Gary Dorr at U.S. Capitol
A funny thing happened on the way to the Fort Laramie Treaty meeting in 1868; the Europeans walked in hoping and asking, and then they walked out with a signed, sealed, and delivered exposition of their rights in the Great Sioux Nation Territory. Yes the Europeans walked out with rights. That is correct. In U.S. v. Winans 198 U.S. 371, 381 (1905) the Court summarily came up with a new rule of treaty construction that a treaty was not a granting of rights to the Indians, but rather a granting of rights from them – and reserved those not granted to the tribes. So today the Oceti Sakowin Tribes (Great Sioux Nation) are asking for the Keystone XL pipeline to be denied a certification of its outdated permit which has gone beyond the four years it had to begin construction, based on a treaty stipulation, based on faulty consultation promises made, based on the need to protect resources vital to the general health, and wellbeing of the Great Sioux Nation Tribes, and their neighbors.
This is important from a legal, moral, spiritual and ethical view. The foundations upon which an American can build his reputation stem from among other things, “keeping your word.” There is a long string of broken treaties spread across this land which justify further conversation for another time.
For now, what must be known is that the Treaty Tribes of the Oceti Sakowin (Great Sioux Nation) and specifically the Rosebud Sioux Tribe are all standing up and asking for the Treaty once again to be honored so that the United States can “keep its word” to the People today. The People today include all the descendants: of treaty signers, of treaty makers. The Indian Tribes of the Oceti Sakowin are not standing before you today asking to violate any treaty. The Oceti Sakowin are, despite all the broken treaties, standing in unison asking you to honor the treaty rights which were reserved to the tribes and attached to the land.
The Keystone XL pipeline will cross the land of the 1868 Treaty.
It’s land which was also protected as part of the treaty and still carries the stipulations even though it has changed ownership and status. It’s no different than an encumbrance on any given piece of real estate today. Like I said though, the reserved rights of the Tribe on the land carried unique stipulations that have been forgotten. The Treaties are the Supreme Law of the land. Article 6, Clause 2 of the United States Constitution holds that the U.S. Constitution, Federal Statutes, and Treaties are highest form of law in the land and that States’ judges must follow federal law in disputes arising between a federal law and a state constitution or state law. The Rosebud Sioux and the other tribes have treaty reserved hunting rights across the land. As a result of this treaty stipulation, the Rosebud Tribe retains the right to be consulted about threats to the habitat in the 1868 treaty lands. Under Section 106 of the National Historic Preservation Act, the Tribes should have been consulted prior to the Pipeline approval. They have yet to be consulted by the Federal Government or TransCanada. The South Dakota Public Utilities Commission should not supersede the Treaty stipulations and precede the consultation required by the Federal Government. Admittedly, the process has been skewed (to put it lightly), and it puts the most vulnerable, rural tribal population at risk of losing their drinking water when the pipeline leaks into the Oglala Aquifer, and the Missouri River. 2.3 million Americans take drinking water from the Oglala Aquifer, not just tribal populations. Countless other farm fields also get irrigation water from the Oglala Aquifer. The Keystone XL Pipeline is a 36 inch pipe. It’s not like any other pipe running across our land. It is of a class unto itself. It’s under 1,600 psi at peak, your average ¼ inch car wash wand? 200 psi and it doesn’t have any possibility of having Benzene, Acetone, Ethyl Benzene and Polycyclic Aromatic Hydrocarbons. Those are all fancy words for chemicals which are cancer-causing. The Keystone (1) pipeline had 14 leaks in the first 18 months of operation. The TransCanada stance is that this Keystone XL pipeline will leak “once every 250 years”. How is that for you? You really believe that? Neither does the Rosebud Sioux Tribe or any other tribe of the Oceti Sakowin.
The Tribes of the Oceti Sakowin are walking into the public domain and hoping and asking. They’re hoping a funny thing happens, and the public, the states, and the federal government will all agree that keeping promises made generations ago are good examples of keeping your grandfathers’ words.
Gary Dorr is a media and logistical coordinator for the Rosebud Sioux Tribe’s Shield the People project. After serving 11 years in the U.S. Army, he attended Haskell Indian Nations University where he earned a Bachelor of Science in Business Administration.