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Bigger Than Law

An Indian perspective on the protest at Standing Rock


I. In Which We Attend A Rally For Those Speaking Against The Dakota Access Pipeline, And Hear Several Girls Speak So Powerfully We Nearly Turn Our Face Away From The Beauty

On the afternoon of September 9, 2016, an injunction sought by the Standing Rock Tribe against the Dakota Access Pipeline was denied by Federal District Judge James Boasberg. Within a few hours the Obama administration, the Department of Justice, and the Army had issued a joint statement requesting that construction of the Dakota Access Pipeline just north of the Standing Rock Reservation be halted until further assessment could take place. I was at a rally in Bismarck with hundreds of others when the government’s request went public, standing in the rain on the long, manicured lawn leading up to the North Dakota capitol building, listening to several Lakota girls give speeches on a bullhorn. I had never heard young people speak so eloquently and passionately, and as I listened I began to feel something beautiful and dangerous to the idea of America was happening. Their words were so powerful, in fact, I nearly cried. Luckily for me I’m an Indian man, and we only cry in ceremony.(1)

Earlier, when we had first reached the capitol lawn, a group of kids carrying signs that expressed the value of water, chanting Mni Wiconi!, marched down a street and onto the capitol lawn. A call and response took place in which the kids called out the phrase and the people on the lawn responded with the English translation. The rain poured down, and I regretted not bringing, as many others had, a garbage bag I could use as a raincoat. A number of people, several of whom spoke in Lakota, gave their thoughts on the pipeline, the spiritual value of water, and what the larger meaning of the protest was. There was no mention of sovereignty. A hundred yards beyond us a line of North Dakota state police split the capitol lawn, separating us from the capitol building. They wore brown riot helmets to match their uniforms, and they remained, like a ghostly image frozen into a TV screen, for the entire rally. They did not speak, move, or respond, even when some of the rally-goers, stood before them, chanting Mni Wiconi! Mni Wiconi! Mni Wiconi!(2)

(1) I use the term “Indian” because, in my experience, most reservation people still use the term, even if we also refer to ourselves by our respective tribal names, in our respective languages. I am, however, aware of the problems that go along with calling ourselves Indians, a misnomer brought here by Columbus.

(2) Water Is Life! in the Lakota language.


II. In Which We Discuss The Crimes Committed Against The Great Sioux Nation, And How The Supreme Court Gave Congress Permission To Break Treaties

The original Great Sioux Reservation was established by the Fort Laramie treaty of 1851, setting up the legal homeland for the Lakota, Dakota, and Nakota peoples, who refer to themselves collectively as the Oceti Sakowin, or the Seven Councils Fire (3). A second Fort Laramie treaty in 1868 reduced overall reservation land, designating land that had formerly been part of that reservation, in addition to large tracts of land to the north, west and south, as unceded territory, to be used by a number of tribes in the region for subsistence purposes. The next agreement, in 1877, marked the end of legitimate relations between the Oceti Sakowin and the U.S. The result was a forced sale of the unceded territory of 1868 because gold had been found in the Black Hills by an exploratory expedition led by the infamous Custer. Initially they had refused to sell, as the Black Hills are a place held sacred by the Oceti Sakowin.

Congress’ response to this refusal was to pass a bill cutting off subsistence appropriations owed to the tribe from the previous treaties, effectively telling the Oceti Sakowin they would starve if they did not sell, a situation that resulted directly from the decimation of the Plains buffalo herds, the primary food source for most Plains tribes. Following that, in 1889, Congress partitioned the Great Sioux Reservation, without negotiation or consent on the part of the tribe, into five smaller reservations, violating the 1868 treaty and illegally making 9 million acres available to non-Indians for ranching and homesteading.

