A Legal Environmental Justice Perspective

by Dayna Jones, Jurist

The largest multi-tribal gathering of indigenous peoples in North America in over a century is happening now at the Sacred Stone Camp in North Dakota. Leading the cause is the Standing Rock Sioux Nation. The Standing Rock Sioux and their allies are standing against construction of the “black snake” Dakota Access Pipeline (DAPL), slated to run under the Missouri River and through their historically sacred tribal sites. The tribe states it had not been properly consulted prior to construction of the DAPL, a requirement legally mandated by Executive Order 13175 (PDF). The order stipulates that: “[e]ach agency shall have an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

The Standing Rock Sioux Nation’s assertion that the Army Corps of Engineers, an executive agency charged with overseeing and granting pipeline permits, has failed to meet the clearly-enunciated requirement of meaningful consultation, makes this case one of the strongest Native American environmental justice legal claims in history. Environmental justice, a paradigm born of a merger between the civil rights and environmental movements, is unique in Native American communities. This unique status stems from the legal classification of tribes as domestic dependent nations, sovereign as political entities, yet still under the plenary authority of Congress, as per Article 1, Section 8 of the Constitution. The plenary authority of Congress over the tribes is a stretch at best, as Native Americans predate the Constitution. Nonetheless, the Supreme Court has established a solid judicial body of law giving Congress, and only Congress, the ability to act in good faith as wards over the affairs of Indian Country, such as the 1886 case of US v. Kagama.