Environmental protests that spring up around development projects on tribal lands point to an underlying systematic injustice. Native Americans often lack property rights to their traditional lands and waters. The protests now going on over the Dakota Access Pipeline are in part symptomatic of this gap.
Resolving environmental conflicts between Native Peoples and developers is a good thing. But if the legal ownership of indigenous people to their own lands is left unresolved, then even the best-crafted “solution” merely ratifies the dependence of Native Americans on outside parties. Being dependent means being vulnerable to harm even by well-meaning others.
At Standing Rock the Dakota Access Pipeline protests are harming the very people they are trying to help. It is more than a little ironic that the protesters themselves are a source of inconvenience and frustration in the day-to-day life of the Sioux living in the immediate area.
Look at what’s happening in the town of Cannon Ball, a small community of about 840 souls on the Standing Rock Indian Reservation.
The district chairman of the town, Robert Fool Bear, Sr. told CNN that "It irks me. People are here from all over the world." He went on to say that. "If they could come from other planets, I think they would."
Now, Fool Bear says, because of faceoffs between law enforcement and the protesters, “you have to pass through a police checkpoint to reach” the town. With the roadblocks that have sprung up around the protests, residents “are often forced to go more than 40 miles out of their way” as they go about their daily business.
But there’s more.
As winter sets in, the presence of outside protesters will become costly in other ways and many of the protesters are ill-equipped for a North Dakota winter. So even though Fool Bear doesn’t support the protest, he’s unwilling to let the protesters freeze.
As the temperature drops, the winds increase and the snow comes, Fool Bear will open the community gym for those without beds. As the growing pile of sleeping bags and blankets that sits in his office testify, the people of Cannon Ball are also willing to help those who have so inconvenienced them.
The protesters’ lack of understanding of the situation doesn’t simply extend to the challenges of winter on the Great Plains; their concerns about the harm the pipeline will cause are overstated.
While both rail and pipeline are safe, the Fraser Institute reports that “moving oil and gas by pipeline was 4.5 times safer than moving the same volume the same distance by rail.” Even when accident do happen “83 per cent of the pipeline incidents happened in compressor stations, processing plants and terminals, not in line pipe, which meant they were more likely to be contained. Similarly, only 15 per cent of rail problems occurred in transit.”
The Washington Post, which is no friend of big oil, reports that there “is no evidence that building a new oil pipeline would create a big new environmental problem in itself.” So why are environmentalists fighting? Because preventing the pipeline will make it “far harder for oil companies to make use of the Alberta tar sands without the pipeline.”
Several months ago, I published an article looking at the moral issues surrounding a proposed open pit copper mine in Alaska. The starting point of my analysis was the Orthodox Church in Alaska’s opposition to the mine for cultural and theological reasons.
Theologically, they saw the mine as an offense against the creation and so demanded that any proposed mine meet unreasonably strict environmental safeguards. (I must confess that I cannot see the connection between Orthodox theology and these guidelines but that’s a concern for another day.) The Church’s culture concerns seem clearer to me.
A mine would bring new jobs and economic opportunities to Alaska and to the Native People. While this is in many ways a good thing, economic development is a matter of tradeoffs. Whether development is to the benefit of the Native People of Alaska, I argued, is a question that they alone can answer.
The most harmful cultural effects of the proposed mine, the Church argued, would flow not from economic growth but from the harm it would do to traditional hunting grounds and fishing waters. Therefore, the Church joined with environmental activists and members of several local tribes in their call for stringent government regulation.
In both Alaska and North Dakota, there is no evidence supporting stricter environmental regulations. And in both cases, the argument against such regulation isn’t just that the scientific to support them doesn’t exist (or, in the case of Alaska, that the evidence was falsified).
The real moral problem is that, absent legally enforceable property rights -- the same rights that most homeowners take for granted -- even necessary and well-crafted regulations perpetuate the marginalization of a people living on land they have always lived on or has been promised to them by treaty.
As in Alaska, Native People in the Lower 48 typically have only a moral but not a legal claim to their own lands. Whatever the benefits or limitations of environmental regulation, they don’t solve this underlying injustice. Self-determination and economic development consonant with the community’s tradition requires that they have a legal, and not just a moral, claim to their own lands and waters.
Just as in Alaska, third parties in pursuit of their own economic and political interests have co-opted Native American concerns in North Dakota. "It's about water, not just native people," one protester said. "We don't get another Earth."
This last point highlights economist P.J. Hill’s argument that environmental questions are conflicts about property rights. The practical question at Standing Rock, as at Pebble Creek, Alaska, is not whether to use the land but how to use it. Should it be left “undeveloped” (an anthropologically and historically problematic concept) or used to transport oil (even as it is being currently used to pipe natural gas)?
The political problem at Standing Rock, like at Pebble Creek, is who gets to answer the question. This brings us back to the moral problem of community’s right to determine own future. While all these questions are interesting, the only issue I’m raising here is the moral question. Before we can craft a practical or political solution, we need to understand the moral foundation of the problem.
Political fashions shift and to the degree that native rights are dependent on fashion rather than law, they aren’t in any meaningful legal sense rights at all; they are favors from those in power, or from those who are seeking power, to those on the margin of society.
What today is a protest about the rights of native people and clean water might tomorrow be just about native rights. But if recent – and more distant -- history is any guide, it is more likely that someday it will only be a protest about water, to the detriment of the self-determination of Native Americans.