These treaty violations and subsequent land thefts set the stage for the creation of Lake Oahe by the Army Corps of Engineers and the Bureau of Reclamation starting in 1948. The filling of Oahe, less a lake than a massive, 231-mile-long reservoir that makes up the eastern boundaries of the Standing Rock and Cheyenne River reservations (the former eastern edge of the Great Sioux Nation), swamped over 200,000 acres of tribal land. The Dakota Access Pipeline, protested by the blood, cultural, and political descendants of those original treaty signees, is set to cross under the north end of Lake Oahe on land that, according to treaty, should never have left Indian control.

American empire, however, finds ways to justify itself to itself on paper, and much of the irreversible damage done to indigenous nations in the U.S. since the late 19th century—of which Lake Oahe is one small part—can be traced back to a 1903 U.S. Supreme Court decision, Lone Wolf v. Hitchcock (4). The case resulted from the 1892 attempt by Congress to forcefully reduce and allot Kiowa land in what would later become Oklahoma. Despite fraudulent negotiations by the federal representatives, and terms that were not agreed upon by the necessary number of Kiowa representatives, Congress ratified the agreement. The Kiowa filed suit, and the resulting decision is one of the most egregious ever handed down in the U.S. To summarize: though evidence was overwhelmingly in favor of the Kiowa, the Court determined Congress had plenary power over Indian affairs, giving it absolute legal power over tribal nations. The immediate result was the abrogation of every treaty the U.S. had signed with those nations. The later results were policies that, among many other things: reduced reservations; allotted reservation land; determined which offenses tribal courts had jurisdiction over; made Indian people American citizens without consent; allowed Congress to terminate its legal relationship with certain tribes; forced tribes to negotiate with states regarding casino profits; and allowed for, as in the recent case of Apache land in Oak Flat in Arizona, the appropriation and sale of tribal land.

(3) Sioux is a bastardized Ojibwe term, one that French trappers and traders used to refer to all three groups. But as with nearly all tribes in North America, the Euro-American term for the tribe was later adopted into legal documents, and thus most non-La/Da/Nakota North Americans refer to them as such.

(4) There are numerous other cases and laws worth looking into, both because they shed further light on the ways in which the U.S. has limited tribal sovereignty and because they nakedly reveal the ways in which the U.S. federal government created, fabricated, and justified the system that allowed for the “legal” colonization of the continent. A good place to start is the Marshall Trilogy, a set of Supreme Court cases from the early 1800s involving the Cherokee; and the 1887 Dawes Act, a law that set into motion what is commonly known as the Assimilation Era.


III. In Which We Briefly Discuss What’s Going On Out There At Standing Rock, And How It’s Both About Law And Not

For those tracking the situation at Standing Rock, things can get a little muddled, in large part because it’s so difficult to find a source effectively addressing the historical context that gave rise to this moment (5). Initially there were vague comments from the tribal side about sovereignty and treaty land, the legitimate question of why the original pipeline route was changed from one that would have brought it near Bismarck to one just north of Standing Rock, and potential environmental issues (6). Of late, however, the focus has shifted to the clashes between the water protectors camped at Sacred Stone and those keeping the protectors from stopping pipeline construction, namely Dakota Access’ private security forces and the militarized police from North Dakota and other states. The questions asked by U.S. media concern whether or not the protectors are acting in an illegal manner, whether the pipeline will disturb sites historically and culturally significant to the Standing Rock Tribe, whether the pipeline is a definite threat to Lake Oahe and thereby the lower Missouri and Mississippi River ecosystems, whether the permitting process was properly carried out by the Army Corps of Engineers, and what is going on with the various injunctions filed by Standing Rock and more recently the Cheyenne River Tribe. All of which are legitimate questions, but all of which are legitimate solely within the context of U.S. law.

