Obama administration as they review their decision on whether or not to grant this final permit.

BROWN: So you’re talking about the protests that have occurred throughout the duration of the action out there in North Dakota. There have been protests of solidarity with the Standing Rock people across the country and have been for most accounts all been peaceful but the site of the spirit camp in North Dakota which was formed in April of this year has been the site of some very heavy handed policing as you mentioned and forceful resistance from local law enforcement and private security with police in SWAT team gear with M wraps. People being pepper sprayed, attacked by dogs, and journalists like Democracy Now’s Amy Goodman getting arrested. Over the weekend we saw the arrest of actress Shailene Woodley who Facebook livestreamed her arrest. So Jan in your opinion, have people’s civil rights and right to protest been violated out there?

HASSELMAN: I think there’s some very big concerns. Chairman Archambault and the other leaders at Standing Rock have worked tirelessly to make sure that the protests are peaceful and prayerful. Any act of violence by a protestor hurts our cause. It doesn’t help it. They’ve worked tirelessly to make sure that message is spread. The state of North Dakota has responded with military style tactics and it’s deeply disturbing. We see people getting pulled over without probable cause. Yesterday a journalist had some photography equipment confiscated without a warrant, without any probably cause. In my view, the heavy handed police tactics are escalating a fragile situation rather than calming it. It’s another instance in which the federal administration is needed to step in and take some control. I think one way to do that is to say time out. We’re not going to issue this permit. They can’t cross the river and let’s everybody get everybody to cool some of the temperatures that are out there.

BROWN: One question that hasn’t been super clear, at least to me, is the matter of land ownership. The Energy Transfer Partners which is the group constructing the pipeline has repeteadly said that this protest is taking place on “private land”. But I was wondering whether of any this land where this pipeline is proposed to run, goes through like established tribal territory that was brokered through treaty hundreds of years ago with the federal government.

HASSELMAN: Well you asked a very important question and I think it explains some of the really strong feelings that are out there. Dakota Access wags its finger and lectures people about private property. But it wasn’t that long ago that this land belonged to the tribe and the United States government signed a treaty giving the Sioux Nation irrevocable permanent undisturbed use of this exact area through which the pipeline passes. As everybody knows, I hope everybody knows, the government broke its promise. It didn’t keep its word and it took all that land back. Not very much later. So if you have respect for private property, I think you need to acknowledge that this land used to belong to the Standing Rock and this particular area at Lake Oahe has enormous ceremonial and religious and historic significance. It’s a special place.

BROWN: it seems as though the concerns of the tribe and the residence in that area, I hate to say this but was literally bulldozed by the Army Core of Engineers. They claim that they came to the tribe and received or at least gave the proper notification but the tribe disputes this.

HASSELMAN: Well there’s a legal issue that lies at the heart of this. A somewhat dry and technical legal issue that has enormous real world consequences. It stems from the fact that the Army Core feels very strongly that it doesn’t have authority over pipelines and that all it has authority over is things that areas where projects touch water. What it means is that they were willing to consult on the very narrow area where the pipeline actually goes underneath Lake Oahe but they refused to take any responsibility for the pipeline route itself. So you can see on their maps, the pipeline route emerges from the Missouri River. It goes right through these culturally rich areas. But the Army Core said that isn’t our problem, we’re not going to talk to you about that. That was sort of the locus of the dispute between the tribe and the federal agency about how much responsibility it needed to take when it allowed the pipeline in this area.

Our view is that when the army grants a permit to cross the river, it needs to think about the consequences of that even a little bit away from the river. Without an Army Core permit, there wouldn’t be a pipeline there.

BROWN: Jan, the Chairman of the Standing Rock Sioux, Dave Archambault, he has vowed to continue the legal fight. What are the tribe’s options?

HASSSELMAN: Well I think it’s important to understand that the recent action from the DC circuit doesn’t end any of the lawsuits at all. The lawsuits will continue. We have a lot of additional legal issues to address about whether they complied with the Clean Water Act, whether they complied with environmental review requirements. The only thing that’s been acted on is this preliminary injunction request under the National Historic Preservation Act. So the litigation will continue.

Unfortunately, the litigation will continue without any sort of injunction on work going ahead. So I think now what I would characterize it as a race against time. Can we get these legal issues resolved before Dakota Access tries to punch through this area and build their pipeline and get it finished? Yet again this is why we need the administration to step up and say this isn’t the right place, this isn’t the right time. We’re going to go back and do this right. I think that gives everybody a couple months to let the legal issues to play out a little bit and have another look at whether this is the right place for a pipeline crossing the Missouri River, and deescalate some of the tensions out there with the heavy handed police presence.

BROWN: Jan last question for you. I’ve seen some videos from activists and organizers on the ground who say that the construction of the Dakota Access Pipeline hasn’t stopped, that the construction is ongoing. What have you seen? What are people telling you?

HASSELMAN: There’s no question that the pipeline construction is ongoing. They started construction in late May. They have completed construction in many areas and are actively undergoing construction in other areas. That’s never not been the case. There was for several weeks, court injunctions around the immediate area of Lake Oahe. Those injunctions are now dissolved and there’s nothing from the court that would prevent them from going up to the water’s edge. They still don’t have a permit to cross Lake Oahe. That’s the critical issue now of whether they should. The government has asked that they stand down on construction within 20 miles of Lake Oahe. So far it appears that they are refusing to agree to that and we’ll just have to see what that does to the ultimate decision.

BROWN: We’ve been speaking with Jan Hasselman. He’s the lead staff attorney representing the Standing Rock Sioux government. He’s from Earth Justice’s north west regional office. Jan we appreciate your time today. Thanks a lot.

HASSELMAN: Thank you. Take care.

BROWN: Thanks for watching the Real News Network.

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