The Trail of Broken Treaties Redux

Vine Deloria, Jr. famously penned a book, the Trail of Broken Treaties in response to over 150 years of the United States breaking its agreements with Native American Tribes.

The current Standing Rock action by thousands of Native American peoples and their allies is another chapter in this trail of broken treaties. The encampment was initiated to call attention to and halt the progress of an oil pipeline from Canada into the United States. The pipeline has now been rerouted several times, the most recent, away from the population center at Bismark, and through the relatively unoccupied lands near the Standing Rock Reservation. In fact the pipeline is slated to cross the river upstream of Standing Rock.

The Standing Rock tribe is  making two key points about this development. First and foremost, these sorts of pipelines burst or are breached and the oil tends to pollute the environment. The location of the pipeline in crossing  the river will at some point in the future, leak and cause pollution of the water supply to communities on the Stand Rock reservation, and really all downriver communities will be affected. The United States Federal Government has been lase fare about such many such oil spills in the past, leavogn enforcement and clean up to the corporations that administer the pipelines and essentially allowing corporations to not do their jobs and completely clean up any oil spills. If the Flint, Michigan lead pipe water pollution crisis is an indication of the power of the state and federal governments to protect citizens from pollution, where for years the governor of the state and the federal government now have known about the problem and done little or nothing to solve the problem, the citizens of the Standing Rock reservation are righteously acting to head off the probable oil leak in the future. Similarly, closer to oil pollution issues, the many thousands of pil spills that happen annually throughout the United States leaves little faith in the governments to help and protect citizens of the United States from such extreme environmental pollution.

In addition, corporations are rarely are held fully accountable. The EPA of the Obama Administration is now being called out for falsifying their study of the effects of fracking on the environment. Fracking companies are at this time fully protected by actions of the Bush administration and through the recent EPA study, now under serious scrutiny. It may be that the Obama Administration ordered the EPA to change their metrics to help the fracking companies to continue polluting the environment and developing more oil resources for the US economy. If this is a fact, hen this calls into question whether the same situation has now occurred regarding federal environmental clearance for the DAPL pipeline. Did the Army Corps alter its report to allow this economically significant project to proceed? Did the Army Corps not follow good consultation policy in order to clear the construction of the pipeline across Native American cultural and sacred sites, essentially destroying them? This is what the Standing Rock tribe has been saying for some months now, and is a distinct possibility.

The Standing Rock contend that this land was part of their original tribal territory. CRM laws in the United States give broad deference to tribes who identify cultural and sacred sites. most federal agencies now seek to work with tribes to avoid impacting and cultural sites. This is the intention and purpose of the federal CRM laws, and what most archaeologists are trained to think about ethically when they are learning their profession.

In addition, the Standing Rock tribes has rightly pointed out that their treaties state that the tribes on reservations “will” not be disturbed. This is an important part of the original Northwest Ordinance, even if historically it has not been adhered to. Because this is part of the treaty of the tribe, (Treaty of Laramie), which according to the US constitution becomes the supreme law of the land, these are laws that must be obeyed by the federal government and the states. Yet now we have a pipeline which is destroying sacred sites and crossing the main water source of a reservation which will at some point in the future leak and pollute the water. The pipeline is fully approved by the federal governments and the state government is so investing in this project that they have set their militarized state police against the Stand Rock water protector camp.

If these are the correct facts of the situation than the situation, and from the many videos that have appeared on social media, it appears that all of the details are true, than this is a case again of the federal government not protecting the rights of a tribe which signed away tens of thousands of acres of land for the safety and security of a permanent reservation. as such, this is a case of the federal and state government breaking the treaty of the tribe.

Lawrence O’Rourke said “They might as well re-write the Constitution. They teach us we have freedom of religion and freedom of s speech, but it is not true. This was our first place, our first home. It is still our home but we do not have the same rights as other Americans.”

Between 1963 and 1990 there raged a conflict over Native American religious freedom in northern California. Named the G-O Road controversy, standing for  Gasquet-Orleans road, the issue was about whether logging companies would be allowed to log timber from this vast wilderness between the two towns over the protest of several Native tribes that claimed that this wilderness in the high country was where the tribes conducted religious ceremonies. The tribes claimed that the logging activities would impact their religious ceremonies and they sought to halt logging activities.

The Area in question was within the Six Rivers National Forest, a management unit under the auspices of the Secretary of the Interior. The department of the Interior manages the Department of Agriculture under which is the Forest Service and BLMs and the other Department of Agriculture lands. All of these millions of acres under agriculture are technically managed as agricultural lands, and then subject to harvesting of their timber resources. This is why the national forests and BLMs allow for contracts with Timber companies to log off portions of the forests.

The proposal for logging the high country was challenged by the Sierra Club and native tribes (Tolowa, Yurok, Karok) who have used this landscape for many thousands of years for spiritual and religious ceremonies.  In the 1960s when planning began for the logging of the landscape, the tribes did not want the G-O road to be built through the wilderness to make it easier for logging to occur. the tribes and various environmental organizations had been seeing huge losses in the traditional environments in the region due to logging. Redwood forests had been logged out of existence by some 100 years of logging in northern California. In the 1960s, these forests of some of the oldest trees int he world. were a fragment of their former size and majesty. The tribes and environmental organization sought to protect and preserve these final traditional environments.

Until 1978, the tribe had few laws to help them fight the logging. In 1978 the American Indian Religious Freedom act was passed. Previous to this, the tribes only had Cultural Resources protection laws (ARPA) to help them. In 1978 an archaeology firm was hired to determine if religious sites would be impacted. The firm, Theodoratus Cultural Resources,  determined that

“Field data indicate that the increased intrusion into this sacred region would adversely affect the ability and/or success of the individuals quest for spiritual power [419].

“The nature of Northwest Indian perceptions of the high country and the requirements of their specific religious beliefs [420] and practices associated with the high country make mitigation of the impact of construction of any of the proposed routes (1-9) impossible [421].”

The first court case was filed in 1983 and was not decided until 1990. The District Court case was decided in favor of the Cemetery Protective Association with a permanent injunction against building a road. The Appellate case was filed in 1986 and upheld the lower court ruling on the grounds of building the road would deny the free expression of religious for Native people.

The Supreme Court heard the Case in 1987 and the court decided that logging would not impede the free expression of religion of the native people. The Forest service’s plans to permit logging and build a road would not adversely impact Native American religious rights. The lower court decision was reversed.

Having lost the Supreme Court, the Tribes began seeking other remedies. In 1990, The Tolowa tribe succeeded in getting a new wilderness designation passed by the Forest service. The Smith River National Recreation Area was applied to the landscape in question and imposed new restriction against logging and in favor of more natural settings. This act and the inclusion of a part of the original Six Rivers Wilderness into the Siskiyou National Wilderness saved the landscape and preserved native American religious rights.

Examples like this, of history where tribal rights have been overrun, can help tribes today fight similar attempts to ignore and take away tribal rights.

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