The problem with discussing the situation merely at the level of law, or as if it were merely a regional, single-tribe issue, is that, when it comes to Indian issues, we are ultimately discussing tribal sovereignty, and the ways in which tribal nations have had their powers of sovereignty limited by erroneous Congressional actions and specious Supreme Court decisions, the resulting complications of which have stifled Indian Country economically, legally, and politically. We are ultimately discussing tribes having to exist under and within a U.S. court system that fundamentally supports, as any nation’s courts would, the continued existence of the U.S. before it supports the continued existence of tribal nations. The difficulty with this is that tribal cases, because they often involve land and resource rights that predate the existence of this country, challenge the United States both systemically and ideologically. To study the history of Indian law and Supreme Court decisions regarding Indian issues is to bear witness to the machinations of a system that must both acknowledge the political existence and rights of tribal nations while simultaneously maintaining the position of superior sovereign for the purposes of its own systemic integrity.

Without this level of understanding there’s no way to grasp how it came to be that the Lakota of Standing Rock are forced to block pipeline construction on their own treaty land, itself illegally subsumed by the U.S., because the pipeline threatens their water supply, which itself comes from federally-created Lake Oahe, an irrigation project that flooded hundreds of thousands of acres of Oceti Sakowin land without consent. It is not possible to understand why hundreds and sometimes thousands of people have been living at Sacred Stone Camp on the northwestern banks of that lake for months now, or why that camp has drawn people, both tribal and not, from all over North America, come to express their solidarity with the protest. And neither is it possible to understand why many of those people are daily willing to risk aggressions on the part of Dakota Access security and militarized police, aggressions that have included verbal attacks, physical assaults, trained attack dogs, mace, regular arrests under false accusations of inciting riots, and most recently rubber bullets, Tasers, and beatings—all on land that is, in a number of ways, Indian land.

(5) This is the case, however, with all Indian issues—accurate history is difficult to access, exactly because it has been left out of the standard educational curriculum.

(6) The route was changed because of concern over the possibility of damaging municipal water supplies in the Bismarck area, one of those read-between-the-lines moments that has been largely pushed aside.


IV. In Which We Note The Beauty Of Burgeoning Global Indigeneity, Why Americans Have Always Been Just A Little Bit Afraid Of Indians, And The Meaning Of Sacred Stone Camp

Some 12 hours before the rally at the capitol, at the end of a 700-mile journey, we drove into Sacred Stone Camp under the cover of darkness. We had taken back roads to avoid the military-style checkpoints at the southern entrance to the Standing Rock Reservation, manned as of that day by the National Guard. We did so because there were comments on various social media platforms that the Guard was not allowing people through, that people were being harassed. There was a palpable tension that ratcheted up as we drew closer to the camp, and without meaning to we became quiet, which is saying a lot when all four people in the car are Blackfeet. At our final stop before we reached the camp, at a lone gas station just off the highway, we encountered three Ford F-350s as they emerged from the darkness of the connecting county road. They circled the parking lot and sped off into the dark. Each nondescript truck had been manned by a single driver, and were it not for the fact they were driving overly fast and eerily reminiscent of fighter jets in formation, at 2:30 a.m., I would have thought little of them. Instead I asked myself, for the nth time, what the defining aspect of the relationship between the U.S. and the indigenous nations of this country was, and I settled yet again on that relationship being militaristic in nature. I asked myself why so many Americans have been, to varying degrees, afraid of Indians, and I settled yet again on the fact of our continued existence calling into question the legitimacy of this vast American project, one that has long since extended beyond the boundaries of this continent.

That evening, after the rally, and after the Obama administration had made its statement, the mood at camp was markedly different from what it had been earlier. The tension of the anticipated weekend protest action had dissipated. The change in atmosphere, though, could not keep me from thinking about what I had noticed walking around camp that morning. There were people at Sacred Stone willing to do whatever it would take to stop the pipeline. There was a presence there both of the people and larger than the people; it filled the camp, and I had never felt anything like it. There was no desperation in any of it, only clarity of purpose, a willingness to sacrifice, an immense calm and positivity running through everyone.

I asked myself where else in the U.S. one could go to find this kind of relationship to land and water, and I believe the answer is nowhere other than somewhere else in Indian Country.

