The rule of law. Four words that are cited over and over as the reason the water protectors at Standing Rock should back away from their efforts to stop the Dakota Access pipeline. The reasoning goes: The rule of law makes it OK to stand way over there, hold a sign, until this dispute goes away. Shhh! Be quiet. The pipeline will be built as planned.
And on Monday, using a snowstorm as an excuse, the governor dipped into his legal tools and called on the most powerful words in his arsenal: “I, Jack Dalrymple, Governor of the State of North Dakota, order a mandatory evacuation of all persons located in areas under the proprietary jurisdiction of the United States Army Corps of Engineers located in Morton County …”
The rule of law. The governor issued this proclamation knowing full well that none of the people at the camp will leave after his lofty proclamation. He knows that in order to enforce the rule of law, there will have to be a massive law enforcement action where hundreds of people are rounded up and incarcerated.
And the word from the Standing Rock Sioux tribe and its allies is as expected. “This state executive order is a menacing action meant to cause fear, and is a blatant attempt by the state and local officials to usurp and circumvent federal authority,” Chairman Dave Archambault II said in a news release. “The USACE has clearly stated that it does not intend to forcibly remove campers from federal property. The Governor cites harsh weather conditions and the threat to human life.
“The most dangerous thing we can do is force well-situated campers from their shelters and into the cold.”
“As I have stated previously, the most dangerous thing we can do is force well-situated campers from their shelters and into the cold. If the true concern is for public safety than [sic] the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings. This is a clear stretch of state emergency management authority and a further attempt to abuse and humiliate the water protectors. The State has since clarified that they won’t be deploying law enforcement to forcibly remove campers, but we are wary that this executive order will enable further human rights violations.”
But that’s it. Every time the state of North Dakota and Morton County have had the opportunity to deescalate, they favor the more violent course. Instead of crossing the bridge, acting as a governor of all the people, Dalrymple responded to the crisis by calling up the National Guard and then writing checks as fast as he could for more law enforcement to act as a military. The state’s clear and consistent message is comply or else.
And that’s because there is an urgency that’s driven by the corporate sponsors of the Dakota Access pipeline. Truth be told: The rule of law takes too long. The pipeline has a schedule. So any disagreements about interpreting that rule of law must be accomplished as a matter of academic debate. The pipeline must be built. Now. (The company can’t even seem to wait for a court to rule on its own action.)
Then, the rule of law is such a funny phrase. One I have heard many times. It’s what was said in Washington, Oregon, and Idaho when Native Americans insisted that treaties gave them the right to fish for salmon. The states disagreed and used the power of government to arrest people. Many, many Native people. Until finally the courts said, wait, the rule of law has to include the Constitution and the powerful Article 6 that declares “treaties as the Supreme Law of the Land.”
In the end the states were wrong. One idea that came out of that litigation was that treaties had to be read as the tribal negotiators would have understood the words.
Imagine that. So the rule of law means that the tribal interpretation of treaty language is critical to understanding, and implementing, that sacred agreement.
There is another parallel between the salmon fishing treaty battle in the Northwest a generation ago and the fight for clean water by the Standing Rock tribe. There is no way that salmon would have survived as more than a curiosity had the tribes lost their treaty claims in the 1970s. States and tribes were forced to work together so that salmon could prosper. Before the courts weighed in, there was an imbalance caused by overfishing, overbuilding, and a lack of respect for the natural world. But the treaty forced the states to get serious about working with tribes and managing a scarce natural resource. The rule of law won.
And that is exactly what upholding a treaty could do for water in the Great Plains. Especially if the state subscribes to the rule of law.
Mark Trahant is editor-at-large for Indian Country Today. Trahant leads the Indigenous Economics Project, a comprehensive look at Indigenous economics, including market-based initiatives. Trahant is a member of the Shoshone-Bannock Tribes and has written about American Indian and Alaska Native issues for more than three decades. He is a member of the American Academy of Arts and Sciences and has held endowed chairs at the University of North Dakota and University of Alaska Anchorage, and has worked as a journalist since 1976. Trahant is a YES! contributing editor.