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The Dakota Access Pipeline and the Tyranny of the Majority

Twitter/Unicorn Riot/Water protectors attached themselves to construction equipment in an effort to stop construction in September 2016.

Why doesn’t the Standing Rock Sioux Tribe have a say in construction of the Dakota Access Pipeline?

President Donald Trump recently announced that the United States will soon become the dominant country in oil production. He wants to increase the extraction of oil and ship oil to other countries. President Trump also stated that he had the courage, energy, and will to organize and push through the Dakota Access Pipeline, despite organized protests by Native Americans, the Standing Rock Sioux Tribe, and environmental groups.

Trump suggested that greater economic growth and employment will be gained by drilling more U.S. oil and quickly passing oil to refineries. Trump overruled President Barack Obama’s injunction to have the Army Corp of Engineers seek a new plan that rerouted the Dakota Access Pipeline away from the Standing Rock Sioux. A new sitting president, believing he has an electoral mandate, has the right to overturn administrative decisions made by previous presidents. Republicans favor putting aside tribal and environmental concerns in favor of rapid economic development. President Trump seems more willing than former President Obama to encourage more oil drilling and shipping of oil to market, despite possible environmental or minority group disadvantages that might be caused by such actions.

Recently, a federal judge ruled on the Dakota Access Pipeline controversy and found that the Army Corp of Engineers did not fully study or report on all significant tribal rights and environmental issues. A federal court ordered the Army Corps of Engineers to provide additional study and information about whether the Dakota Access Pipeline rupture could endanger water quality, affect fish, and animals hunted and consumed by Standing Rock Sioux tribal members. The court, however, did not order the owners of the Dakota Access Pipeline to stop shipping oil until new studies and arguments were made before the court. Usually projects that have not reported on significant environmental and human hazards are stopped until further review is completed.

While additional studies, previously neglected, might show that the Standing Rock Sioux people and their hunting and fishing products are at risk from the Dakota Access Pipeline, such a finding would not necessarily lead to stopping pipeline oil shipments. The National Environmental Policy Act of 1970provides procedures for securing evidence about the possible negative environmental impacts of a project to harm local people, plants, and animals. The decision on whether to stop a project like the Dakota Access Pipeline depends on the goals and values of the sitting administration.

During the 1970s, the Northern Cheyenne won a case declaring that the Northern Cheyenne reservation was guaranteed by treaty to have access to clean air. Similarly in 1998, Isleta Pueblo won the right to clean water against the City of Albuquerque, which was dumping unsafe water upstream from the tribe. In both cases, the administration and the Environmental Protection Agency strongly supported the tribes.

A similar argument that Indigenous Peoples have rights to clean water and clean local environment, which are guaranteed and implied in treaty rights, could be made for the Standing Rock Sioux. However, the decision on whether to proceed with shipping oil depends on President Trump and his appointed administrators in the EPA. Indians have the right to file environmental studies, but do not have the power to overrule governments that will not honor tribal wishes.

One could appeal to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which in such cases ensures Indigenous Peoples free, prior and informed consent. However, within the rules of UNDRIP, Indigenous Peoples have the right to be heard, but the decision making on whether to approve a project belongs to the national government. Indigenous Peoples do not have the right to veto projects that will do them significant harm. Such a right is considered a “special right,” not shared by other citizens. Consequently, the tyranny of the majority holds sway over Indigenous Peoples.

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