The next night in camp, our last, the atmosphere approached celebratory. Like a powwow without the dance arbor, the Zipper, or the Chinese-food vendors, but with the familiar tipis, horse riders, and that ever-present pair of teenage girls walking around camp in the early evening, talking quietly, listening to Kanye on a smartphone, hoping to cross paths with that cute guy and his friend. The differences, those that reminded me where I was, were the entrance protocols, songs, and talks given by indigenous people from all over the globe; the makeshift medical tent run by ragged, non-Indian volunteers; the half-whispered plans to travel to protest sites and the necessary caution that surrounded those plans. What brought all of these disparate elements together was the laughter I heard everywhere in camp, because no one is more ready to enjoy themselves in the middle of hell than Indian people.

What I think about most often, though, since returning from Sacred Stone, is the entrance to the camp, lined with hundreds of flags, each representing a tribal nation supporting the protest at Sacred Stone. If there was talk of sovereignty anywhere in camp, it was limited to personal conversations I was not privy to. And, even if there were such talk, chances are it would not be at the level of discourse Indian people so desperately need. It’s not enough to utter sovereignty; the word must be underpinned by a kind of legal and historical knowledge that, until recently, was unavailable to any but the most dedicated researchers, the rarest of specialists. But sovereignty, or the desire for it, also requires resistance at both the micro and macro levels. Sometimes this means refusing to allow a degrading remark to pass; sometimes this means standing in the way of a pipeline and claiming a treaty the U.S. has, for all intents and purposes, not legitimately acknowledged in over 140 years. I have asked myself, given the collective political condition of the tribes, what the meaning of those flags might be, which is to say, the larger meaning of the situation at Standing Rock. Are the flags more than decoration? Is the situation more than a protest? To grow up an Indian in Indian Country is to know you are sovereign, but to have no idea how that might work.

I believe there are two Sacred Stones. There is the physical, the camp itself: the tipis and tents, the powwow chairs, the campfires, the cars and trucks parked everywhere askew, the long, flag-lined drive, the Indians and the handful of non-Indians performing that delicate balancing act of getting along without pretending we are the same. There is Lake Oahe, whose calm surface, on a clear day, lights like a flaming mirror. There is the drill pad just to the north, on Oahe’s western shore, where Dakota Access intends to run the pipeline under the lake. There are the prayers and songs, which, as with any ceremony, may stop, but only temporarily. These are the immediate elements that make up the awful beauty of this indigenous protest; beautiful because there is no togetherness like that of Indianness, awful because the reason we’ve gathered is a reminder of why we call ourselves Indians in the first place.

The second camp is more difficult to grasp or describe. This camp is the idea and feeling of Sacred Stone, which have already become separate from the actual camp, from the actual protest sites. We entered this second camp, each one of us, all of America, the moment the pipeline was first imagined, the moment the first water protectors made the decision to stop the pipeline, the moment the first colonists landed on the eastern shores of this continent and were met there by indigenous people. To enter into this second camp is to enter the questions that have haunted Indian Country and America for centuries, questions about land, water, history, ownership, honor and justice. The question of whether tribal nations can truly defend what is theirs when the laws they must live under are the laws of empire. The question of whether America is capable of being the kind of nation it claims to be, but never was. This second Sacred Stone has already become the new symbol of hope and heartbreak for American Indian people, the symbol into which all these separate, lesser questions are poured, where they become one: the question of tribal sovereignty.

Neither the physical camp nor the idea of the camp can answer this question; they are simply the latest catalyst and vessel for Indian Country, the way we will carry this issue forward in the years to come until the next significant indigenous protest arises and replaces it. How Indian people respond in the interim will not change or influence laws or court decisions directly, but our individual and collective responses will affect the conversation that surrounds the issue of tribal governance. Perhaps more importantly this conversation, according to our ignorance or lack thereof, according to our willingness to act or merely sit idly by, will help determine the shape of the idea of tribal nations in America. That idea will speak both to how we think about ourselves now and to our capacity to imagine the future we want. The distance between the current moment and that idea will tell us, tribal and American citizens alike, what work there is to be done.


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